General Damages 2017-2019
Cases
Seligman -v- Kuiatkowski & anor
[2018] IEHC 102 (23 February 2018)
JUDGMENT of Mr. Justice Barr delivered on the 23rd day of February, 2018
Introduction
1. This action arises out of a road traffic accident which occurred on 12th December, 2014, when the plaintiff’s car was stationary on the M50 motorway in a line of traffic, when it was rear-ended by a vehicle driven by the first named defendant and owned by the second named defendant. Liability is not in issue between the parties. There is no plea of contributory negligence, as it was accepted that the plaintiff was wearing her seatbelt at the time of the accident.
2. Special damages have been agreed in the sum of €19,757.72.
The Plaintiff’s Evidence
3. The plaintiff is 79 years of age, having been born on 16th August, 1938. She has led a varied and colourful life. Prior to 1985, she ran a number of businesses in the area of children’s clothing. In 1985 she commenced practice as a barrister. There she joined her husband, who had also been a barrister for many years. The plaintiff is also a very accomplished bridge player. She represented Ireland at senior level on twenty-two occasions and she was proud of the fact that she and her playing partner, were the most successful female pairing in the history of Irish bridge. She is now a widowed lady, who has four children, eight grandchildren and three great-grandchildren.
4. There are a number of matters of relevance in her pre-accident medical history. In 1989 the plaintiff fell down a flight of four marble steps, causing a fracture to her coccyx. Two years later in 1991, the plaintiff slipped in Tesco supermarket, causing an injury to her back. She required extensive treatment at that time and came under the care of Dr. Declan O’Keeffe, consultant pain specialist. As it was not possible to get rhizotomies in Ireland at that time, she travelled to Holland for this treatment. The plaintiff stated that by the mid-1990s she had made considerable improvement and by approximately the year 2000, she was pain free and fully mobile. She says that she had no further back injury or complaints from that time until the accident the subject matter of these proceedings. In particular, in relation to an aspect that is relevant to matters which have to be considered by this Court, she stated that she had no difficulty ascending or descending steps or stairs prior to the road traffic accident.
5. In 2008, the plaintiff received a devastating diagnosis. She was told that she had bi-lateral lung cancer and that it was the opinion of her specialists, that she had only three weeks to live. She had extensive chemotherapy, which was difficult for her due to the severity of the side-effects of this drug. During her treatment, the Head of the Oncology Department in the hospital, approached her and gave her the option of being a “guinea-pig” in relation to a new drug which had been cleared for use in trials, but was not yet generally available on the market. The plaintiff accepted the offer as she felt that she had nothing to lose by participating in the trial. Thankfully the drug was successful. The plaintiff stated that while she was not in remission, her cancer was under control. She stated that she had been told in the hospital that it was regarded as a miracle cure. It is against that background, that the court must consider the injuries sustained by the plaintiff in the accident.
6. On the day of the accident, the plaintiff was on her return journey from Dublin to Co. Wexford, where her husband was a resident in a nursing home. The plaintiff had been in Dublin for the purpose of receiving an injection to her eye on the previous day, for the treatment of age related macular degeneration. She was unable to drive home on the day that she received the treatment, but was cleared to drive on the following day. The impact between the vehicles was quite severe. The plaintiff’s car was shunted into the car in front and it in turn was shunted into the car in front of it. As a result of the impact, the plaintiff experienced pain and bruising to the left-side of her chest and ribs and there was also bruising on her leg and thigh. She thought that this had been caused when her body struck the steering wheel as a result of the impact. She also experienced pain in her neck and lower back. She was attended at the scene by ambulance personal, but did not require hospital treatment. She was driven home to Wexford by her son-in-law.
7. Over the following days, she developed more severe pain in the affected areas. She also found that she had a pain in her eye for approximately one month. She stated that she had not had any such pain on previous occasions on which she had received the injection treatment to the eye. The plaintiff was not able to get an immediate appointment with her G.P., so she just did the best that she could until she saw the G.P. on 17th December, 2014. She took analgesics at home during the intervening period. When seen by Dr. Sandra Clare on 17th December, 2014, the plaintiff had bruising on her right and left legs. She was tender on palpation of her trapezius muscles and on her back muscles. She was unable to raise her arms fully over her head due to upper back pain and stiffness. She complained of minor blurring of vision in the right eye, but that was beginning to improve. Her mobility was reasonable, but she was stiff after sitting. The G.P. prescribed analgesia for her pain.
8. Unfortunately, during the month of December 2014, the plaintiff’s husband suffered a heart attack. He was removed to Wexford General Hospital where he was in ICU for two weeks. During this time the plaintiff remained at his bedside. She slept in a chair in the hospital for two weeks. That was clearly very difficult for her, having regard to the nature of the injuries which she had suffered in the accident.
9. After the two weeks, the plaintiff’s husband was moved to another ward, where he remained for a further fifteen weeks. During that time the plaintiff had returned to her house in Courtown, Co. Wexford. She was unable to drive to the hospital due to pain in her neck, upper back and arms. Each day, she would drive to Gorey, where she would park her car in the church car park. She would then take a bus to Wexford hospital. On the return trip, she would have to take a taxi from the hospital to Redmond Square in Wexford town, where she would get the bus back to Gorey. Usually she would arrive home at approximately 20.30 hours, having left her home at 11.30 hours that morning. She had to abandon this mode of transport, due to the fact that on one occasion when she returned to the church car park, there were a group of men and women behaving in a very rowdy fashion in the car park. She stated that she got a terrible fright. She decided that she would have to find an alternative way of getting to the hospital. She discovered that she could park her car at the train station and then take the train directly to Redmond Square, where she would take a taxi to the hospital. She would do the reverse journey in the evening. She did that for the entire of the fifteen weeks. She stated that she had to go to the hospital each day, as the catering staff would bring the food to her husband, but due to staff shortages, there was no one in a position to actually feed him. Therefore, it was necessary for her to be there to feed him his lunch and tea. The plaintiff stated that due to the severity of her neck and back pain, she found this regime very difficult. She was exhausted when she arrived home each evening.
10. The plaintiff stated that during 2015, her neck and back continued to be very painful. An MRI scan was carried out at the direction of her oncologist, to ensure that her pain was not cancer related. They were able to reassure her that that was not the case. However, the scan did reveal that there was severe arthritis in the cervical spine, with a bulging C3-4 disc. It also revealed extensive arthritis in the thoracic and lumbar spine.
11. The plaintiff stated that at that time she required a large amount of medication. She was taking approximately eight Solpadol per day and was also taking Difene. She had approximately nine sessions of physiotherapy treatment, which provided only limited improvement. She found that in 2015, her pain was getting worse. She was dragging the left leg. She had great difficulty ascending steps. She was only able to manage a maximum of 4/5 steps. She needed a wheelchair when travelling through the airport. The plaintiff stated that she did not have any problem with stairs prior to the accident. She also complained of crepitus on movement of her neck she found this very difficult, particularly when knitting and doing crochet while watching television.
12. When her pain persisted, she was referred to Dr. Paul Murphy, consultant in interventional pain medicine at St. Vincent’s University Hospital. He carried out a number of rhizotomies to her spine from her neck to her lower back. These were administered under general anaesthetic. The plaintiff would be given three, four or five injections on each occasion. The first such treatment was given on 11th November, 2016 on the right side and a further set of injections were given on 18th November, 2016 on the left side. These procedures produced a very good result. The plaintiff reported that she had been pain free for a period after the treatment. She had a further set of rhizotomies from L2 to S1 on 10th February, 2017. She had further such treatment in May 2017 and again on 5th January, 2018. Unfortunately, the plaintiff reported that she had not received any symptomatic relief as a result of the most recent treatment. She stated that she had been advised by Dr. Murphy that she would require a minimum of two further such treatments.
13. The plaintiff stated that in relation to her present condition, she does not have unbearable pain. She is not totally crippled. However, she experiences a constant pulling sensation in her neck, which goes down the left side of her body as far as her hip. This produces a constant ache in these areas. She finds it difficult to get up out of a chair, out of her bed or to go to the bathroom. Her main area of disability, is her inability to manage stairs. She stated that she plays bridge on a regular basis in the Regent Bridge Club on Waterloo Road, Dublin. When doing so, she is obliged to remain on the ground floor. This means that if there is a competition and some of the tables are situated upstairs, she cannot be one of the East/West pairs, who would rotate from table to table, as she is unable to ascend the flight of stairs to the second storey. She finds this frustrating and embarrassing.
14. The plaintiff recounted how she had recently gone on a trip to New York with her daughter, for the purpose of babysitting her young great-grandson. However, when they arrived at the apartment building, she could manage the short flight of steps to the main door, but was unable for the internal flight of stairs of approximately twenty-five steps. As a result, she was not able to go up to the apartment. Her great-grandson had to be brought to the hotel where she was staying, so that she could see him. She was distressed that the trip had been somewhat of a wasted exercise. In terms of driving a car, she is able to manage the journey from Wexford to Dublin, but she is not able to drive back on the same day. She requires analgesic medication on a constant basis. She rotates between taking Solpadol, Difene and Neurofene for varying intervals.
The Medical Evidence
15. By agreement of the parties, the medical reports furnished by the various doctors were submitted in evidence, without the need to call oral evidence from the doctors. It is not necessary to set out the content of these reports in extenso, a brief summary of the main conclusions will suffice.
16. As noted earlier in the judgment, the plaintiff was seen by her G.P., Dr. Sandra Clare, on 17th December, 2014. Her findings on that occasion have already been documented. The plaintiff returned to see Dr. Clare on 6th January, 2015, at which time she continued to complain of stiffness in the upper back and neck. Her range of movements had improved. She did not require analgesia as often as she had done. Her eye was improving slowly. Examination revealed that the plaintiff was tender around the scapular muscles and trapezius. Her arm raising had improved. Her bruising and general mobility had improved. Psychologically she was upset that her injuries had impacted her ability to care for her husband, who was very ill at that time and required a considerable amount of daily help. Dr. Clare’s opinion was that the plaintiff might require intermittent analgesia for neck and back pain into the future. If that did not resolve, physiotherapy treatment would be necessary. Her prognosis at that time was that the plaintiff should make a full recover within approximately three months. In the course of her evidence, the plaintiff stated that she had only come under the care of Dr. Clare when she had moved to Wexford and had attended her in the aftermath of the accident. She stated that she had not been impressed with the attention given to her by the doctor. She felt that she was somewhat dismissive of her complaints. The plaintiff had not remained with her as her G.P. after that date.
17. Due to the plaintiff’s ongoing pain, a query had been raised as to whether that could be due to the return of her cancer. However, investigations revealed that that was not the case. Dr. Janice Walshe, Consultant Oncologist, noted that the MRI scan indicated disc bulging from L2 to L5. However, there was no evidence of any cancer progression. It was this doctor who referred the plaintiff to Dr. Paul Murphy, Consultant Pain Specialist. He saw the plaintiff on 26th October, 2016. At that time, the plaintiff reported significant pain in the thoracic and lumbar regions bilaterally. She rated this at 6/7 out of 10. She also reported bilateral buttock pain extending to the posterior aspect of her thighs. There were no significant lower extremity radicular symptoms, nor any recent alteration in bowel or bladder habit. The pain was very much mechanical in nature. The plaintiff reported no significant neuropathic descriptors. Her pain detect questionnaire was in the negative zone for neuropathic pain.
18. Examination revealed that lumbar flexion was well maintained, however, extension and side flexion elicited discomfort. There was quite significant para-spinal tenderness extending throughout the thoracic and lumbar spine. She was noted to be tender to palpation over the sacroiliac joints bilaterally. The remainder of the examination was largely normal.
19. The plaintiff was asked to rate the impact of pain on her life generally and in the domain “mood” she rated that at 6 out of 10. She stated that she had become quite significantly upset and depressed as a result of her ongoing pain. She reported significant adverse impact with respect to the domain “walking ability” with a rating of 8/10. Sleep was adversely affected at 8/10. She reported difficulty getting to sleep and multiple episodes of waking with pain at night. Adverse impact was also noted across the domains “relations with other people”, “enjoyment of life” and “ability to concentrate” with ratings of 5, 6 and 5 respectively.
20. Under Dr. Murphy’s care, the plaintiff underwent a right thoracolumbar medial branch block/pulsed radio frequency ablation on 11th November, 2016, and was subsequently readmitted on 18th November, 2016, for left thoracolumbar radio frequency ablation. The procedure was well tolerated. The plaintiff reported complete resolution of her pain for a period of time following this diagnostic blockade. This confirmed that her symptoms were facet joint mediated. The plaintiff had a further right L2/S1 rhizotomy on 10th February, 2017. In her evidence, the plaintiff stated that these procedures gave her relief for approximately two months. She had had further injections in May 2017 and again on 5th January, 2018.
21. In his opinion and prognosis section, Dr. Murphy noted that the plaintiff had been involved in an RTA on 12th December, 2014. Prior to that injury, she had had a history of chronic facet mediated pain, which had been treated in excess of 20 years previously. She had not required any further interventional therapy in the intervening period. Following this accident, she reported significant bilateral thoracolumbar pain which was classically facetogenic in nature. This was confirmed by appropriate response to diagnostic medial branch radio frequency lesion. Dr. Murphy was of the view that she would require intermittent neuro destructive rhizotomy at appropriate areas on an ongoing basis as required.
22. Finally, there was a report from Dr. Peter Staunton, the plaintiff’s current G.P. in Blackrock, Co. Dublin. His report is dated 7th February, 2017, but this appears to be an error and should probably read 7th February, 2018, as he makes reference therein to her attendances with him in March, April and July 2017, and he also refers to the injection treatment given on 5th January, 2018. Having reviewed the history of the plaintiff’s progress since the accident, he noted that he had seen the plaintiff frequently through 2016 complaining of pain in her neck and shoulders, which were very stiff. She also complained of a grinding sensation when she moved her neck and head. He noted that the injection treatment furnished by Dr. Murphy was most successful, but began to wear off over time. He also noted that she had had multiple physiotherapy treatments. He noted that when reviewed on 5th August, 2016, things were particularly upsetting for the plaintiff as she felt that apart from the pain, the grating sound in her neck was very upsetting. At that time, she found stairs impossible and she had great difficulty doing even a few steps. She was unable to drive any significant distances.
23. In summary, Dr. Staunton noted that the plaintiff had suffered a severe impact at a time of intense psychological distress. She suffered severe injury to her spine and chest with no fractures noted, but there was exacerbation of pre-existing osteoarthritis, particularly in her cervical spine. There had been little or no improvement in her pain despite the various treatments and severe psychological distress was ongoing. She was likely to have ongoing pain and disability for the foreseeable future and her psychological upset would also be ongoing.
24. The plaintiff was seen on behalf of the defendants by Mr. Robert McQuillan, a retired Consultant in Emergency Medicine, on 15th January, 2016, some thirteen months post-accident. He reviewed her history and noted the findings on the MRI scan. At that time, she complained of pain across her low back. This was in the mid-lumbar area. It was constant over the previous three months. Symptoms were mainly aggravated by walking. There was no radiation to the legs. Her symptoms interfered with her sleep and she often had to get up to take Solpadol. She also had intermittent neck pain, with a sensation of crepitus. Symptoms were aggravated by lifting her arms, particularly when driving. She had no pain down her arms. She had difficulty going up and down stairs. Examination of the neck revealed moderate limitation of flexion, extension and rotation and very limited lateral flexion, in keeping with very advanced underlying degeneration. There was slight stiffness on shoulder movement, with minor limitation at extremes. There was no mid-arc pain. The lumbar spine showed forward flexion to the knees. Extension was reduced, but overall was satisfactory for her age. Straight leg raising was associated with discomfort on the left side. There was slightly reduced internal rotation of the right hip.
25. Mr. McQuillan was of the opinion that the plaintiff’s injuries were consistent with the accident. He noted that in the accident she suffered bruising to the chest and left leg, which had settled within a number of weeks. She sustained soft tissue injuries to her neck and back. She had moderate underlying degeneration at both sites. He was of opinion that her current limitation of movement was in keeping with this degeneration. Where symptoms of degeneration had been aggravated by an accident, they tended to settle towards a baseline level within about eighteen months or so. He did not anticipate any specific long term complications.
26. The plaintiff was seen by Mr. Gary C.C. Fenlon, a retired orthopaedic surgeon on 1st July, 2017, or 1st September, 2017, (the date on his report being somewhat confusing). He noted that the plaintiff continued to have soreness on the left side of her neck, which radiated down the left side to the lumbar area. It was aggravated by climbing stairs. She had difficulty doing that when she went to play bridge. She had no difficulty when sitting and was most comfortable sitting in a car seat. However, holding the steering wheel in her hands, caused her to complain of left sided neck discomfort. He noted that on examination, the plaintiff was a vivacious elderly lady who had a good range of neck movement, with no local tenderness or muscle spasm. He could not elicit any neurological deficit in her upper limbs. She had a thoracic-kyphotic curve and there was generalised stiffness of her thoracic and lumbar spine. In particular, she had reduction of extension and lateral flexion to right and left sides. Straight leg raising was limited to 75 degrees bilaterally, but her lower limb reflexes were intact as was sensation.
27. Mr. Fenlon was of opinion that the plaintiff had sustained a significant jolting injury to her neck and back in a relatively severe rear ending incident in December 2014, in which four cars had been involved. He noted that the cost of car repair to her vehicle was €7,500. The plaintiff had returned to doing some legal work. However, she had had to stop work during her husband’s terminal illness for some time. He noted the findings on the MRI scan, which were understandable given her age. He was of opinion that the plaintiff had ongoing symptoms as a result of possibly aggravating this degenerative wear, but he did not get the impression that she was trying to maximise her complaints and indeed, she was happy to get on with her life. He could not state whether the plaintiff’s symptoms would eventually settle or not, but he thought progress would be slow. A curious omission from this report is any reference to the rhizotomy treatment which had been administered by Dr. Murphy to the plaintiff in November 2016, February 2017 and May 2017. It may be that he was unaware of this treatment.
28. Finally, a report was furnished by Dr. Joseph Keaveny, Consultant Pain Specialist, dated 30th January, 2018. When he saw the plaintiff on 23rd January, 2018, she complained of ongoing pain in her neck. Her symptoms were on the left side. She described a pulling sensation across her neck, with ongoing aching discomfort. Associated with this, she described cracking noises when turning her head, particularly towards the right side. She also complained of pain in her lower back. This was mainly across the lower lumbar spine and confined to the back area. She said that her symptoms were worse going up and down stairs, or getting in and out of bed. Her sleep was intermittently disrupted because of pain. She rated her symptoms at 6/10 on a verbal pain scale.
29. Dr. Keaveny noted the findings on the MRI scan and the treatment which was being administered by Dr. Murphy. On examination he noted that the plaintiff had a normal spinal alignment. She had a normal gait. She had approximately 30% reduction in both forward flexion and backward extension. Straight leg raising was slightly reduced bilaterally. However, her reflexes and power were normal. He was of opinion that the plaintiff was suffering chronic neck and back pain, which were slowly improving. She had previously had a history of back pain in 1989, which lasted for about five years, following which the patient subsequently made reasonably good improvement. MRI scans had showed general degenerative changes within the lumbar spine. Many of these would have pre-dated her accident, although they may have been made symptomatic since the accident. He was of opinion that the plaintiff’s symptoms were consistent with her trauma. She was making an improvement and was getting good improvement following rhizotomy procedures. He thought that she may require further procedures to be repeated on three to four occasions over the next twelve – eighteen months. In the long term, as her previous back problems had resolved, he expected that the plaintiff’s symptoms would gradually improve over time. However, she may not get a complete resolution of her symptoms, or return to her pre-accident state, although he suspected that many of the symptoms would improve to allow her a reasonable quality of life.
Conclusions
30. Having listened carefully to the plaintiff giving her evidence, and having regard to the content of the medical reports furnished by both the plaintiff’s doctors and the defendants’ doctors, I am entirely satisfied that the plaintiff has given a fair and accurate account of her injuries since the time of the accident in December 2014. She has not tried to exaggerate her symptoms at all. If anything, she has tended to underplay her symptoms and the difficulties which they caused her at a particularly distressing time in her life, when her husband was terminally ill.
31. I am also satisfied that the plaintiff is at the very opposite end of the spectrum to what may be termed a “malingerer”. In the past, she has dealt with very serious health issues. It is clear that she has faced these with great courage. That she has gone on to live for almost ten years after receiving a terminal diagnosis of cancer, giving her only three weeks to live, is testament to the determination and resilience of this lady.
32. In the plaintiff’s account of the actual accident, she did not try to overstate the matter. Indeed, she stated that at the time, her main concern was for the health of her female passenger, who had become hysterical as a result of the impact. Thereafter, in describing how her injuries affected her in the weeks she had to travel to and from Wexford Hospital to visit her husband, she described her difficulties at that time, which have been set out earlier in this judgment, in a very understated manner. The plaintiff’s assertion that she continues to experience significant and disabling neck and back pain, in the years subsequent to the accident, is supported both by the content of Dr. Staunton’s report and also by the fact that Dr. Walsh thought it appropriate to refer the plaintiff to a pain specialist in September 2016. That pain specialist, having reviewed the plaintiff and her MRI scan, decided that it was appropriate to give the rhizotomy treatment which has been described earlier in the judgment. This is significant treatment which is only given where the doctor is of opinion that the patient is in significant pain, which warrants this intervention. The defendants’ pain specialist is in agreement that this was the appropriate treatment to administer to the plaintiff. He is also of the view that she will require further such rhizotomies on perhaps three to four occasions over the next twelve – eighteen months. Accordingly, there is no great dispute between the pain specialists as to the necessity for further treatment.
33. The pain specialists are also in agreement that the plaintiff’s future prognosis is somewhat guarded. Dr. Murphy is of the view that the plaintiff is likely to have ongoing pain and disability for the foreseeable future. He also thinks that her psychological upset will be ongoing. Dr. Keaveny is of the view that in the long term, he would expect the plaintiff’s symptoms to gradually improve over time. However, she may not get a complete resolution of her symptoms, or return to her pre-accident state, although he thinks that many of the symptoms will improve to allow her a reasonable quality of life. Insofar as there may be an issue between the content of Mr. McQuillan’s report and the plaintiff’s reports, due to the fact that Mr. McQuillan is of the view that the plaintiff’s current level of pain and disability is in all probability due to the degeneration in her spine shown on the MRI scan, I prefer the opinion given by the treating consultant, Dr. Murphy, that the fact that she had resolution of her pain for a period of time following the diagnostic blockade treatment, confirmed that her symptoms were facet joint mediated. I accept his opinion that the significant bilateral thoracolumbar pain reported by the plaintiff was classically facetogenic in nature. This was confirmed by appropriate response to diagnostic medial branch radio frequency lesion. Even if I am wrong in that, I accept the plaintiff’s evidence that she was “perfectly fine” prior to the RTA in December 2014. This supports the conclusion of Dr. Staunton and Mr. Fenlon that the accident caused exacerbation of the underlying degenerative changes in the plaintiff’s spine, which had been asymptomatic for many years prior to the accident. Finally, I accept the plaintiff’s evidence that she remains significantly disabled in the ordinary aspects of her life. In particular, her ability to drive long distances has been reduced and of more importance, her ability to ascend stairs has been greatly compromised. I accept her evidence that this disability came against her when visiting her great grandson in New York. In terms of the future, the plaintiff will require further rhizotomy treatments over the next few years. Even then as already stated, it is the opinion of Dr. Murphy and Dr. Keaveny that the plaintiff may not get a complete resolution of her symptoms.
34. In reaching an assessment of the appropriate level of general damages in this case, the court has been greatly assisted by the guidelines set down by the Court of Appeal in Nolan v. Wirenski [2016] IECA 56, and Shannon v. O’Sullivan [2016] IECA 93 and in particular to the criteria set down by Irvine J. at paras. 43 and 44 thereof. The court has also had regard to the dicta of the Court of Appeal in the case of Fogarty v. Cox [2017] IECA 309. In the light of these judgments, this Court has had to somewhat recalibrate its approach to the assessment of general damages in personal injury cases.
35. On the basis of the findings of fact made earlier in this judgment and having regard to the principles set down by the Court of Appeal in the case as cited above, I award the plaintiff general damages for pain and suffering to date of €55,000 together with general damages for future pain and suffering of €20,000. To this must be added the agreed sum for special damages of €19,757.20, giving an overall award in favour of the plaintiff in the sum of €94,757.72.
Denise Rowley v Budget Travel Limited (In Liquidation)
2014 699
Court of Appeal
4 June 2019
unreported
[2019] IECA 165
Mr. Justice McGovern
June 04, 2019
JUDGMENT
1. This is an appeal against an order and judgment of Kearns P. delivered ex tempore on the 15th November, 2012. In the proceedings, the appellant claims damages for personal injury loss and damage as a result of an accident that occurred whilst she was on holiday in Gran Canaria on the 18th May, 2008. As the appellant and her sister were preparing to depart for the airport at the end of their holiday, the appellant fell when descending a ramp at her hotel. In attempting to break her fall, she stretched out her hands and suffered an injury to her right wrist. At the same time, she also complained that her back was tender although this is not referred to in the medical reports and only gets a brief mention in the evidence.
2. Although liability was in issue in the pleadings, when the matter came on for hearing liability was withdrawn and the matter proceeded as an assessment of damages. At the trial in the High Court the only witness was the plaintiff. Two medical reports from Mr. Andrew C. Macey, a consultant orthopaedic surgeon, were admitted in evidence. The transcript of the trial (including the ex tempore judgment) runs to just barely over 10 pages which, perhaps, gives some indication that the issues were quite straightforward.
3. Having heard the evidence of the appellant and considered the two medical reports, Kearns P. awarded €20,000 for pain and suffering to date and €5,000 for pain and suffering into the future, and agreed special damages of €1,060 making in all a total of €26,060. This Court has been informed that on the 10th November, 2011 the respondent tendered the sum of €36,050 by way of compensation for the plaintiff’s loss and damage. As the appellant failed to beat the tender, the President directed that she was entitled to her costs up to the date of tender. The perfected order does not make clear whether the costs awarded were on the Circuit Court scale or the High Court scale. Neither does the order show whether the respondent recovered costs from the date of the tender or whether there was any differential costs order made.
4. The appeal is against quantum and, in particular, is brought on the basis that the sum of €20,000 awarded for pain and suffering to date and the sum of €5,000 for pain and suffering into the future was inadequate and against the weight of the evidence and that each of those payments was disproportionately low having regard to all of the evidence.
Applicable legal principles
5. There is a large measure of agreement between the parties to this appeal as to the legal principles that apply to this Court’s role in reviewing the level of damages assessed by a judge in the High Court. In Reddy v. Bates [1983] I.R. 141, the Supreme Court held that:-
“In order to warrant interference with an award of general damages, the disparity between the views of the individual members of this Court and each item of the award, however large it may be expressed in isolation, must be a significant percentage of that item of the award and, as a general rule should not be less than 25 per cent…” per McCarthy J. at p. 151.
6. While on its face this might appear a rather crude method of dealing with the issue, it is helpful to the extent that it gives a general view as to what level of disparity might properly begin to attract the attention of an appellate court. In Rossiter v. Dun Laoghaire Rathdown County Council [2001] 3 I.R. 578, Fennelly J. stated at p. 583:-
“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”…”
7. In Nolan v. Wirenski [2016] 1 I.R. 461 at 471, Irvine J. in the Court of Appeal stated:-
“Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in the 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.”
8. In Shannon v. O’Sullivan [2016] IECA 93, Irvine J. set out in the judgment of the Court some guidelines that might be of assistance in assessing the severity of any given injury and the appropriate sum to be awarded in respect of general damages. Among the criteria which she mentions are 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?
…
(vi) While recovering in their home, was the plaintiff capable of independent living?
…
(ix) For how long was the plaintiff out of work?
…
(xi) Finally, what was the nature and extent of any treatment, therapy or medication required?”
9. Section 22 of the Civil Liability and Courts Act 2004 requires the judge hearing the case to have regard to the book of quantum. In respect of wrist fractures the relevant passage is as follows:-
“FRACTURE
The wrist contains many bones, radius, ulna and eight carpal bones, all of which make up the wrist joint. In view of this complexity and variety it was difficult to provide very specific ranges for each “wrist fracture”. Fractures that involve a joint are usually considered more complicated than others due to the increased impact on movement.
MINOR €19,300 to €36,800
Simple non/displaced fracture to any of the bones of the wrist which have substantially recovered:
In respect of soft tissue injuries such as wrist sprains the figure for a minor injury is up to €27,800.”
10. The figures in the book of quantum are not broken down into general damages for pain and suffering to date and into the future but are global figures.
Discussion
11. The task of this Court is to look at the evidence before the President and see where the appellant’s injury fits into the legal scenario outlined above.
12. The appellant was born on the 20th May, 1984. She was twenty-four years old at the date of the accident and is now aged thirty-five. She sustained an un-displaced fracture of the distal right radius at the very tip of the ulna styloid. She was treated in a hospital in Gran Canaria but was not detained and was able to board her flight home. Her wrist was put in a cast and this remained for a period of six weeks. She then had some physiotherapy. She was not admitted to hospital as an in-patient on her return nor did she require any surgery for her injury. In a medical report dated the 27th July, 2010 Mr. Macey stated that up-to-date x-ray showed an anatomical healing of the fracture including the ulna styloid and the joint appeared normal. When carrying out some pushing exercises against a door, a ganglion appeared. He said in his report “This is a secondary issue rather than the primary cause and given its size today I would not feel any intervention to this specifically is warranted”. It is unclear from this remark whether the ganglion was caused by the fracture or just appeared spontaneously. There was some diminution in her grip strength in the right hand which was her dominant hand.
13. In a second report of the 5th July, 2012, Mr. Macey described how the appellant remained aware of some difficulties, for example, in lifting a kettle and she felt her wrist tired easily with some numbness and tingling. She worked as a dental nurse and receptionist and found her wrist got tired in the course of her job. Her grip strength and pinch grip was lower on the right side than on the left notwithstanding the fact that she is right-handed. At that time the ganglion had enlarged and Mr. Macey felt it might warrant intervention. The appellant declined the offer of intervention as she did not want to have a scar on her wrist or hand. In his second report, Mr. Macey felt that her fracture had healed satisfactorily but she had some ongoing symptoms and loss of function particularly with her grip strength and, he felt that she did have a “clunk” on the scaphoid shift test indicating that the joint was not functioning in a truly congruent fashion. He felt that her current situation was permanent and the incongruity to which he referred carried with it a small risk of post-traumatic arthritis in the future.
14. Although the plaintiff made a claim in respect of a back injury, it was not referred to in the medical reports. At p. 3 of the transcript she stated that her back was tender after the fall but because her wrist was sore she concentrated on that aspect of her injury. At p. 8 of the transcript she was asked at Q. 48 whether her back gave her any trouble and her response was “from time to time”.
15. There is no record of a complaint with regard to her back in either of the medical reports from the consultant orthopaedic surgeon. The President did refer to it briefly by saying “[a]nd she had some initial back pain following the accident but that again seemed to have cleared up”. It is clear that the back pain was not a matter of significance in this case.
16. So far as the wrist injury is concerned, it does not appear to have been very significant and it would seem to fit within the definition of a minor wrist injury as described in the book of quantum above. In my view the award of €20,000 damages for pain and suffering to date, while low, was not disproportionally low having regard to the fact that the fracture was un-displaced, she was not detained in hospital and did not require surgery. Indeed, in the first of his two medical reports the orthopaedic surgeon seemed to be of the view that the x-rays showed that the fracture had largely healed without any problems.
17. Having said that, the second of the two medical reports does establish a situation which involves on-going discomfort with a certain amount of impaired function in the wrist which will be permanent. She also has been left with ongoing diminution in her grip strength. There is a small risk of post-traumatic arthritis.
18. Kearns P. was a very experienced judge in the area of personal injury litigation. It is important to remember that the plaintiff was the only witness who gave evidence and the President had an opportunity to assess her evidence. An appellate court is always at something of a disadvantage in that regard.
19. However, bearing in mind that note of caution it seems to me that the President was in error in only awarding €5,000 damages for pain and suffering into the future.
Conclusion
20. Applying the legal principles outlined earlier in this judgment to the award made by the President, I am satisfied that the sum awarded for pain and suffering into the future was disproportionately low and that this Court is entitled to substitute its own figure. Taking into account the appellant’s age and the fact that she will have on-going symptoms (albeit of a low grade nature) it seems to me that the appropriate figure for pain and suffering into the future is €15,000. Adding that to the figure of €20,000 for pain and suffering to date one arrives at a figure of €35,000 for general damages. That figure approximates to the higher end of the scale in the book of quantum for a minor wrist injury involving a non-displaced fracture and the lower end of this scale for a moderate injury to the wrist. The medical evidence is that her fracture healed satisfactorily and that there is “…a minimal risk of adverse sequelae in the future”. By adding the agreed figure for her special damages of €1,060 the adjusted figure for general and special damages should be €36,060. I would therefore allow the appeal and vary the damages to that extent.
Cahill v Glenpatrick Spring Water Company Ltd.
JUDGMENT of Ms. Justice Bronagh O’Hanlon delivered on the 19th day of June, 2018
1. The plaintiff confirmed his date of birth as 2nd May, 1973 and that he is a father of four boys aged 22, 20, 18 and 16 years. He described his employment history, having left school at seventeen years, as mostly being based in the manufacturing sector and factory type work.
2. The plaintiff gave evidence of having had a previous accident at work in a previous employment in or about 2008 in a dump truck seat, which failed because there was a temporary weld on the seat as a result of which the plaintiff suffered a back injury. The plaintiff didn’t have ongoing difficulties in that area of his body as a result of that accident. He described himself as interested in sport, hunting, fishing, football and hurling.
3. The plaintiff began his work with the defendant company initially as a seasonal contract worker. He began that work in May, 2010, originally with 5pm-10pm shifts. At that time the plaintiff explained that he was undertaking a course to train as a nurse’s aide/care worker in the hope of obtaining work with the Heath Service Executive.
4. The plaintiff described his main job as manning the Sidel 2 machine within the tabard area where “preform” plastic bottles were blown into full size bottles. The plaintiff gave evidence that at 10pm at night his duties changed and he would then work when the night shift took over, in the palleting area. His work hours were extended after a period of time to 1:30am.
5. The plaintiff gave evidence that the accident occurred on 15th September, 2010 at 9:30pm. The problem developed in the timing in his own machine and, as he was trained to do, the plaintiff attempted to reset the timing but was unsuccessful. The plaintiff then went to Pioter Czernejwski who was standing on the frame of Sidel 3 and was removing a blockage of preforms in the top of the machine by hand. He gave evidence that he was invited to change places with this gentleman who asked him to finish up what he, Mr. Czernejwski, was doing while he went to investigate the problem with the plaintiff’s machine. The plaintiff’s evidence was that he climbed onto the frame of the machine, stood on the uppermost bar while clearing the blockage by hand but that while he was throwing an armful of preforms back into the hopper at the foot of the conveyor, he lost his balance and fell backwards. The plaintiff describes striking his head off something as he fell and that he hit the ground landing on his coccyx and elbows. He then met and had a discussion with Anthony Dignam who was the nightshift supervisor and who chided him for being up there. The plaintiff then said his own machine was not working. It was close to changeover time so he went to work in the palleting area but that he wasn’t able to do the work of lifting wrapped bottles due to pain and, having indicated to the evening shift supervisor Mattie O’Brien that he was injured and would have to go home, he left the plant.
6. The plaintiff gave clear evidence that when he got as far as the nearby carpark in Tesco he was obliged to telephone his wife and get her to collect him because he could not drive his motor vehicle. The following day he explained to Tom Weste, who was the day shift manager, what had occurred and the plaintiff says that he furnished medical certificates for a number of weeks before he received a P45 from the defendant in the post.
7. The plaintiff was treated by Dr. John Carey, his general practitioner, with anti-inflammatory and pain killers and given a sick note for work for one week with a diagnosis of probable soft tissue damage. He was sent for various x-rays and then he got a referral to an Orthopaedic Consultant in Ardkeen Hospital. He saw Dr. Chhabra but also Professor Molloy in Cork and he went privately regarding his neck and back. Professor Molloy gave him a set of exercises for his neck and back. The plaintiff gave evidence that these exercises are very painful but that he does them very regularly and that he also does light gym work and walks. However, he avoids uneven ground. He felt that he was left with a weak left leg and has had falls. He is on two different nerve suppressants. The plaintiff described how hard it was for him to sit for too long or to stand for too long and how he has to take pressure off his back. He described it as like being winded between the shoulder blades with pain down the right arm to above the pelvis and he said that his lower back was causing him greater difficulty at the moment with spasms every couple of weeks and that he was getting a lot of sciatica.
8. The plaintiff described how he missed three weeks of his FETAC course which would have allowed him to work in a hospital setting as a nurse’s aide or carers assistant and that it was a quite intense eleven-month level 5 course. He couldn’t continue with that because physically he couldn’t put himself forward, he couldn’t drive a car and he felt that his legs were going to explode. The plaintiff described himself on social welfare disability allowance ever since the accident and says that he has rarely been able to drive since then. If he goes for a walk he has to be picked up and if he stays too long on his feet, he gets very stiff. The plaintiff indicated that he hadn’t cleared blockages on machine no. 3 before the accident but that he had seen it done. The plaintiff felt that prior to this he had been a very active sociable person and very family orientated but that now he tends to be isolated from his own family and has suffered depression difficulties and is now on an antidepressant. The plaintiff described himself as a person who doesn’t like to show weakness and he found it very hard to admit that he was depressed.
9. The plaintiff described considerable pain in 2012, with particular irritability, agitation and moodiness. He said that he had separated from his wife in 2012 but feels the loss even though he has contact with his children. He is now in shared accommodation within walking distance of his own home. The plaintiff accepted when cross-examined that he had been assigned to Mr. Bates who had trained him in use of the Sidel 2 machine and that he had worked with him for an eight-week period. He agreed that Mr. Bates had shown him how to reset the timing on the Sidel. The procedure was that he would climb up on the hopper and Mr. Bates would show him how to free it and that if he couldn’t free up the machine Mr. Bates would climb up on it. The plaintiff also agreed that his colleague at Sidel 3 sent him up on his machine and that that is when he fell.
10. The plaintiff described how he tried to work for Sky Television cold-calling but he said that for the hours he needed to put in, there was no financial gain. The plaintiff then gave evidence that he tried to work for Homestead who were looking for workers. He found that work just too uncomfortable to do, mostly concerning discomfort in the neck and back.
11. Under cross-examination the plaintiff described himself as having good days but bad weeks and that he was quite uncomfortable 99% of the time.
12. The plaintiff was cross-examined in detail about a number of social activities from photographs of holidays and socialising with his family and friends. He was asked about his cutting up blocks and loading them onto a trailer with other family members which he freely admitted doing and he indicated that he was able to do this physical activity within reason until his back or neck would no longer allow him to do it. The plaintiff indicated that he can use a chainsaw but only for a limited period of time. He denied that he sawed, split and loaded the wood all in one day and indicated that the wood would have been sawn prior to that by either himself or his son. Some of the specific contents of Dr. Gleesons’s report were put to this witness but the plaintiff did not accept that there was nothing wrong with him as asserted by Dr. Gleeson. The plaintiff freely admitted that he helped his sons with the timber and he said that it was not a case that he ever said that he is an invalid 100% of the time. He did not accept the contention that his claim was fabricated.
13. On re-examination the plaintiff clarified that he did not have back pain at the point at which he ceased to work for Roadbridge and that at the time of the accident in Glenpatrick he was quite fit but slightly overweight. He used to play AstroTurf soccer as well as indoor soccer. The plaintiff agreed that he had lost three stone in weight in seven weeks prior to the accident and that it is referred to in Dr. Carey’s notes dated July, 2010. The plaintiff indicated that he was treated for bacteria in the intestine and he said when he stopped working in Glenpatrick he started putting on the weight and he agreed with the clarification that Dr. Maria Kelly recorded on 23rd July, 2010 that his weight has stabilised in the previous week.
14. Mr. Thomas Weste gave evidence on behalf of the plaintiff. He described himself as a day shift supervisor taking responsibility for the regulation of production within the plant. He had worked there for eighteen years and had interviewed the plaintiff in respect of the job concerned. This witness indicated that he had no role in induction or training and he confirmed that the day after the accident the plaintiff indicated to him by telephone that he had had a fall and that he expected to be back at work within a matter of days. He reckoned that the plaintiff was off work for about four nights. The following Monday the plaintiff telephoned to confirm that he would be coming to work with a sick certificate. This witness indicated that he was made redundant a couple of weeks after that, after 18 years’ employment.
15. Thomas Sheehan gave evidence for the plaintiff and said he worked in the plant until 2014 where he had begun as an operator and gone on to become a product manager over a 25-year period with the firm. He had worked sixteen years as production manager. He described the stages in the process, stage 1 buying in the preform items, stage 2 involved heating them in order to turn each one into a bottle. He said he himself had never actually worked with the plaintiff and he agreed that he had his own difficulties with the company and he agreed that at that time while he took redundancy there had been an attempt on the part of his then employer to dismiss him and that he has a case against the company. He confirmed that he never worked on the plaintiff’s shift nor does he know him. He explained that if there wasn’t a major blockage he would use a stick to clear the fault on the machines and he confirmed that he had worked on the machines for sixteen years and had climbed them to do maintenance.
16. Mr. O’Reilly, Consultant Engineer, gave evidence that he attended the premises on 28th May, 2013 and that the plaintiff brought him to Sidel 3 where they were making the plastic bottles. He took the court through the photographs taken and made reference to the fact that, in his opinion, ten feet above floor level, it was not a safe place to work. If a person were climbing the structural bars, one would climb to the fourth bar, which would be 81 inches high, and one would then need a safe means of access to a platform or tow board and ladder. He said there was an obligation to have a safe means of access to and egress from the place of work and that s. 15 of the Health & Safety at Work Act 2005 came into play.
17. He referred to the risk assessment hazard and an ID sheet as a precursor for the preparation of a safety statement. This classified the risk level as medium on the subject machine. He said that hands were used with the moving machine and that there is a risk of entrapment with manual removal of a blockage. He said that was the position with regard to Sidels 1 and 2 and he believed that it also referred to Sidel 3 and he said that he would identify this is a hazard i.e. the manner in how a blockage is removed. He said there is no means of climbing up, that it is unacceptable and clumsy to try and clear blockages in the manner used. He said there was no reference to climbing machines and that this part must be accessed on a frequent basis and there should be a platform ladder. He confirmed under cross-examination that if he were required to climb in the manner described by the plaintiff that that would be an unsafe system.
Evidence of Marie Cahill, wife of the plaintiff
18. Mrs. Cahill gave evidence that she was married in 1995 and confirmed that she had separated since the accident but that the parties had brought up four children and that all but one are now adults. She described how her husband telephoned her to say that he had had a fall at work and that he was coming home. Five to ten minutes later he asked her to collect him from Tesco. She got her sister to come with her to Tesco to pick him up. This witness said that he telephoned Tom Weste and that she drove him into the factory to explain what had happened and that she brought in medical certificates three or four times and that she got these certificates week by week from Dr. John Carey and handed them into reception.
19. She described the husband as having mood swings the entire time since the accident. They separated two years post-accident. He had been taking out his bad moods on the boys, was snappy and that he had moved out, but that most days he would pop down and that they still talk. The witness confirmed that her husband had had an accident while working with Roadbridge and that he was in pain for a few weeks after that accident but that it was not severe. The witness was cross-examined to the effect that her husband was claiming to have complete disability. She was shown photographs of him lying on the floor and the defence put to her that he seemed to be in the whole of his health while he was saying that he couldn’t ever work after this event. The witness said her husband was not in a new relationship that she was aware of, that he had gone on a family outing to Wales and that he had wanted to make it a day out and that she didn’t see him cutting logs. She was aware that he had lost 70 pounds in weight prior to the accident.
20. Dr. George Karr, Consultant Neurosurgeon, gave evidence of his qualifications to the Court. He said that he had seen the plaintiff on 15th February, 2018 and found him to have stenosis or degenerative change of the joints from being flexible to less movement. He referred to nerve study conduction tests carried out and he said that the symptoms can cover pain, pins and needles and burning sensations. He found that this patient had chronic long term changes going on for at least six months, L2 to S2 changes and L2 to L4 on the left side. He said that these were indicative of compression of the nerve root and can be degenerative or be due to a trauma where there is stretching or irritation of the nerve root. He said that is present in the MRI scan and that he thinks a fall from seven foot high is likely to give rise to a sign of stress to the neck and lower back. He said the plaintiff has pain in the shoulder blades. His diagnosis is of degenerative changes in the lower cervical spine and lumbar spine and he said there was a loss of sensation with trauma to the lumbar spine. He said that in December, 2015 in terms of prognosis, the pain remained severe at that stage and he felt surgery would aggravate matters. He said the plaintiff was due to be seen by a pain specialist and was to exercise as much as possible. The symptoms would continue for one to two years.
21. This witness indicated that it is now five years since the accident and said that non-impact exercise was recommended with no excessive twisting. He said that there is a 5% risk of serious change and he envisaged a further one to two years towards recovery. He said when one is five years post accident that after two to three years it is very rare to become completely pain free. He feels that the plaintiff’s back pain is worse and that he has a dead pain in his right leg as if cold water was running down the right leg and going into the right arm and hand.
22. The plaintiff is on antidepressants which he gets from his GP and he said that in some cases this becomes an overriding problem where there is an unresolved upset and there can be psychological disturbance which can lead to severe mental distress. He found this plaintiff’s neck movement restricted and shaky and that the pain went through the right shoulder and right elbow and to the rest of the lower back. He said he felt that the second MRI was unchanged and that the diagnosis was the same as previously. In terms of symptoms and clinical findings he said these are much the same as before and that over time the plaintiff became more upset regarding his case.
23. The prognosis seven years following this accident is that the plaintiff is in constant pain and discomfort and it is unlikely that one would see significant improvement.
24. This witness said that it was unlikely that the plaintiff would be unable to do physical work or exercise. He can do non-impact exercise. He said that there was a physical and psychological basis to the problem and that basic exercise was all right but that he did not see him returning to his previous activities.
25. In relation to the fact that the plaintiff was chopping firewood, this witness indicated that every time he saw the plaintiff he encouraged him to exercise and to do activities i.e. short burst activities.
26. Under cross-examination this witness said that at the early stage there was no bone injury but that the scans in 2015 showed that degeneration could be found and that there is no clinical evidence of nerve malfunction. He said he relied on x-rays and the scans of the spine as well as neurological symptoms. This witness strongly said that he relied on both x-rays and scans but also on his physical examination and that in 2015 he found a restriction of movement of the neck and back with obvious pain and he found a restriction in movement in both legs.
27. This witness was asked about a previous accident where the plaintiff suffered in 2008 an injury from a dumper truck and he told Dr. Kaar that he had fully recovered within six months of the accident and it was remarked that three and half years after the full recovery the plaintiff issued High Court proceedings regarding that claim. This witness, asked that about Dr. Gleeson’s findings, said that in 2015 the plaintiff’s movements were a little better than they are now. He said that Dr. Gleeson appeared to have missed the whole upset and psychological aspect of the case and, while she concluded that the plaintiff was in some way exaggerating, she was looking at him physically, not holistically and that while the plaintiff is capable of moving and doing things with his symptoms, he doesn’t believe it is false. The plaintiff has developed progressive symptoms since the accident. He said the plaintiff’s difficulty begins with physical problems which then becomes pain plus psychological upset with difficulties of self-perception where it can be very difficult to return to previous activities. This witness was shown photographs of 16th July, 2014, showing the plaintiff on the ground. He said it is very difficult to comment on a brief snapshot in time and its interpretation is really a matter for Mr. Cahill.
28. This witness was asked about Mr. Cahill being on a fairground ride where the instructions said that if you have a bad back you should not use this equipment. This witness answered that the plaintiff is sitting down in the photograph and that he felt the force of such rides would be carefully calculated. Photograph 2 shows a vertical ride and it was put to this witness that there was no attempt to protect his back and he said the plaintiff does not seem to be supporting himself with his arms in the photograph and that it is difficult to know how often he did this or for how long he was engaged in the activity.
29. He was asked about the plaintiff chain sawing, splitting wood and glowing wood and he said that when he reviewed the plaintiff, he tried to encourage him to do things, although not on his own.
30. This witness said that he believed that the plaintiff undertook Homestead care work since the accident and he said on the evidence of one occasion of leg activity that it was very poor evidence and he could not comment. He said it would be different if he carried out a complete trailer full of material with an axe. He said it would not be consistent if he was on his own rather than with his sons as was the case here.
Evidence of Susan Tolan, Occupational Therapist
31. This witness saw the plaintiff on the 11th July, 2016. He set out his complaints and his full work history. He was in the course of undertaking health care assistance training and there were jobs in that area. He also tried telephone sales which was not competitive for employment and she felt that there were significant barriers to employment for this patient. She described his physical complaints, his loss of confidence, his isolation, his injuries, the fact that he was depressed and described this as a vicious circle. For any employer he would have to update his skills and any employer would have a duty of care regarding manual work and would not be a suitable occupation for him. She stated categorically that he was not employable at the moment.
32. This witness also stated clearly that if a person is depressed it is very difficult to get that person to cope with vocational rehabilitation. With disability one can earn €120.00 maximum per week. One could work part-time but the plaintiff does not have a skill at present and is now on anti-depressants.
33. It was put to this witness that the plaintiff had been involved in using a chainsaw. Her response to this was that one must look at the purpose of the activity. It was more important that occupational deprivation leads to social isolation and it might well have been necessary for his physiological wellbeing that he would do something with his family. This witness said we must view the chainsaw in a wider perspective.
34. With regard to photographs where a lady is seen falling over the plaintiff in an accidental way, her response was that it might well have caused him severe pain. This witness also felt that even though he was working with a trailer, it did not mean that he could sustain that type of activity over a period of time. Regarding his history, her observation and his medical reports, this witness concluded that the plaintiff is not a candidate for employment. The plaintiff would not have had enough stamps to give him an invalidity pension. He was refused disability and got it on appeal and therefore this witness argued that he was by definition unfit to work.
35. In 2017 in terms of the certificate of recoverable benefits the plaintiff indicated to this witness that he was getting disability allowance at the time she saw him.
Evidence of Dr. Gleeson, witness for the defence
36. Dr. Gleeson, Specialist in Occupational Health, described her qualifications both as a general practitioner and as a member and fellow of the Royal College of Occupational Health Specialists. This witness looked at fitness for work in terms of safety, capacity and tolerance. She claimed to use the holistic method and said the plaintiff was sent to her for a medico-legal examination in 2015. She said that he sat in front of her for 45 to 60 minutes with no difficulty. This witness claimed that he was inconsistent and that he could dress himself with no difficulty and that he either had Munchausen’s Syndrome or that he exaggerated or had a psychological difficulty. She said that there were no clinical signs and that all his joints had the full and normal range of movement and that his difficulties are non-organic or psychosocial. She referred to “black flags” which would indicate a lack of happiness at work or that there was litigation pending.
37. This witness said that he had chronic pain syndrome with “black flags” and felt that he was part of the compensation culture. She said that there were no signs that any allegation of chronic pain was work related and she felt it was more psychological/social. She did not find him depressed and deemed him fit to work. This witness said that the plaintiff needed rehabilitation but that there is no reason to get back to work and his previous injury would not preclude him from work.
38. This witness said that he had a full normal range of movement and that a forklift vibration would be nothing like the vibration on a fairground machine for example.
39. She was shown where the plaintiff was crouching. She said he was able to hold that position without any distress and that he was functional and she deemed him to be fit to work and felt that there was deliberate exaggeration or a psychosomatic aspect and that with a period of rehabilitation of four to six weeks he should be back to work.
40. Under cross-examination she agreed that she would defer to the opinion of a neurosurgeon regarding the spinal issues and to an orthopaedic surgeon. She agreed that she did not have the MRI test to hand when she examined the plaintiff and she did agree in conclusion that it would be worth an orthopaedic and surgical opinion. She did not have the nerve studies conduction reports at that stage and she said she did not wait on the results to do the report. This witness argued regarding the back pain revolution referred to in a lot of UK studies that the MRI can have a negative effect on opinion. She says we all have a certain amount of degenerative difficulty that does not need surgery and that MRI’s are not routinely indicated.
41. This witness indicated that she saw the plaintiff five years post-accident, that his clinical examination was normal, that his reflexes were normal and his function was normal. She felt that the MRI and testing was for legal purposes and she said that it was good that he was referred to the pain clinic and that is part of excluding a red flag scenario.
42. This witness indicated that a lot of English studies show that there is no clinical evidence of neurological lesion and that a person can still be fit for work and despite having an abnormal ENG study, she deemed the plaintiff fit for work. This witness claims that the ENG is not relevant to her assessment even though the neurological experts say they are in this case. This witness holds that scans are for exclusion studies and that even if one is treating patients with chronic neuropathy he should still go back to work if he can sit and move normally, he can do so. She found that he had a glove and stocking distribution of nervation and that this was not consistent with nerve lesion and jelly legs include faintness and that pins and needles signal cervical radiculopathy.
Evidence of Dr. Seamus MacSuibhne Consultant Psychiatrist of St. Luke’s Hospital Kilkenny.
43. This witness described the plaintiff as having a depressive disorder consequential to physical disorder. He described the plaintiff as suffering from low mood, loss of hope, and as showing some suicidal ideation which was quite severe and that this patient perceived a loss in many domains.
44. The plaintiff indicated to this psychiatrist that he had had a shotgun in his mouth at one stage. The consultant psychiatrist distinguished his condition as that of Post-Traumatic Stress Disorder. He described the plaintiff as having dreams every few weeks in the nature of Post-Traumatic Stress Disorder but he said it was more depression itself which was the problem for the plaintiff. He described the plaintiff as having a profound loss of his sense of self.
45. This witness described the plaintiff as suffering an impact on his masculinity and on his sense of purpose and said that there had been an impact on his family life which included the breakup of family life and the loss of relationship with his sons. Prior to the accident, while the plaintiff had a previous accident, he did not have any traumatic experience as a result.
46. This witness described the plaintiff as being depressed in mood and that he does hope more things can be done in the future for him and that he is on anti-depressants at the moment. He described the plaintiff’s condition as less than one would hope for, suboptimal in his view. This witness advised a change in the medication and advised that the plaintiff be given this at night because it would help his sleep problems. He described the plaintiff as having had a number of losses and said that he needs clinical assessment with a psychologist and CBT.
47. This witness indicated that there are positive signs, however, in that the plaintiff had a determination to get better and he described the effect of this accident as having had multiple effects on the plaintiff.
48. The first interview with the plaintiff occurred on 2nd March, 2018 and the second interview ten days prior to the case being heard. This witness agreed that he was aware that the case was listed at the time of the second interview. He confirmed under cross-examination that the plaintiff does not suffer from Post-Traumatic Stress Disorder and has rather a depressive disorder and he based this clinical judgement on the presenting symptoms at the time. This witness described the prognosis as guarded and that the psychiatrist cannot give a terminal diagnosis.
49. Under cross-examination it was put to this witness that Dr. Gleeson gave evidence that the plaintiff is capable of going back to work. This witness disagreed with that, but did add that he could get back to a position of functioning where he would then be able to go to work. The psychiatrist then added that the plaintiff has depression in the context of psychical symptoms and he described it as an after effect of his injuries and that in his clinical judgement depression is the condition he has. He described making that clinical diagnosis in the context of his own medical reports and the reports the plaintiff had. He said that this witness added that it was a free standing depression and that it was independent of pain, but he agreed that he had chronic and daily pain.
50. Regarding a photograph, shown to the psychiatrist, he was asked whether this photograph was consistent with pain or loss of daily function. He said that it was consistent and didn’t mean that someone never laughs, nor did he feel that the other photographs were inconsistent with the plaintiff having depression and he said that he wasn’t in court himself as a pain specialist.
51. This witness was shown a photograph which showed a stationary roller coaster and he felt that it wasn’t the plaintiff in that picture that had his hands in the air but he said it wasn’t inconsistent with what he knew of the plaintiff.
52. A photograph was put to this witness which showed the plaintiff using an axe/chainsaw chopping wood and again he said this was not inconsistent with a person having a depressive disorder. This witness added that the occupational therapist looks at activity in the broad sense and he said with regard to the photographs showing activities such as that of a chainsaw these are snapshots as opposed to a clinical examination. He hoped that with anti-depressants and psychology that the moderate depression which the plaintiff suffers from would alleviate within a year, but that he cannot work at present and he would hope that after one year the depression would be better and that he could work.
53. The parties agree that the Court could consider the actuarial report provided on behalf of the plaintiff as a guide. No evidence was called in relation to this aspect of the case but it was pointed out on behalf of the plaintiff that he was seven years out of work and that there were loss of earnings figures that he had hoped by February 2012 to work as a nurses’ aide but wasn’t able to complete that training. The report from the actuary was described as not being part of the claim as such. It was stated that while figures were given, the Court was not bound to follow it.
54. Reference was made to Billy Nolan v. O’Neill [2012] IEHC 151. The plaintiff was described as having a disability as a result of the accident he is not fit to do what he would otherwise have done had he not had the accident. His plan A was to work as a health care assistant.
The defendant’s case – evidence of Declan Clarke, Private Investigator
55. This witness indicated that he observed the plaintiff for the purposes of this case and that he was compliant with the Data Protection Act. He indicated that on 5th August, 2015 he saw the plaintiff receive timber delivered in the form of two bags taken off a lorry.
56. He made a reference to day 2 six weeks later when he observed the plaintiff between 10am and 12:30pm using a cutting chainsaw behind a ditch. This witness described himself as passing by the plaintiff every ten minutes. He said there were two men working together on that date.
57. With reference to his observations on Monday 21st September, 2015, he did not see the plaintiff but there was a trailer full of blocks parked at the plaintiff’s home. On 22nd September, 2015 and 24th September and 29th September between 3 and 5pm there was no sign of the plaintiff. On 30th September, the plaintiff was observed by this witness between noon and 1:35pm and he described the trailer on that occasion as blocking his view.
58. With reference to a photograph, he said the plaintiff showed no sign of disability under observation by him on 30th September, 2015. On 1st October, 2015 between 1pm and 3:30pm, the plaintiff was the only person present splitting logs and he was using a big axe i.e. a full sized axe. The plaintiff was continuing this activity and was still there when this witness left.
59. On Friday 2nd October between 1 and 4pm the plaintiff drove the trailer to his house and had the axe up over his head and was bending down throwing logs. He was working fast and was twisting and throwing and carried out a variety of different tasks and there was no sign of restriction on that date between the hours of 1pm and 4pm.
60. This witness confirmed that the plaintiff was still working with the logs when this witness left the scene and that he was quite surprised to see the plaintiff walking showing a restriction of movement.
61. He referred the plaintiff’s open forum on facebook which showed him at a theme park called Oakwood where patrons are advised not to ride with a back or neck injury or ailment or pre-existing condition. Photograph 11 showed the plaintiff on a circular pole which shoots into the air and drops back to the ground and he said it and a rollercoaster where the two most severe rides.
62. Under cross-examination this witness confirmed that he was not watching continuously but was driving up and down the road passing the plaintiff every ten minutes. He confirmed that the longest period of observation every ten minutes would have been between seven and eight seconds in terms of his view because he felt he couldn’t stop the car.
63. This witness confirmed that the plaintiff was only on his own during one of the days on which he was observed. For example, on 17th September, 2015 the plaintiff was cutting but there were other people present and thirteen days later when the plaintiff was cutting with a chainsaw there was a second person present. One day after that he found the plaintiff on his own splitting logs. He confirmed that there was no activity on the part of the plaintiff on 21st, 22nd, 28th or 29th September, 2015 and he said that over two days other people were doing similar work but the plaintiff was not there.
64. With reference to 2nd October, 2015 he confirmed that others were working that day, not the plaintiff.
Evidence of Anthony Dignam
65. This witness was an employee working now with Bulmers but had worked with the defendants for eleven years prior to this as a production manager until June 2016. At the time of this accident this witness confirmed that he was a night shift supervisor. This witness said that it was not permitted to ask a person to get down from the machine and that he doesn’t recall the plaintiff coming to him and felt that he would have reported it himself. He said that if a person was injured severely one would call for medical assistance and that it therefore would have come to his attention.
66. Under cross-examination this witness confirmed that he would have very little to do with the area in which the plaintiff allegedly fell and that it wasn’t his shift or area of responsibility. He clarified that it would not have been his duty to do an accident report form but he still would have reported such an incident.
67. He said that he would have been aware that there were issues about the number of bottles and that there was a premium on clearing blockages but not at the risk of safety and he agreed that he probably had used the phrase attributed to him by the plaintiff.
Anthony O’Loughlin, Operations Manager
68. This witness confirmed that the plaintiff was taken on a seasonal shift and that in 2010 there was an extra shift in the evening and that the plaintiff at the time was doing a course of study and he was free from 5pm to 10pm and it was ideally suited to him. He described the plaintiff’s employment as due to stop at the end of the summer in any event. The plaintiff had a forklift licence and had been five to six weeks on the particular machine in question.
69. With reference to the photographs this witness confirmed that it was very rare that blockages occurred higher up on the machine past the rail but it was not unknown. He said that guys normally get a ladder and this involves a technician or senior operator and he said that such a person was allowed to go up a ladder. The general operative would report to the senior operative. The general operative was not allowed to go up He had never seen a person climbing. The frame was for an electrical panel. He said Peter would never have asked the plaintiff to go up on the machine as described by the plaintiff.
70. Mr. O’Loughlin described the accident procedure and said he would come within five minutes if something serious had arisen. He said that the accident hadn’t occurred and he said it was a small working environment like a village and he said we would all know about it. This witness said that it would be a rare event to receive a letter about a claim and that he would have taken directions from solicitors before replying. He said he remembered a reply in response to Mr. McGrath’s letter. There were no documents or no incident report form received. This witness had it put to him that the evidence of Mr. Weste was that he handed in one sick certificate. There was no challenge to the accuracy or otherwise of this. He said he wasn’t aware what the wife was going to say and he asserted that there was no evidence of sick certificates having been handed in, and that perhaps they weren’t given in or perhaps that Mr. Weste made an incorrect statement. He said that he contacted Mr. Weste to find out what was his recollection and was surprised now to hear what Mr. Weste was saying.
71. This witness said that Mr. Weste is not in good health at the moment.
72. This witness said that he was twenty years with the company, had worked his way up, and that he would have taken it personally if somebody was making up a story. There are no certificates on his file. He presumes that the plaintiff was absent without leave and that no inquiries were made and he presumed therefore that the plaintiff left the workplace early and he said the operation was being scaled down at that stage in any event.
73. This witness confirmed that the machine in question produces 100 bottles per minute and that all machines run simultaneously. This witness confirmed that there was three to four minute lead time before there would be actual loss in production and that then the machine would lose 100 bottles per minute in terms of production.
74. It was put to this witness that the plaintiff said that he had lifted armfuls of proforma and had thrown them back and this witness said that that made no sense.
75. Mr. Yron Potes gave evidence and said that he was eleven years working in the factory and that he himself was a training co-ordinator. He said that he worked on how to run and start and stop the machine and that he would never touch mechanical parts. He said Sidels 1, 2 and 3 were identical machines. He confirmed that photograph 1 showed the rail dropping down and photograph 2 showed that new employees would be told not to touch machines as they have no mechanical experience. This witness said that the employees were told that if the machine broke they were to call the shift supervisor or the senior operator and to let him know.
76. Under cross-examination this witness confirmed that he was on holidays on 15th September, 2010. He said lots of things can go wrong and that employees are not told what to do but to go to a senior operative.
77. Peter Czernezewki described his position with the company as a general operative for the previous eleven years and that he had been promoted eight or nine months ago. He confirmed that he was working on the date in question in September, 2010. He denied the plaintiff’s version that he went to Sidel 2 and that the plaintiff went to Sidel 3 and said he was never working up there without a ladder.
78. He first asked whether they could free the blockage from the floor by using a bar, and said that if they weren’t able to fix it they would call a supervisor. He denied going up on the machine because he said if he did he would be sacked. He said first of all one would see could one free the blockage from the floor and one would have two to three minutes to get the ladder up to the top and see the problem. He said that any problem Mr. Cahill had he would have to call him and that he was not allowed to clear the blockage himself unless it could be freed from the floor. This witness said that there was always a ladder behind C2 or C1 or that it could be in the store in the same area. One could then bring it to Sidel 3, climb up to the top, and the time starts when one is at the top. It costs two to three minutes in production and he said one could not take short cuts when afraid of losing one’s job.
Submissions of the defendant
(a) That the accident the subject matter of the within proceedings did not occur.
(b) That if the accident did occur, the plaintiff acted contrary to his training in climbing the Sidel 2 bottling blowing machine and not using a ladder
(c) If, which is not accepted, the accident did occur, the plaintiff has exaggerated his injuries.
79. The defendants argue that the plaintiff’s evidence is both inconsistent and unreliable and raises the Supreme Court decision of Shelley-Morris v. Bus Átha Cliath – Dublin Bus, (unreported judgment dated 11th December, 2002).
80. In addition, the defendants argue that s. 26 of the Civil Liability and Courts Act 2004 applies to this case and should lead to the case being struck out by reason of false and misleading evidence on the part of the plaintiff. Denham J. in the Shelley-Morris case observed that there are three possible circumstances where s. 26 might apply. Firstly, where the whole claim is concocted i.e. a fraudulent claim. Secondly, where there is a genuine claim but where there is an exaggeration by the claimant of his injuries because of his subjective belief that the injuries have a worse effect than they have. She described this as involving no conscious lying by a plaintiff and indicated that in such circumstances the judge ought to determine the value of the damage suffered in accordance with the evidence but would not condemn the evidence of the plaintiff.
81. The third type of situation occurs where a genuine case establishing negligence is made, but with a plaintiff deliberately exaggerating injuries. At this point the judge hearing the case must exercise judicial discretion with reference to the credibility or otherwise of the witness leading to a situation where, if the court finds that the credibility of the witness is so undermined that the burden of proof has not been met, then the trial judge will dismiss the claim. Before this is done the trial judge may assess the credibility of the witness in light of the evidence of other witnesses. It is important to note that the Supreme Court upheld the finding in Shelley-Morris that the plaintiff exaggerated her injuries but the court declined to dismiss her claim in its entirety. That position has now changed as a result of s. 26 of the Civil Liability and Court Act, 2004 where it is now mandatory for the Court to dismiss a claim where the Court finds a plaintiff guilty of exaggeration of the type envisaged in Shelley-Morris . It is mandatory for the Court to dismiss the plaintiff’s claim where the Court has found that the plaintiff has given or reduced or dishonestly caused to give evidence that is either false or misleading in any material respect and secondly, that he knows that evidence to be false or misleading.
82. Eleven principles arise in the recent Court of Appeal decision of Irvine J. in Platt v. OBH Luxury Accommodation Limited [2017] 2 I.R. 382.
(a) Section 26 requires that the defendant establish an intention on the part of the plaintiff to mislead the court and secondly that he or she as adduced or caused to adduce evidence that is misleading in a material respect.
(b) A false and/or misleading evidence must be sufficiently substantial or significant in the context of the claim that it can be said to render the claim fraudulent.
(c) The defendant is not required to establish that the entirety of the plaintiff’s claim is false or misleading in order to succeed on such an application. Proof, for example, that a plaintiff’s claim for loss of earning was false or exaggerated to a significant extent may justify the dismissal in total of another wise meritorious claim.
(d) The defendant in the course of the hearing must afford the plaintiff an opportunity of counteracting the assertion that he gave false and/or misleading evidence or caused such evidence to be adduced on his behalf, knowing it to be fraudulent.
(e) The burden of proof initially rests on the defendant in a s. 26 application. The court should not rush to judgment where the court is relying on an inference from a proven or admitted fact. That interference should not be made likely or without due regard to all the relevant circumstances including the consequence of a finding of fraud. But that finding should not be shirked because it is not a conclusion of absolute certainty.
(f) Once the Court is satisfied that the plaintiff has knowingly sought to mislead the Court to a material extent, the onus must be on the plaintiff to then establish by whatever means or argument as may be available to him or her that it would be unjust to dismiss the action.
(g) The provisions of s. 26 are not to be used as an opportunity of allowing a defendant to escape liability by reason of the frailty of human recollection or the accidental mishaps as so often occur in the process of litigation. (O’Neill J. in Smith v. Heath Service Executive [2013] IEHC 360.
(h) Section 26 is designed to operate as a significant deterrent to claimants who might be minded to achieve an unjust result by misleading the court and/or their component concerning the truth of their claim in some material respect. Once the Court is satisfied that the plaintiff has given false and/or misleading evidence and the plaintiff has not adduced evidence that to dismiss the claim would cause an injustice, then the claim as a whole must fail and the legitimate parts of the claim cannot survive. Irvine J. at p. 90 of her judgment took the view that where a plaintiff furnished expert reports, which he or she later withdrew, either before or after the proceedings having commenced, the fact that they are withdrawn does not prevent a defendant from relying on s. 26 provisions, but equally the fact that a defendant has not sworn an affidavit verifying a claim does not bar a defendant from invoking the provisions of s. 26.
(i) When seeking to construe s. 26 of the 2004 Act, in a proportionate and fair manner, it is relevant to consider the extent of the falsity of the evidence, what the plaintiff hoped to gain from the false and/or misleading evidence tendered and whether the plaintiff had sought to deceive their own experts as well as those of the defendant.
83. What the court must consider:
1. The pleadings and reports and updated particulars of personal injuries. It is not necessary for me to repeat these in detail but it is quite clear from an examination of the “Further particulars of injuries” and also from the updated particulars of loss that the plaintiff claims that his quality of life is poor with pain from the neck of the left Temporomandibular joint as well as Paraesthesia in his hands with tingling and numbness and tenderness along the Para spinal muscles in the lower lumbar area with straight leg rise 80 degrees on both sides. In addition, the plaintiff advised the court and the defendant that he was unable to drive due to his symptoms or to undertake any work and was on disability benefit with severe pain particularly in the lower back and right leg and in the neck and right upper limb and that he was experiencing constant pain and discomfort in these areas.
84. In the updated particulars of loss, a claim for loss of earnings to date and for future loss of earnings (assuming retirement age at 68) were included. There was no qualification in the updated particulars of loss as to the extent of past and future loss of earnings being claimed.
85. Susan Tolan, Occupational Therapist, identified a number of significant barriers to employment as a result of her assessment, including the fact the plaintiff does not believe that he will work again in her view, and that he is therefore unlikely to either seek employment or undergo vocational training while he believes that he is unfit for work. Dr. Deirdre Gleeson, Specialist in Occupational Health, noted his complaints but felt that her physical examinations of him was normal.
The Defendant’s submissions on the Plaintiff’s evidence
86. The plaintiff described falls and lack of stability and that he had difficulty in standing for too long and that he was quite uncomfortable. He said it was like being stabbed in the lungs and that he felt that it was like “knocking the wind out of you” and that he could suffer massive spasms. In his view he is unemployable. He was particularly asked about being able to roll about the floor with reference to a photograph where his sister-in-law was falling upon him and he was laughing, and about his getting onto a rollercoaster which he described as a small mini-rollercoaster, although he accepted it it had a steep gradient and he said that he had no qualms on that. The plaintiff was also shown a different ride where he was shown descending at rapid speed and he agreed that he was enjoying himself and was not nervous and that he didn’t seem to have any pain or disability. It was pointed out that, significantly, the plaintiff admitted that his back did not trouble him after these rides. It is argued by the defence as being at variance with the reality for a man who claims to be in constant pain 99% of the time and liable to suffer a severe spasm on “sneezing”.
87. The plaintiff was shown photographs of himself cutting timber, loading and sawing, and admitted that he split the timber with an axe, that he was able to bend down, pick up blocks, load them onto a trailer and that he was able to use a chainsaw. The plaintiff admitted that he had used a chainsaw to saw the blocks and cut blocks and load the trailer all in the “one day”. He denied experiencing a velocity of vibration when it was put to him that if the log doesn’t split at all that all that velocity and momentum comes to an abrupt halt and gives a jar to the shoulder up the arm and shoulder. He said he had not experienced that. He said he did all this work in one day and that he could only use the chainsaw for a limited amount of time. He argued that he told the doctors he could do physical activity within reason until his back or his neck would no longer allow him do it.
88. The evidence of the private investigator is referred to and in particular that on the 17th September, 2015 the plaintiff’s home was put under surveillance from 10am till 12:30pm. The plaintiff was observed splitting timber for that period together with another person. Likewise, on 30th September, 2015, reference was made to the evidence gathered when surveillance was carried out on that date from 12noon till 4pm during which time the plaintiff was observed using a chainsaw. He was also observed with a younger male filling the trailer with cut logs. The plaintiff was the only person present observed cutting timber on 1st October, 2015 from 1pm to 3:30pm.
89. Again on 2nd October, 2015 the plaintiff was observed cutting timber with an axe. It was argued that none of the events referred to were once off events nor were they for a short period of time.
90. In terms of the plaintiff’s description of the accident reference is made to the reply to para. 3A of the particulars, when the plaintiff asked the question as to who had instructed the plaintiff to climb upon the hopper. By reply on 2nd August, 2013, “it was normal practice to climb onto the hopper in order to free the blockage. On the occasion in question the plaintiff had informed his supervisor (Mattie) that the hopper was blocked and that he was going to climb up to free it. While he was on the hopper freeing the hopper, he was observed by the nightshift supervisor ‘Anthony’ who passed no comment as this was a regular occurrence”.
91. At the hearing, the plaintiff described his own Sidel 2 machine breaking down and that he then went to Peter who was working on Sidel 3. The plaintiff identified that Peter was at the top of Sidel 3 machine emptying the preform orientator redbox. His evidence had been that he went to his colleague Peter and told him that he had a problem with Sidel 2, that he had tried to reset the timing on it and couldn’t get it to restart, and that Peter said to him to clean up the orientator and that Peter would go and fix the plaintiff’s machine. He then climbed on the machine where Peter was and started bending in forward, catching the preforms and throwing them back into the hopper. The defence point out that this an entirely different account was given by the plaintiff in his replies to particulars, and that his evidence of how the accident happened should have been included properly in the replies to particulars, and that the two accounts could not be reconciled. It is also pointed out that there is no independent evidence of any witness seeing the plaintiff falling or being paralysed on the factory floor. His colleague Peter denied outright any suggestion that he had directed the plaintiff to climb up on the Sidel 2 machine.
92. Although the plaintiff claimed to have reported the accident to Anthony Dignam, he said in his evidence that no such complaint was made to him.
93. It is argued that regarding a previous accident suffered by the plaintiff, he indicated in his evidence that he was only out of work for four or five weeks in relation to that accident. Nonetheless, his personal injury summons, which issued in March, 2012 regarding those injuries stated that: “the plaintiff’s injuries resulted in gross soft tissue injuries to his lower spine and his prognosis and outlook should be regarded”.
94. It is argued on behalf of the defendants that, given the plaintiff’s personal presentation in court, he sought to promote his disability. He was slow climbing into the witness box throughout the trial and maintained his varying positions of sitting and standing in court. His own subjective presentation of his symptoms, it was suggested, was misleading, and could not be reconciled with the surveillance carried out by Declan Clarke in September, 2015. In particular it was argued that a man who feels that his own hand is not his own accepted that he used a chainsaw, and a man who believes that he is liable to fall, that his legs are dead, that it is unsafe to drive a car, willingly took up a chainsaw. The plaintiff in their submission describe their clients’ employment with the defendant as a seasonal temporary employee in May, 2010, working 5pm to 10pm evening shift initially. He was obliged to man the Sidel 2 machine within the tabard area where “preform” plastic bottles were blown into full sized bottles. The work then was extended till 1:30am. The accident occurred on 15th September, 2010 at 9:30pm when the plaintiff was working on his Sidel 2 machine and a problem developed with the timing. He then went to the Sidel 3 machine and found Piotr Czernejwski standing on the frame of the machine clearing by hand a blockage of preforms in the top of the machine. Having explained his difficulty to this gentleman, he was told by him to finish up what he was doing while Mr. Czernejwski went to investigate the problem with the plaintiff’s machine.
95. The plaintiff proceeded to climb onto the frame of the machine and stood on the uppermost bar while clearing the blockage by hand. While throwing an armful of preforms back into the hopper at the foot of the conveyor he lost his balance and fell backwards. He described striking his head off something as he fell before hitting the ground, landing on his coccyx and elbows. He said that he was on the ground for one to two minutes, no more than three minutes, and that no one observed him during the period as there were only two people working in that area. After that he met Anthony Dignam, the night shift supervisor, to whom he described what had happened and whose response was to chide him for being up on that machine. The plaintiff then worked on the palleting area and was unable to do so due to pain. He told Mattie O’Brien, the evening supervisor, what had happened and that he would have to go home. The plaintiff’s evidence was that he went to a nearby carpark when driving home but that he was unable to continue and had to telephone his wife to collect him. He telephoned the following day to the day shift manager Tom Weste to explain to him what had happened and gave medical certificates for a number of weeks before the plaintiff received a P45 from the defendant in the post.
96. Tom Weste gave evidence that on 16th September, 2010 he received a phone call from the plaintiff to tell him that he had suffered a fall while clearing a blockage and the plaintiff told him he would not be able to come to work that night. Mr. Weste advised him to take the next two nights off and the plaintiff telephoned him the following Monday saying he had been to the GP and that the GP had given him a sick certificate for the following week. The plaintiff’s case was that he handed in the sick certificate in the factory. Without specific recollection, he believes that he would have handed it to the factory receptionist. His wife confirmed his version of events and that she picked up three or four medical certificates and left them into the factory over the following number of weeks and the defendant did not challenge the evidence of either of these two witnesses in relation to the medical certificates being provided to the factory. There is a conflict on the evidence in this regard in that in the plaintiff’s preliminary letter of claim, Anthony O’Loughlin, Production Operation Manager, stated by letter of 3rd March, 2011 that they had no reported accident on site on 15th September, 2010, that no accident report form was filled out, nor had they received any doctor’s cert or hospital certs to say that the plaintiff was out on sick leave. It is pointed out that it is very difficult to reconcile Mr. O’Loughlin’s evidence in this regard with the unchallenged evidence given by Mr. Weste and Mrs. Cahill.
97. The defendant failed to make contact with the plaintiff after 15th September, 2010 and the plaintiff argues that the factory was well aware that the accident had occurred and that the plaintiff had suffered an injury. That is consistent with the fact that medical certificates were handed in for a number of weeks before the plaintiff was given his P45. It is argued that the plaintiff therefore has established on the balance of probabilities that the accident described by him occurred in the course of his employment with the defendant on 15th September, 2010.
The Plaintiff’s submissions on the negligence of the Defendant
98. It is common case that there was a practice whereby employees climbed onto the frame of a machine to free a blockage and that same constituted an unsafe system of work. Mr. Jack O’Reilly, Consulting Engineer, gave detailed evidence in relation to the dimension and functions of the machine in question and stated that the upper most bar of the frame of the machine was seven feet above ground level and this was the bar on which the plaintiff says he was standing when he fell. He expressed the view that if an employee climbed onto this bar it would not be a safe system of work. The correct means of access ought to be by way of a platform with handrails and toe boards. While the defence did not dispute Mr. O’Reilly’s evidence, they claimed that the practice of climbing onto a machine did not exist and that where a blockage occurred it would a task for a fitter or senior operator to gain access using either a scissors lift or ladder. Evidence was given by Thomas Sheehan who worked as a production manager for the defendant for sixteen years. He said that the tabard was his main area and he described the different types of blockages in the preform orientation rollers which could occur a number of times in the course of a twelve-hour shift when it would be necessary to climb the machine in order to free it.
99. There was a dispute on this evidence, with a number of employees called to give evidence to refute this. The risk assessment document provided by the defendant on discovery and referred to in the evidence of Mr. O’Reilly, Engineer, identifies as a hazard the risk of a hand becoming trapped in the preform orientation rollers. Such a risk could only arise if an employee was trying to clear a blockage at the top of the machine by hand. Mr. O’Loughlin said in evidence that once a machine stopped running it would be three to four minutes before production would be affected. Mr. Pitor Czernejwski stated that once one had access to the top of the machine, it would typically take three to four minutes to clear a blockage by hand. This meant that time spent looking for a ladder or other means of access and setting it up would reduce production time. It is submitted therefore that it is entirely understandable that a practice of adopting a convenient but unsafe means of access to the top of the machine developed.
The Plaintiff’s submissions on the medical conditions of the Plaintiff
100. The objective evidence, it is submitted, shows that the plaintiff sustained a soft tissue injury to the neck, lower back, elbows and between the shoulder blades. He was treated with anti-inflammatory and pain killing medication by Dr. John Carey GP. He underwent physiotherapy. He developed, over time, radiation of pain to the lower back and to the legs, his right leg in particular, and pins and needles going down the right arm into his hand as well as pain. X-ray investigations included the following:
(i) X-rays of the lumbar spine taken on 4th February, 2014 showed an absence of the normal lumbar lordosis which was considered consistent with muscle spasm with reference to the second report of the 16th February, 2018 of Mr. Kaar.
(ii) An MRI scan of the cervical spine of 3rd June, 2015 showed degenerative changes from C3 to C7 with bilateral foraminal stenosis and degenerative change at C6/7 more so on the right than the left;
(iii) MRI scan of the lumbar spine taken on the same date, which also showed degenerative changes at L4/5 with moderate stenosis;
(iv) EMG studies of the upper and lower limbs carried out on 28th day of September, 2015 which showed chronic neuropathic features of the C7 T1 distribution on the right, implying right lower cervical radiculopathy and similar features of the LS S2 and the L2-L4 distributions in the legs, implying lumbosacral polyradiculopathy.
The plaintiff was prescribed Neurontin for nerve pain and the antidepressant Fluoxetine by his GP Dr. Morrissey in the summer of 2017. Dr. George Kaar, Consultant Neurosurgeon, saw the plaintiff on 21st December, 2015 and on 15th February, 2018, when he made positive findings on clinical examination in relation to the movement of the lower back and he considered that a fall from a height such as that described by the plaintiff would give rise to a significant strain to the neck and lower back. This doctor found that the results of EMG studies indicated irritating or stretching of the nerve roots emerging from the cervical and lumbar spines and that this was more likely to be due to trauma where there was a background of stenosis in the cervical and lumbar spine as shown on the MRI scans.
105. The doctor found that there was no improvement in the plaintiff’s symptoms and that problems with radiation of pain had increased and that the plaintiff had become depressed and he felt that that was a significant factor militating against his recovery. He described the plaintiff’s symptoms as being both physical and psychological but he did not see the plaintiff returning to his pre-accident levels of activity and he was likely to remain unfit for physical work.
106. In the plaintiff’s submissions it is argued that Dr. Seamus MacSuibhne, Consultant Psychiatrist, shortly prior to the commencement of the trial, diagnosed the plaintiff as suffering from a depressive disorder which he described as being between moderate and severe, and he said that this was an independent diagnosis and he was not reliant on medical reports concerning physical injuries suffered by the plaintiff. Its context was the pain and the impact on his life and activities of daily living. He found him not to be currently fit for work. This doctor put the plaintiff on a different medication and recommended cognitive behavioural therapy. He said the plaintiff might be fit from a psychological point of view to return to some work within a period of twelve months, all going well.
107. Dr. Gleeson by contrast felt that the plaintiff could return to “full normal duties without restriction”. She did not consider it necessary to consider the results of investigations such as MRI scans and nerve conduction studies before concluding that the plaintiff was fit for work.
108. The defendants did not challenge Dr. MacSuibhne’s evidence that the plaintiff is suffering from a depressive disorder. The Court is urged to prefer the evidence of Dr. Kaar because of his particular expertise and his clinical examination but also because of the x-ray, MRI scans and EMG studies and because of Dr. Gleeson basing her opinion solely on her clinical examination and that she did not consider the results of the various investigations had any relevance one way or the other. It is noted that Dr. Gleeson’s opinion did not appear to take into account the plaintiff’s depression and how that might be affecting his capacity to rehabilitate himself. The plaintiff argues that there is inconsistency in the defendant’s position in that initially they argue that no accident occurred and then they proceed to argue that the plaintiff exaggerates his injuries.
109. It is argued on behalf of the plaintiff that he did not give evidence to the effect that he was completely disabled. He said he had good days and bad weeks. He candidly admitted that he had used a hedge trimmer to cut hedges and a saw and axe to cut and chop timber and he agreed that he did this with the assistance of his four sons in autumn 2015, when he was under surveillance by Mr. Clarke.
110. Regarding the Facebook profile of someone other than the plaintiff who showed the plaintiff engaged in various activities, as well as the photographs taken by Mr. Clarke, Dr. MacSuibhne did not consider that any of these activities were inconsistent with this diagnosis of depression and Ms. Susan Tolan, Occupational Therapist, felt in particular that engaging in the chopping of timber was part of a family activity and that that could possibly have a therapeutic effect for the plaintiff. While the defence submissions note that Dr. Kaar accepted a proposition put to him in cross-examination that the depiction of the plaintiff in the photographs and surveillance “would not be consistent” with his presentation to Mr. Kaar, the plaintiff has no note or recollection of Mr. Kaar giving this evidence, but does recall that Mr. Kaar drew a distinction between the plaintiff chopping timber at his own pace, and as part of a regular activity which he would be expected to carry out in the course of full time employment. It is submitted that the photographic and surveillance evidence does not demonstrate that the plaintiff gave false and misleading evidence as to the extent of his disability and his inability to work. It is submitted that this material does not demonstrate that the plaintiff is fit for physical work on a full-time basis. As the report and evidence of Susan Tolan indicates, the plaintiff had a history of continuous employment prior to this accident but the work he did was of a physical nature. Although the plaintiff has obtained a FETAC qualification to work as a care assistant this is pointed out to be a physically demanding job involving heavy lifting, carrying and manual handling.
111. The submissions of the plaintiff point to the fact that it is not sufficient for a defendant to establish that the plaintiff has given false and misleading evidence on a material issue but that critically, the defence must also establish that same was knowingly given by the plaintiff. The subjective test in Aherne v. Bus Éireann [2011] IESC 44 at para. 34 is referred to. The Court must be satisfied as a matter of probability that the plaintiff knows he is giving evidence which is false and misleading. This is an important consideration in circumstances where the evidence shows that the plaintiff suffers from a significant depressive disorder. It is clear from the evidence of Dr. MacSuibhne and Mr. Kaar that the plaintiff’s depression may be affecting his perception of his injuries and his capacity to engage in meaningful activity. Dr. Gleeson suggests in her report and evidence that the plaintiff may have chronic pain syndrome, a condition which she described as having “biological, psychological and social influences”.
112. It is argued that the medical evidence in the case and the fact that the plaintiff’s mood swings in the years following this accident where this contributed to the breakdown of his marriage is at odds with the picture which the defendant seeks to paint of the plaintiff as a “malinger”. The actuarial report was admitted in evidence without formal proof. It is submitted that figures for both past and future loss of earnings are calculated on the assumption that, but for his accident, he would have obtained work as a care assistant earning €641.00 net per week. The report gives a range of figures for both past and future loss of earnings depending on the assumptions applied and the fact that the figures are put forward in the actuarial report does not equate with the plaintiff claiming that he has an entitlement to recover such sums and reference is made to Nolan v. O’Neill [2016] IECA 298 at para. 56 where Irvine J. in the Court of Appeal indicated:
“I find myself in significant agreement with the submission made by Mr. Counihan S.C. on the plaintiff’s behalf that claims for loss of earnings postdating any particular accident are always a matter of some speculation and that this is why actuaries, when they prepare their reports, often offer a range of options to a court as to the level of earnings which a plaintiff might have expected to earn had they not been injured.”
113. It is argued on behalf of the plaintiff that it is a matter for this Court to determine the extent of which the plaintiff has been or remains unfit to work and if so for how long that is likely to be the case as well as the likely path his career would have taken had the accident not occurred. In this regard, the evidence of Dr. MacSuibhne may be of some importance insofar as he expressed the view that if the plaintiff received the appropriate therapies he might be in a position from a psychological point of view to undertake some work within a period of twelve months. It is submitted that the losses set out in this report do not involve false or misleading evidence so as to engage the provisions of s. 26 in circumstances where there is no evidence to suggest he has been engaged in paid employment since the accident. The plaintiff therefore argues that the defendant has failed to discharge the onus under s. 26 of the 2004 Act.
114. The defence summed up their case by saying that there was fabrication in this case and that if the accident did happen it was the plaintiff’s own fault.
Findings of Fact
115. This Court has considered all of the evidence in the case and notes that there will always be inconsistencies to be balanced and teased out. In terms of the plaintiff’s personality, he comes across as having a willingness to please and to cooperate and, having viewed him carefully as he gave his evidence, it seems to this Court that he is a credible witness. The description of how the accident happened and the description of how he fell and the very particular injuries he suffered, are consistent with the medical evidence, in particular the medical evidence of Dr. Kaar who conducted objective testing and these are listed in the plaintiff’s submissions. Dr. Kaar, giving his particular expertise and objective testing, made findings which in the view of this Court are completely consistent with the description of his difficulties as described by the plaintiff in the medical sense. The Court pays particular attention to the expert evidence of consultant psychiatrist Dr. MacSuibhne. Dr. Kaar also felt that the Court had to take into account the impact of the man’s mental health difficulties on his capacity to rehabilitate. This was also the evidence of Dr. MacSuibhne.
116. The finding of this Court is that the plaintiff did not either exaggerate his injuries in the context of the medical evidence and suffering he had to endure, nor did he willingly mislead the court. The reverse is the case because he willingly and freely admitted that he had been assisting with the preparation of wood with other family members. Dr. Kaar pointed out that he recommended that he exercise during his visits to him.
117. This Court accepts the evidence of the plaintiff that he did produce medical certificates and the Court also accepts the evidence of his wife, from whom he is now separated, who confirmed that she brought some of the certificates in to his workplace for him when he was unwell.
118. This Court finds that the incident did in fact occur and was reasonably foreseeable and that an unsafe system of work was in place. In that regard, the Court accepts the evidence of Mr. O’Reilly, Engineer, in particular when he identified an unsafe system of work in breach of the statutory regulations with the risk of entrapment concerning manual removal of a blockage and a hazard created in how a blockage is removed with no means of climbing up.
119. The Court notes that the plaintiff had been in the course of training to take up what would have been a very good source of income for him and was unable to complete that training as a result of this accident. The Court accepts the position of the plaintiff as expressed through Counsel in relation to the guide as furnished in terms of actuarial figures, but notes also that it was submitted that the Court might prefer to deal with the matter in a general way. This gentleman has been out of work for a long period of time since this accident and at a minimum will be unable to work for at least one year from this point on in accordance with the evidence of Dr. MacSuibhne. If he receives appropriate therapies in the meantime, he may be able to resume employment.
120. This Court prefers the medical evidence adduced on behalf of the plaintiff and the evidence of Dr. Gleeson that the defendants ought to have considered the objective medical findings in terms of MRI testing etc.
121. The point made by Dr. Kaar in relation to the photographs put to him taken by the private investigator for the defence, Dr. Kaar noted that these were snapshots in time and that there was no indicator of the capacity of this particular plaintiff to resume fulltime work.
122. In relation to the other photographic evidence of the private investigator the plaintiff freely admitted to cutting wood himself but he also said in his evidence that he had “good days and bad weeks”. In the overall context of this case, the Court’s view is that this man suffered an injury which he simply should not have suffered at work, nor should he have been put in a position where he was carrying out the task which led to the accident. Sufficient equipment ought to have been in place to comply with the safety regulations as described by Mr. O’Reilly, Engineer. In addition, this Court finds that there was no fraudulent claim in this case, nor did the plaintiff mislead this Court. On the balance of probabilities this accident happened as described by the plaintiff as consistent with his injuries which are consistent with the evidence of his medical advisors. This Court considers that the sum of €85,000 to include pain and suffering to date and pain and suffering into the future is an appropriate award in the light of the above findings, and in particular in light of the medical evidence. This takes into account for at least one year as a minimum the plaintiff will not be in a position to undertake employment. His future is somewhat uncertain because if the therapies recommended by Dr. MacSuibhne do not work then he is at risk of an absence of any further improvement. The court has taken into account very carefully the link made by both Dr. Kaar and Dr. MacSuibhne of the impact of the plaintiff’s depression and mental health issues on his capacity to achieve full recovery.
123. The figure for agreed special damages is €3,450.00 and the figure awarded in general damages is €85,000 giving a grand total of €88,450 and costs on the High Court scale. Stay refused.
Shannon Ryan v Jack Gill
2016 9858 P
High Court
3 May 2019
unreported
[2019] IEHC 425
Mr. Justice Meenan
May 03, 2019
JUDGMENT
Claim
1. On 26 December 2014 the plaintiff was a back-seat passenger in a motor vehicle being driven by the defendant when it was involved in a collision. A photograph of the motor vehicle taken after the collision illustrates the severe nature of the impact given the extensive damage shown. As a result of the collision, the plaintiff sustained personal injuries, loss and damage. The plaintiff was wearing a seatbelt at the time and liability is not in issue.
2. The plaintiff was born on 7 December 1998, was sixteen years of age at the time of the accident and is now twenty.
3. Following the accident, the plaintiff was transferred by ambulance to the Accident and Emergency Department of University Hospital Limerick. The plaintiff had a Glasgow coma scale of 8/15. On the Glasgow coma scale, a reading of 3/15 would represent a person being almost entirely non-responsive so it can be seen that, at that stage, there were serious concerns for the welfare of the plaintiff. She was intubated for a number of hours. Whilst in hospital, the plaintiff developed a severe migraine and became quite agitated. She developed some numbness in her right upper and lower limbs. The plaintiff has no recollection of the accident and was discharged from hospital on 29 December 2014.
Personal Injuries
4. A CT scan of the plaintiff’s brain showed no evidence of a brain injury. The plaintiff’s injuries consisted of neck and upper back pain. She has also suffered from recurrent headaches in the right fontal and temporal area since the accident and these headaches have been accompanied by photophobia. Prior to the accident, the plaintiff did suffer from migraines during her childhood years. She had not, however, experienced any such migraine for approximately two to three years prior to the accident. The plaintiff further sustained an abrasion to her right tibia and while this has since healed it has resulted in a slight discolouration which can become more apparent following a shower or exposure to the sun.
Medical evidence
5. There was a considerable amount of medical evidence available to the Court, in particular evidence on behalf of the plaintiff. There were a number of agreed medical reports which I have considered but I will concentrate on the evidence given by Mr. John Rice, Consultant Orthopaedic Surgeon, Dr. Sean O’Sullivan, Consultant Neurologist, and Dr. Alex Stafford, Consultant Radiologist, on behalf of the plaintiff. The Court additionally heard from Mr. Brian O’Keeffe, Consultant Clinical Psychologist, also on behalf of the plaintiff. On behalf of the defendant, the Court heard evidence from Dr. Brian J. Spillane, Sports and Orthopaedic Physician.
6. Mr. Rice saw the plaintiff on numerous occasions between August 2016 and March 2019. He found that there was an overall normal range of movement of her cervical spine but that both the touching of the trapezius muscles at the end range of lateral flexion and rotation of her head and neck resulted in pain and tenderness. Given the length of time her symptoms have persisted, Mr. Rice reached the conclusion that the plaintiff has developed a chronic pain syndrome with an established pain pattern. Mr. Rice was satisfied that his findings were consistent with the various MRI’s carried out on the plaintiff which revealed a loss of lordosis in the cervical spine region and minor left sided torticollis. These findings are consistent with ongoing muscle spasms resulting in the symptoms described by the plaintiff. Mr. Rice gave a very guarded prognosis for the plaintiff.
7. Dr. O’Sullivan is an experienced and highly qualified neurologist. He has published over 100 peer-reviewed papers and is the author of numerous chapters in books on clinical neurological topics. Dr. O’Sullivan has seen the plaintiff on many occasions and saw her as recently as 5 March 2019. Dr. O’Sullivan referred to the plaintiff’s neck pain, upper back pain and, on occasion, severe pains in upper limbs in the form of shooting pains which have improved in frequency and severity. Evidence given by Dr. O’Sullivan was particularly instructive on the matter of the headaches which the plaintiff has being experiencing since the accident. These headaches occur once or twice a week and are noted to be 7/10 in severity but improve within an hour or two after taking paracetamol. When the headaches are present the plaintiff is dizzy and she continues to have associated photophobia.
8. According to the Dr. O’Sullivan, the plaintiff’s symptoms are consistent with post-traumatic headaches. He considers that, at this stage, a full recovery is very unlikely as there has been no significant improvement in these headaches in excess of four years since the accident. Dr. O’Sullivan accepted that there was no significant abnormality present on the MRI’s that had been taken. He is fully satisfied however as to the genuineness of the plaintiff’s complaints and considered the absence of such abnormalities to be as a result of the technical limitations of MRIs.
9. Dr. Stafford, Consultant Radiologist, gave evidence of the various MRI’s and confirmed the various findings in respect of which Mr. Rice and Dr. O’Sullivan gave their opinions.
10. Mr. O’Keeffe, Consultant Clinical Psychologist, gave evidence that the plaintiff suffered psychological shock in addition to the physical injuries already described. He described this as an “adjustment disorder” and stated that “post-traumatic disorder” was only a possibility. The plaintiff has residual car-phobia symptoms which are likely to resolve over time.
11. The plaintiff was examined by Dr Spillane, Sports and Orthopaedic Physician, on behalf of the defendant. Though the plaintiff made the same complaints to Dr. Spillane as she had made to her own doctors he had a more optimistic prognosis. He expected that the plaintiff would have a gradual improvement and make a full recovery over the next twelve months. This opinion was given in March 2019.
12. Insofar as there is a dispute between the various doctors involved in assessing the plaintiff’s injuries it seems to me that such dispute centres on the prognosis for the plaintiff. Given his particular specialisation and qualifications, I would prefer the evidence of Dr. O’Sullivan and find, as a matter of probability, that the plaintiff’s prognosis is as stated by him. Further, I would also prefer the evidence of Mr. Rice, Consultant Orthopaedic Surgeon, on the plaintiff’s prognosis given the frequency which he has reviewed the plaintiff’s condition since the date of the accident and the overall detail of his reports and evidence to the Court.
The plaintiff
13. The plaintiff herself gave evidence to the Court. As much of the plaintiff’s injuries could not be evidenced on the MRIs or other scanning the Court had to rely upon the truthfulness of her evidence concerning the nature and extent of her ongoing injuries. I found the plaintiff to be an honest and truthful witness who did not seek to exaggerate or embellish her various complaints.
14. At the time of the accident the plaintiff was a secondary school student and was active in sports, in particular camogie which she played to a high level. The effects of the injuries have meant that she can no longer play camogie and her overall social life has been curtailed. This is particularly so as a result of the ongoing headaches. The plaintiff’s academic life has also been affected. Though the plaintiff’s absences from school were limited, I am satisfied that the pain from the recurrent headaches, as was described by the plaintiff, probably contributed to an underperformance in the Leaving Certificate examinations and a failure to attain the points required to study the course of her choice, Social Care Practice. Nonetheless, the plaintiff has overcome this and is now studying for a qualification in her chosen subject. The fact that the plaintiff has had to give up camogie is a particular loss to her given her ability in the sport. This must also have the effect of depriving her of other aspects of her social life.
15. The plaintiff is under a duty to take all reasonable steps to mitigate her injuries. I am satisfied that the plaintiff has taken such reasonable steps by way of physiotherapy and medication and I accept her reluctance to take painkillers on a frequent and ongoing basis due to her young age.
16. In assessing damages, I must have regard to the prognosis for the plaintiff as stated by Mr. John Rice and Dr. Sean O’Sullivan. This prognosis is, at best, very guarded. The plaintiff is only twenty years of age and has a full life ahead of her. At this stage the plaintiff is probably able to adjust her life so as to reduce the effects of the recurring neck pain, upper back pain and headaches. However, the plaintiff’s circumstances may change over the coming years and the it may be that she will be unable to make the adjustments which she can now do. As such, the plaintiff is entitled to general damages representing pain and suffering to date and into the future.
Principles to be applied
17. There have been a number of recent decisions of the Court of Appeal on the principles that should be applied by a court in assessing general damages. I refer to Nolan v. Wirenski [2016] 1 I.R. 461 and Payne v. Nugent [2015] IECA 268. In Nolan v. Wirenski, Irvine stated at para. 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.”
18. The law relating to the award of general damages has been comprehensively reviewed in a judgment of Barton J. in BD v. Minister for Health and Children [2019] IEHC 173 wherein the aforesaid principles were restated. In assessing my award, I will follow these principles.
Book of quantum
19. When assessing damages, I am obliged to have regard to the Book of Quantum. While I have done so, it should be stated that the various figures referred to in the Book of Quantum are indicative only. This is all they can be as, in assessing damages, I must have regard to a number of factors including the age of the plaintiff and the effects which they injuries have had on the plaintiff and will continue to have on her and, in particular, on her working, social and recreational life. Additionally, the Book of Quantum is of very limited assistance in assessing damages for complaints, such as the plaintiff herein, who suffers from ongoing and regular headaches which, to a significant extent, are debilitating. The effects of such a problem will naturally vary from person to person.
20. In addition to the above, I have seen the blemish on the plaintiff’s leg. It is noticeable and I accept that it can become more obvious following being subjected to hot water or exposed to the sun. However, it is cosmetic and I would not consider it to be a “scar” as such.
Damages
21. By reason of the foregoing, I assess general damages as being:
(i) €45,000 to date;
(ii) €45,000 into the future.
This totals €90,000 to which must be added €2,115.11 agreed special damages. I will therefore make a decree in favour of the plaintiff for €92,115.11.
Adele Volkova v Patrick Dunne
4565 P
High Court
30 May 2019
unreported
[2019] IEHC 409
Ms. Bronagh O’Hanlon
May 30, 2019
JUDGMENT
1. The plaintiff in this action is a Ms. Adele Volkova (‘the plaintiff’) who is 70 years of age and was born on 27th September, 1948 and has lived in Ireland since 2005. She has four grown up daughters and has been widowed for the last thirteen years. The plaintiff had been a factory worker and cleaning lady and has been retired for the last three years. The defendant is a Mr. Patrick Dunne (‘the defendant’) who denies any negligence on his part.
The nature of the accident
2. The plaintiff’s case is that on or about 12.50pm on the 23rd November, 2016, at or near Edenderry, in the county of Offaly, where she was lawfully present as a driver on the public highway in her motor vehicle, the defendant drove his motor vehicle into collision with the plaintiff’s motor vehicle, as a result of which she suffered personal injuries, loss, damage, inconvenience and expense.
3. The plaintiff gave evidence to the Court that on the day of the accident she was travelling towards Portlaoise. She told the Court that in terms of weather it was a foggy day around midday when the accident occurred, although some sun appeared when they reached the town of Edenderry. Her passenger, Ms. Yolanta Dumskyte was navigating and giving her directions. The plaintiff’s evidence was that she said she was not driving faster than 30km per hour, and that the accident occurred on Fr. John Murphy Road and that she did not know the road previously.
4. Ms. Volkova said there was a pole on the right hand side of the road and that there were two cars parked on the left hand side. One of the cars was parked on the left as in photograph number 8 (which was shown to the Court) and just behind a driveway. The second car was parked on the roadway. This witness said that she was ahead of both of those vehicles and that there was no vehicle on either side of her car. Her evidence to the Court was that she had fully passed both of the vehicles and was ahead of the second vehicle; that she was driving on her left hand side and she was perhaps in the middle of the lane as the second vehicle was fully on the roadway. The plaintiff said there was no indicator on in her car and she did not get to the other side, she said that perhaps her wheel was on the actual lane. The plaintiff’s evidence was such that she just drove by very calmly but as she was driving past the vehicles, she felt an impact on her door to the left hand side of her vehicle. Ms. Volkova felt that there was no indication that the vehicle on the left was going to make a turn.
5. This witness took the view that naturally the impact to the left hand door by the defendant’s motor vehicle pushed her vehicle on to the road and that she acted in self-preservation in swivelling to the right of the road. She said she stopped her vehicle just behind the pole on the corner which was marked on photograph 10 (which was shown to the Court) where the impact occurred and that she had marked where the defendant’s car ended up.
6. This witness gave evidence that the defendant driver was very abusive towards the plaintiff and her passenger, and that he used abusive language in berating the plaintiff and her passenger for being immigrants. Ms. Volkova said she was not feeling well after the accident, but that she offered to exchange details because the damage did not seem to be too extensive. This witness confirmed that her motor vehicle was silver in colour and that the damage on it was caused by this accident. The defendant’s vehicle was black in colour and it was damaged in the accident and she took photographs of this.
7. Due to the language barrier at the scene of the accident (the plaintiff’s first language is Lithuanian) she put her mobile telephone on loud speaker and her passenger interpreted. This witness said that she indicated to An Garda Síochána what had happened.
8. The plaintiff subsequently received a summons from the same Garda in relation to a charge for dangerous driving. The plaintiff told the Court that she had no solicitor in the District Court, but after two days she entered a guilty plea and was convicted for driving without due care and attention and a €100 fine was imposed against the plaintiff. Ms. Volkova explained that she lives in Navan, Co. Meath and that the court was in Tullamore, Co. Offaly, which is quite a substantial journey.
9. This witness also indicted that it was her first time in the town of Edenderry and she noted that there was a speed limit of 50km/h and that she was not travelling in excess of that speed.
10. It was put to this witness that the defendant indicated to turn his vehicle right, looked in his rear mirror, saw a car and evaluated the distance of the car but was not concerned about it. It was further put to the plaintiff what the defendant used his brakes and his gears and slowed his car down and halted opposite the mouth of the junction. The defendant would say that he stopped his car with the right indicator on the inside but very close to the white line, and that he was front angled close to the right. Further, the defendant would say that his wheels were turned slightly to the right and that the plaintiff collided into the right of his vehicle. The plaintiff’s response to this was that the defendant was not telling the truth and that she did not see any other vehicle at that point.
11. It was further contended that Mr. Vincent McDonald, a witness to the accident, would say that he was coming out of the estate, stopped at the junction and saw the defendant’s car and that Mr. McDonald intended turning left towards Edenderry. The plaintiff disputed this and told the court that in her view her car was not on the incorrect side of the road and she denied that Mr. McDonald had to reverse back to avoid her hitting his car. She said that there was no vehicle ahead of her and she further denied that her vehicle ended up 20 metres down the road.
12. The plaintiff did accept that her vehicle ended up on the incorrect side of the road, because she said the defendant pushed her off to that side and that instinctively she swivelled to the right to protect her passenger and she said that she has a three door vehicle and there was damage to the right side. The plaintiff’s contention was that had the defendant stopped where he said he did, the front of her car and not the side or doors would have shown damage.
13. This witness contended that during the accident both cars were on the left hand side of the road and that a Garda asked her to move the car. She said that she had been using sunglasses at the time.
The plaintiff’s injuries
14. This witness then gave evidence that she returned to her home after the accident and that she was able to drive home and went to her doctor a few days later.
15. This witness was given painkillers by her doctor in terms of treatment and she has ongoing neck symptoms confined to her neck. She attends weekly physiotherapy and can still only sleep on her right side. Her evidence to the Court was that she experiences difficulty in taking medicine for the neck pain because she has a number of heart problems.
16. Under cross-examination this witness said that she was advised to attend hospital. She had scans three days later and she had eleven sessions of physiotherapy in all. She said she had bills in relation to seven of those and she does have a medical card. This witness said that the physiotherapy cost her €30 per session and that she still goes to it every week. She said that while she wasn’t counting the number of visits of physiotherapy, financing this was becoming a major problem – however she feels that it is more important that she feel well. She has not kept receipts for all the physiotherapy.
17. This witness confirmed to the Court that any back problems she had have since resolved but that she has ongoing neck trouble. She gave evidence that the back problems took between one and two to clear up, that she saw Mr. Nassar, a Consultant Orthopaedic Surgeon and she told him that she still had back problems at the end of 2018.
18. This witness gave evidence that when she was with the doctor he checked her capacity to bend and that he noticed that she had difficulty straightening up after bending down and that there wasn’t much pain there at that time.
19. The claim is confined to neck difficulties and anxiety. This witness confirmed that she no longer suffers from anxiety when driving, but that she was unable to drive for a year post-accident because she felt scared to do so.
Ms. Jolanta Dumskyte
20. This witness described herself as a music teacher of Lithuanian origin and she identified herself as a passenger in the vehicle at the time of the accident. Ms. Dumskyte said she was holding a telephone during the car journey because neither herself nor the plaintiff were sure of the direction to Portlaoise and that therefore they were using GPS navigation. Ms Dumskyte confirmed that the plaintiff was not going at a speed in excess of 30 km per hour.
21. This witness reiterated that she saw an empty car parked on the corner of the road on the left, and that there was one car further down the road and she confirmed that she remembered when they passed the empty car that she saw that there was another car. Ms. Dumskyte said she felt the impact on the doors where she was sitting and she said herself and Ms. Volkova asked one another were they alright. They then got out of the car and she ran to the other car where the driver of that car was already out of his car.
22. This witness tried speaking to Mr. Dunne in English but her English was not very good and her driver had told her there were only small scratches on the car but the defendant was already angry and she said that she explained that they needed to exchange details of insurance. She said that her driver wanted the other driver to speak to her interpreter but he talked a little and then began shouting and she said her own English was very poor and he was using swear words and insulting behaviour.
23. This witness said that she also offered to the Garda to speak to her interpreter over the phone and that the garda officer asked the driver to move the car and she said she was not present at that moment. This witness said that she did not see the other car moving but that she did remember seeing a car parked on the road and that that car was opposite the junction. Then she remembered an impact. She clarified that the defendant referred to foreigners but she was not quite certain exactly what words were used.
Mr. Robert Burke
24. Mr. Robert Burke, BSC Building Surveyor, MIEI prepared a report for the Court, and described the locus as a very straight line of 160 m and he said one could travel 11.52 seconds to cover 160 m at 50 km per hour. He said that at 80 km per hour it would take 5.22 seconds to cover the same distance and that at 30 km per hour it would take 19 seconds to cover the same distance.
25. The defendant said he was waiting to turn right and Mr. Burke said a person is entitled to overtake on a broken white line if it is safe to do so and that one ought to move out and one can turn if it is safe in terms of the rules of the road. He also pointed out that it is not appropriate to turn the wheels of the car until it is safe to do so. He said there is no impediment to seeing the vehicle behind if one is paying due care and attention.
26. Mr. Burke made reference to the first AXA photograph where there is no damage to the car and there is a suggestion it passed before the impact or that the plaintiff was there first before the impact occurred. Mr. Burke said that had the plaintiff swerved at the last minute there would be more damage to the front of her vehicle but he said she appears to have just gone past before she was impacted on her side and that she would be entitled to keep clear of two parked vehicles and to move over. He said it was more probable that the accident occurred as described by the plaintiff and her witness in terms of the damage to the two vehicles. He said the plaintiff’s vehicle had gone past by, even if only by a couple of millimetres and if that were not the case we would see damage to her front. Mr. Burke said that had there been damage to the front bumper and headlights of the car he would take a different view.
27. Mr. Burke made the point that a third party vehicle parked alongside the road must yield to traffic already on the road before entering onto the road. He stressed that it would take the plaintiff 11.5 seconds to travel a 160 metres at 50km per hour. He also made the point that there was no impediment to the view of the third party driver who is experiencing due care and attention to prevent them from seeing the vehicle approaching from behind.
28. In the expert opinion of this witness, liability for this accident rests with the third party driver who attempted to enter onto the road from a parked position without yielding to oncoming traffic.
29. Noting that the damage to the plaintiff’s vehicle occurred to the front wing and passenger side door, Mr. Burke found that this damage would indicate that the front of the plaintiff’s vehicle had already passed the front of the third party vehicle and that in those circumstances there was nothing that the plaintiff could have done to have avoided this accident. Mr. Burke’s evidence was very compelling in this regard.
Mr. Patrick Dunne
30. Mr. Dunne confirmed that he was of Ballyheashill, County Offaly but that his ex-wife lived in Greenwood Park, Edenderry and that therefore he knew the area. On the day of the accident Mr. Dunne had just brought his ex-wife and her sister shopping.
31. The defendant retraced his steps from the accident and said that 70 metres from the right hand junction he turned on his indicator, looked in his mirrors, went down on his gears and then went down the slope in that position. and that Mr. McDonald was in a vehicle at the junction and that he himself stopped in position and he would have to turn in to Greenwood Park. In describing the position of his vehicle, he said he was straight on the white line. Mr. Dunne said that he saw Mr. Vincent McDonald who was coming out of the junction and that he himself stopped. He said the junction was very narrow, and he was giving him room to come out.
32. After the impact of the car and he said he got out of his car and was shocked. Mr. Dunne said that a lady came with a phone in her hand and one lady stayed where she had parked. The younger of the women came over to Mr. Dunne and she said she was not good at English. This witness denies abusive and racist remarks allegedly made by him concerning immigrants or foreigners and pointed to the fact that his present partner is Lithuanian.
33. This witness said he waited for the Gardaí to come and he was standing at the back wheel to toe to measure distance, and that he told the garda what distance he had been out from the kerb and the garda asked him to move his car into Greenwood Road.
34. This witness saw the plaintiff’s car in his mirror but he had no concern. He was coming out of the junction and he saw the plaintiff’s car for a considerable period prior to the accident. This witness was adamant that he did check his mirror and denied never having looked in his mirror prior to the right hand manoeuvre.
35. Mr. Dunne said the plaintiff’s car glanced off his car and he said that Mr. McDonald’s car was coming out of the junction and that he himself was stopped and that the plaintiff banged into him. The defendant’s case was that he was in second gear as he approached Greenwood Estate and that the plaintiff attempted to overtake at the last moment and he collided with her vehicle.
Vincent McDonald
36. Mr. McDonald, a witness to the accident, gave evidence on behalf of the defence. He said he knew Mr. Dunne for over 40 years. He admitted that the junction was a dangerous one, and that he saw a car opposite on the wrong side of the road and that he reversed back and that his indicator was on the parallel white line ready to turn right when he reversed back. Mr. McDonald said that he was unable for the Gardaí as he was doing a school run. Mr. Dunne was making a right turn, and Mr. McDonald was looking at him when the collision occurred. He said there was nothing coming from the right there were no cars at all. He also said that there was nothing to stop the plaintiff going straight ahead but that she was going too fast.
Garda Ivan Kinnane
37. Garda Ivan Kinnane was the Garda on duty on this day and received a call about the accident. He gave evidence that when he arrived at the scene of the accident there was a blue car on the left lane of the road, slightly moved to the right and very near the white lines in the middle of the road and that the silver Opel was parked to the right side of the road 20 to 30 metres further down the road. He checked to see if the parties were injured. Mr. Dunne informed the Garda that he had indicated into Greenwood Estate, and had stopped the car in order to complete the turning manoeuvre but was slightly at an angle going in towards Greenwood.
38. Garda Kinnane said the plaintiff and Ms. Dumskyte said they saw the other car but that they did not see the indicator and that the driver’s eyes were blinded by the sun but this was never put to the plaintiff. This garda said that the plaintiff admitted liability at the scene, but this was never put to the plaintiff. The Garda took it as an admission of liability because he said the plaintiff had said the sun had blinded her and he confirmed that on the 12th December, 2018 there was guilty plea and a fine against the plaintiff for €100 for undue care and attention and that the case was then put back to get a Russian interpreter.
39. Under cross-examination the Garda agreed that the plaintiff had to travel from Navan to Tullamore twice to the District Court and that at Court she had no solicitor and that that Russian was not her first language. The plea came late on the second day with a €100 fine and the time was extended for leave to appeal this conviction. This witness said that it was her passenger who had indicated that the plaintiff may have been blinded by the sun and he said the defendant’s car was turning right and he agreed that there was no damage to the front of the vehicle.
Medical evidence
Mr. J K Nasser
40. Mr. Nasser, a Consultant Orthopaedic Surgeon noted that the plaintiff suffered neck pain, upper back pain and lower back pain and her General Practitioner had prescribed on 28th November, 2016, non-steroidal anti-inflammatory painkillers and local non-steroidal anti-inflammatory gel and a sleeping tablet. The plaintiff had made five visits to her General Practitioner.
41. The plaintiff had eight sessions of physiotherapy at that stage for her lower back. She attended a Dr. Michael O’Cuill, Consultant Psychiatrist who reported on her on 11th May, 2018. He noted that she suffered from post-traumatic stress reaction but that her symptoms had improved, and also that she had also suffered from phobic anxiety and that these symptoms should improve in time.
42. As of January, 2017 Mr. Nasser found the plaintiff to have intermittent neck pain radiating down to the left shoulder joint. The plaintiff had indicated at that stage difficulty in bed at night and having to sleep on the right side. She confirmed that she had improved by more than 60% since the accident with the help of physiotherapy. Her upper back had improved and her lower back was still bothersome if she sat for long or walked for long. Her low back symptoms have improved by more than 40% since the accident.
43. As of the 31st October, 2018 the plaintiff pointed to pain over the left trapezius muscle. This witness found forward flexion of 25 degrees with the full range being 35 degrees of the cervical spine and extension is 25 degrees where the full range would be 35 degrees. He found rotations to the right and left 50 degrees respectively where the full range would be 70 degrees and lateral flexion was 20 degrees to the right and left respectively where the full range would be 30 degrees. He found a full range of motion of both shoulder joints with no localising neurological signs in the plaintiff’s upper limbs.
44. On examination by Mr. Nasser of the thoracic lumbar spine the plaintiff pointed to pain over the disc space at L5 S1 level. He found that the sacroiliac joints were non-tender on stress.
45. In the opinion of this surgeon she had clinical and radiological evidence indicating that she had suffered a mild to moderate whiplash injury to the cervical spine in keeping with a soft tissue injury. He found tenderness over the left trapezius muscle but otherwise good functional range of the cervical spine and no localising neurological signs in her upper limbs. Future treatment regarding the neck remains conservative. Mr. Nasser hoped that the plaintiff’s neck symptoms should continue to improve and hopefully resolve over the coming six months’ time. This report found that the plaintiff’s upper back difficulties had resolved but that the Plaintiff had tenderness over the L5 S1 level, yet had good functional range of the motion of her lumbar sacral spine.
Dr. Michael O’Cuill
46. In his report Dr. Michael O’Cuill, Consultant Psychiatrist, noted on 11th May, 2018 the plaintiff’s recollection to him that she had twisted her neck and banged her right elbow against the door window when this accident occurred. The plaintiff also experienced soreness to the chest when she was restrained by her seatbelt especially as she had an implant cardiac defibrillator.
47. This witness indicated to her doctor that she was irritable at times and easily startled recalling the accident. Her sleep was disturbed and hypnotic medication helped this.
48. The main complaint this plaintiff had for the psychiatrist was that she had stopped driving for several months due to feeling terrified at the prospect of driving and that while she has resumed driving she remains very anxious and hesitant saying that she feels unsafe when in a motor vehicle.
49. The plaintiff suffered because she had previously transported her grandchildren to and from school daily but became overly concerned about this and was therefore no longer able to do this. The plaintiff also developed difficulties with her friends when she declined to drive them and they could not understand why she would not carry out this task.
50. In summary this doctor found that the plaintiff experienced symptoms typical of post-traumatic stress disorder. He relates this entirely due to (and believes it to be an understandable reaction to) the accident. He found these symptoms to be in the mild range of severity and to have improved with the passage of time. Features of this anxiety included reminders of the accident, avoiding reminders of same, experiencing intrusive recollections, sleep disturbance, feeling generally anxious and on edge, experiencing physical symptoms of anxiety such as palpitations shortness of breath and butterflies in her stomach, irritability and being easily startled and impaired concentration. This doctor found that the patient is likely to continue to experience a degree of phobic anxiety associated with driving for at least of couple of years if not longer. He found however that she shouldn’t experience long term psychological sequelae as a result of this accident.
Dr. Christine Sinton
51. The plaintiff’s G.P. Dr. Sinton prepared a reported dated 25th January, 2017 wherein she noted soft tissue injuries to the plaintiff’s neck, shoulders and lower back as a result of the accident as well as the anxiety already referred to above and sleep difficulties already referred to.
Mr. Aidan Gleeson
52. The defendants referred to two medical reports of Mr. Aidan Gleeson Consultant in Emergency Medicine dated 16th August, 2017 and 20th February, 2019.
53. This doctor noted that the plaintiff did not drive for six months as a result of the anxiety after the accident and while she did not need to be referred for counselling she did require the use of sleeping tablets and had higher than normal blood pressure after the accident requiring alteration of medication.
54. The second examination this doctor found the rotation of her head and neck to the right as 75% of normal and causes some discomfort on the left side of her neck and that rotation of her head and neck to the left is similarly restricted but not painful and that she complained of tenderness over the mid to lower left cervical para-cervical muscle.
55. The plaintiff at that stage had low grade complaints relating to her neck which this doctor thought were not a cause for clinical concern and that she has improved as an anxious driver over the last eighteen months and this would improve further.
Findings of fact
56. While this was a heavily contested court hearing, this Court prefers the plaintiff’s version of events to that of the defendant. Her reportage of same is borne out by the physical evidence visible on the two motor vehicles and given that the damage to her vehicle was on the front wing and passenger side door, this Court accepts the front of her vehicle had already passed the front of the third party vehicle prior to the impact and that this impact occurred when the third party vehicle moved onto the road without yielding to her vehicle which was already lawfully present on the highway.
57. This accident was reasonably foreseeable and on the balance of probabilities the plaintiff’s version represents the correct version as to what occurred and the court rejects the defendant’s version of events as less credible.
58. The Court was particularly impressed by the report of Mr. Burke, who upon examination of the locus, the damage to both vehicles and the overall road conditions found that there was nothing the plaintiff could have done to avoid the accident. The Court accepts this proposition on the balance of probabilities.
59. Liability therefore rests with the defendant and there is no issue of contributory negligence in all the circumstances.
Amount of damages to be awarded
60. In terms of quantum the plaintiff suffered mainly an injury to the neck which is still causing her some difficulties. She had difficulty to a lesser extent with her back but does not see that as the focus of her claim. She suffered anxiety and has suffered a loss of the amenities of life between six months and one year when she could not drive following this accident and she remains quite anxious around the issue of driving a motor vehicle.
61. This represents a significant loss of amenity to the plaintiff because prior to the accident she had been obliging her daughter by driving the grandchildren to school and can no longer either do that or give people lifts which causes difficulties for family and friends who cannot understand her reluctance to assist.
62. The judgment of Irvine J., in Shannon v O’Sullivan [2016] IECA 93, at para. 43 is particularly instructive when considering quantum and the amount of an award to grant to a plaintiff. Irvine J. held that:
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?”
63. It is important to recognise that the plaintiff has undergone significant loss of the amenities of life, and the relationship with her daughter, grandchildren and friends has been appreciably impacted in that the plaintiff struggles to drive and to give lifts as she did prior to the accident. The plaintiff also required medication to treat pain for her injuries from the accident and medication to help her sleep. The plaintiff suffered quite seriously from anxiety following the accident which has interfered with her life.
Conclusion
64. The appropriate award therefore in all the circumstances, and particularly having regard to the Book of Quantum is €65,000 plus items of special damage. Items
of special damage are to include damage to her motor vehicle €813.01 plus VAT giving a total of €1,000, physiotherapy bills €630 to date with a further outstanding bill of €540 given a total of €2,170.
Edward O’Riordan v Clare County Council and Response Engineering Limited
2015 9346 P
High Court
21 May 2019
unreported
[2019] IEHC 330
Mr. Justice David Barniville
May 21, 2019
JUDGMENT
Introduction
1. On Sunday 3rd August, 2014 in the late morning or early afternoon, the plaintiff, who was then aged 64 years, and living locally in Shannon, was out for a leisurely cycle on a bicycle his adult children had purchased for him about three years previously in anticipation of his pending retirement at age 65. It was a fine summer’s day and the plaintiff having set out in a particular direction from his home in Shannon decided to change course and to head on his bicycle towards an area outside Shannon known as Clonmoney South, which was well known in the locality as a beauty spot frequented by generations of families from the area and by walkers, runners and cyclists of varying ages and abilities. The plaintiff proceeded down the public road at Clonmoney South which in addition to being a public road is also under the ownership of the first defendant, Clare County Council (the “Council”). The road is known locally by some as the “Diamond Road” (as the diamond company, DeBeers, operates or operated a facility at the end of the road). The road leads to a waste water treatment plant operated by the second defendant, Response Engineering Ltd (“Response”), and a cul-de-sac at the end of the road. As the plaintiff attempted to negotiate his bicycle over a cattle grid which had been constructed or installed on the road, he fell from his bicycle suffering a very serious injury to his left ankle which has left the plaintiff with permanent damage to the ankle and requiring a fusion of the ankle or a replacement of the ankle joint. The cause of and responsibility for the plaintiff’s fall and consequent serious injuries are at the heart of this case which was heard by me in the High Court in Limerick over five days in February 2019.
2. While the facts of the case are relatively straightforward, the case gave rise to a number of difficult legal issues on which counsel made very helpful oral legal submissions and provided me with numerous cases in support of their respective positions at the conclusion of the evidence. The legal issues required careful consideration. Having done so, I have concluded that for the reasons set out in this judgment, the plaintiff is entitled to succeed in his case against the Council in negligence and nuisance. It has not been necessary for me to resolve other difficult legal issues which arise under the Occupiers’ Liability Act, 1995 (the “1995 Act”) or under the Roads Act, 1993 (as amended) (the “1993 Act (as amended)”). I have also concluded that the plaintiff must bear some responsibility for the accident and I have concluded that the plaintiff is guilty of contributory negligence to the extent of 25%. Having regard to the very serious injuries sustained by the plaintiff and the impact of those injuries on him, I have assessed general damages for pain and suffering to date at €95,000 and into the future at €45,000 giving a total for general damages in the sum of the €140,000. Special damages were agreed at €11,206.50. Taking account of the plaintiff’s contributory negligence, there will, therefore, be an award in favour of the plaintiff of €113,404.87.
Structure of judgment
3. I will adopt the following structure in this judgment. First, I will provide a summary of the plaintiff’s claim against the Council and the Council’s defence to that claim. I will then consider the liability issues, outlining first the evidence and then my findings of fact in relation to liability. I will then consider the legal issues which arise before setting out my conclusions on those legal issues and on the liability issue. I will then proceed to consider the question of quantum, looking first at the evidence relating to quantum and then the relevant legal principles applicable to quantum before setting out my conclusions on quantum. I will then summarise my overall conclusions and the award which I propose making.
Summary of claim and defence
4. In summary, the plaintiff contends that his fall and consequent injuries were caused by the negligence, nuisance and breach of statutory duty on the part of the Council and/or Response, their respective servants or agents, by reason, principally, of the condition of the cattle grid where the plaintiff fell and, in particular, by reason of the state of the concrete area surrounding the grid. The plaintiff claims that the state of the concrete surround (or “ramp” or “dome” as it was described on behalf of the plaintiff) was such that there was a rise and then a sudden drop from the concrete surround onto the metal bars of the grid which was unexpected and caused the plaintiff to lose control of his bicycle as he proceeded cautiously from the paved surface of the roadway over the concrete surround or ramp and onto the start of the metal bars of the cattle grid itself. The plaintiff claims that the Council and/or Response, their respective servants or agents, were responsible for the condition of the concrete surrounding the grid and the grid itself and that it was caused to be in the condition it was in at the time of the accident with a drop of about one inch (25mm) from the concrete surround or ramp onto the first of the metal bars of the grid as a result of the defective and negligent design, construction and installation of the grid and, in particular, the concrete surrounding it. In the alternative, the plaintiff claims that the concrete surround or ramp immediately before the grid which led to a sudden drop of the type referred to amounted to a danger to the users of the public roadway and, therefore, a public nuisance. The plaintiff advanced additional claims under the 1995 Act to the effect that he was either a “visitor” or a “recreational user” within the meaning of those terms in the 1995 Act and that the Council/Response are liable to him under the relevant provisions of that legislation. Additional or alternative claims were advanced (but not really pursued with any vigour) under the 1993 Act (as amended).
5. The proceedings were defended by the Council on its own behalf and on behalf of Response and it is appropriate, therefore, to refer only to the Council in terms of the liability and other issues in the case. The Council denies liability under each of the heads of claim advanced by the plaintiff. The Council rejects the contention that the concrete surround was or could properly be classified as a “ramp” or that it posed a danger to the users of the road, such as the plaintiff. The Council contends that the plaintiff ought not to have had any difficulty in negotiating the cattle grid on his bicycle and that, if he felt that there was any difficulty in doing so, he should have dismounted his bicycle prior to the cattle grid and walked around the cattle grid through a gap between a pillar and a number of boulders to the left side of the pillar. The Council disputes the description of the accident given by the plaintiff and contends that it must have occurred in some other way to that described by the plaintiff. On the legal issues, the Council contends that in its capacity as the highway authority or road authority it could have no liability to the plaintiff in negligence having regard to the doctrine of nonfeasance. The Council asserts that it took over the road in question including the cattle grid and its concrete surround from Shannon Development when it took a transfer of assets of Shannon Development including roads, footpaths, open spaces, waste water treatment plants, pumping stations, storm and foul water systems and other assets in 2004. It did not carry out any works to the roadway in question and, in particular, to the cattle grid and concrete surround following its acquisition in 2004 or subsequent to its designation of the road as a public road in 2011. It claims, therefore, to be entitled to rely on the doctrine of nonfeasance. In response to the claim in nuisance, the Council claims that it can have no liability by reason of its status as the highway or road authority and that as the cattle grid and concrete surround is not a danger to the public and was not installed by the Council, it can have no liability to the plaintiff in nuisance. As regards the claim under the 1995 Act, the Council contends that in the event that the 1995 Act has any application, the plaintiff was a “recreational user” and that having regard to the duty owed by an occupier towards a recreational user of premises not to injure the person intentionally and not to act with reckless disregard for the person, the Council can have no liability to the plaintiff under the 1995 Act. Further, the Council relies on the duty on a person using a public road to take reasonable care for his or her own safety and to take all reasonable measures to avoid injury to himself as well as the duties at common law in order to defeat the plaintiff’s claim or, alternatively, to support a finding of contributory negligence against the plaintiff.
6. In brief response, with regard to the negligence claim, it is contended on behalf of the plaintiff that his claim is for misfeasance and not nonfeasance by reason of the defective and negligent construction of the concrete surround or ramp at the cattle grid and that the Council must bear responsibility for the negligence of its predecessors in title. With regard to the nuisance claim, it is contended that the Council is liable for maintaining the nuisance created by its predecessor in title from whom the Council acquired the road and cattle grid and that it cannot escape responsibility by reason of the fact that the cattle grid and its concrete surround or ramp constituted a danger to those using the road by reason of the fact that its predecessor in title constructed or installed the grid and its concrete surrounds.
A. Liability
The evidence: liability
(1) The Plaintiff’s Evidence
7. On the plaintiff’s side, the witnesses called on behalf of the plaintiff on the question of liability were (a) the plaintiff himself, (b) Inspector Tom Kennedy of An Garda Síochána, (c) Mr. Gerry McIntyre and (d) the plaintiff’s consulting engineer, Mr. Michael Flynn.
(a) The Plaintiff
8. The plaintiff gave evidence as to his personal circumstances. He was born on 13th May, 1950 and is a married man with three adult children. The plaintiff was employed as an accountant in the finance department of the HSE in Co. Clare and retired on 13th May, 2015, on his 65th birthday. This was after the accident the subject of the proceedings. The plaintiff lives with his wife in Shannon, Co. Clare. He explained that about three years before the accident, his three adult children clubbed together and bought him a bicycle with the intention that he would take up cycling in anticipation of and following his retirement. The bicycle was a Falcon Shadow Terrain mountain bike. Photographs of the bicycle were attached to the report of the Council’s consulting engineer, Mr. Brendan Twomey. The bicycle is in the mountain bike style, with the wide wheels and tyres characteristic of that style of bicycle and with enhanced suspension at the front and rear wheels. In the two years or so prior to his accident the plaintiff would go for a bicycle ride about two or three times per week, normally for about ten miles (16 km). The plaintiff explained that on Sunday 3rd August, 2014 he decided to go out for a cycle in the late morning. It was a lovely August day. The plaintiff left his house and was cycling for about half an hour when he decided he would alter his course and instead head towards the road at Clonmoney South. He was familiar with the area since the early 1960’s and explained that it was a place where families and other people from the locality of Shannon would go during fine weather as it was close to the Shannon Estuary and about fifteen minutes walk from Shannon town. There is a good view of the Shannon River Estuary and the mountains in the distance from the road. At the end of the road there is a water treatment plant which is now operated by Response. There is also a facility on the road owned by DeBeers. I interject here by noting the fact that it is agreed that the road came into the ownership of the Council in 2004 when it was transferred with other assets to the Council by Shannon Development. It is also agreed that the road is a public road. The Council’s evidence was that it was so designated in 2011 albeit that the mechanism by which it was designated was not clarified or explained in evidence. The road is classified as a local tertiary road and was given the number L73481 in 2011 by the Council as the relevant road authority.
9. The plaintiff explained that he entered the road from the top and proceeded down the road at a “ leisurely ” pace. He encountered a gateway and cattle grid (being the first of a number of cattle grids on the road). There were pillars on either side of the gateway and cattle grid and a gate which was open. There was subsequent evidence that the gate remained open at all times and indeed the only person that ever saw the gate closed was the Council’s consulting engineer, Mr. Twomey. As of the date of the accident, there was a sign on the left hand pillar containing the words “ Private Road: Access to Authorised Personnel Only: This gate may be locked at any time ”. There was a gap to the left of the left hand pillar, between the pillar and a series of boulders. The plaintiff explained that as he entered onto the cattle grid on his bicycle, the front of the bicycle dipped down dramatically and in an unexpected fashion causing him to lose control of the bicycle. The plaintiff fell to the left and the bicycle to the right. The plaintiff attempted to save himself with his left foot and described his ankle as being crushed in the fall. He fell onto the metal or steel bars of the cattle grid towards the left of the grid. He explained how he fell by reference to a series of photographs taken by the plaintiff’s consulting engineer, Mr. Flynn on 17th June, 2015. Mr. Flynn’s photograph 1 showed the sightline which the plaintiff had as he approached the gate and cattle grid. Photograph 2 is a photograph taken from the same direction but closer to the gate and cattle grid. The plaintiff indicated that he was cycling towards the left side of the grid. It is Photographs 5 and 6 were taken from the far side of the cattle grid towards the direction from which the plaintiff was travelling. Photograph 7 is a close up of the sign on the left hand pillar and the gap between the pillar and one of a number of boulders. The plaintiff explained that the sign was always there and that the gate was never closed as far as he was concerned.
10. The plaintiff was assisted by a member of the local model aircraft club which operated close by. He had suffered a serious injury to his left ankle and was weak and in a lot of pain. The man telephoned the plaintiff’s wife and the ambulance. Both came without delay. The plaintiff was taken to University Hospital Limerick where he was initially seen in the Emergency Department, treated for his pain and operated on the following day for a very serious fracture of his left ankle. I will return to the plaintiff’s injuries and the effect they had on the plaintiff later in the judgment. Suffice to say at this stage that the plaintiff continues to suffer from the effects of the injuries he sustained in the accident.
11. The plaintiff was extensively (but appropriately and courteously) cross examined on behalf of the Council. He was challenged over the circumstances and mechanism of his fall. It was put to him that the account given by him of the circumstances of the accident differed in the various descriptions given by the plaintiff such as in his application to the Personal Injuries Assessment Board, in his personal injury summons, in the report of Mr. Byrne, his consulting engineer, and in the hospital notes. The plaintiff was entirely consistent in the evidence which he gave in relation to the circumstances of his fall. He consistently explained in his direct evidence and under cross examination, that as he was cycling towards the grid and over the concrete surround or ramp, his bicycle dropped or dipped “ dramatically ” and in a sudden and “ unexpected ” fashion causing him to lose control and fall on the cattle grid. I am satisfied that there is nothing in the plaintiff’s application to the Personal Injuries Assessment Board (which stated, at para. 5, that as he was cycling over the cattle grid, he was caused to come off his bicycle and hit the ground violently), in his personal injury summons (which stated that he was caused to be thrown off his bicycle by reason of a “ sudden drop at or on approach to a cattle grid on the …roadway” ) or in the report of Mr. Flynn (which recorded the plaintiff’s account of the accident as being that “ having left the concrete surface of the roadway onto the metal cattle grid area, there was a sudden drop which caused the front wheel of his bicycle to drop down causing him to lose his balance, fall forward and receive personal injuries ”) which was inconsistent with the evidence the plaintiff gave in evidence. Any minor differences were, in my view, completely insignificant.
12. There was a difference between what was recorded concerning the circumstances of the accident in the case notes in the Emergency Department of the Hospital where it is suggested that while cycling his bicycle over a “ cow grate ”, the tyres “ got stuck ” and the plaintiff fell from his bicycle and suffered a “ twisting injury to the left ankle ”. The plaintiff disagreed with that recorded account of the accident and noted that the record was entered by a member of staff at the hospital at 19:40 on the evening of his accident. The plaintiff disagreed that the record accurately described how the accident occurred and was not in a position to explain how the staff member had interpreted the circumstances of the fall in that way. The hospital staff member was not called to give evidence to explain the circumstances in which the information recorded in the case was taken from the plaintiff and, specifically the condition of the plaintiff when the account of the accident was given by him. The plaintiff said in evidence that by that stage he had been given “ copious amounts of morphine ”. I do not believe that there is any significance to the slight difference between the account given by the plaintiff in evidence and what was recorded in the case notes in the hospital. I am satisfied that the account of the accident given by the plaintiff in the other documents to which reference was made by the Council is entirely consistent with the evidence which the plaintiff gave in his direct evidence and under cross examination.
13. The plaintiff accepted under cross examination that he had cycled down the road once before and had cycled over the cattle grid without any difficulty. He accepted that he knew the cattle grid was there.
14. It was suggested to him that he should have dismounted from his bicycle before negotiating the cattle grid, or at least should have slowed down. In response, however, the plaintiff explained that he was proceeding with “ tremendous caution ” and that he was a “ cautious man ”. He stated that he was proceeding at a “ leisurely pace ” and mentioned that he was proceeding at approximately walking pace. He slowed down before approaching the cattle grid. He said that he had taught his children how to ride bicycles and was riding this bicycle very carefully. When, somewhat inconsistently with previous questions, it was put to the plaintiff that he may have fallen because he was going too slowly, the plaintiff rejected that suggestion. He explained that he approached the cattle grid on the assumption that he could navigate it properly on his bicycle. He decided that he did not need to dismount from his bicycle as he assumed that the terrain ahead was safe to cycle over on the basis of what he could see. He could see that there was a cattle grid but did not see the drop from the concrete surround or ramp onto the metal bars of the grid until it was too late. He confirmed that as he entered onto the cattle grid, the front of his bicycle dipped dramatically and in an unexpected fashion causing him to lose control and fall. He reiterated his explanation that as he fell, the bicycle went to his right and frame of his body went to the left and that he came down heavily on his left ankle. He confirmed that his bicycle did not skid and stated that he was going very slowly and had come down in the gears on his bicycle as he approached the cattle grid. The plaintiff rejected the suggestion that he had either driven too quickly or too slowly over the cattle grid. While he had cycled over the grid, on one previous occasion, he had not experienced the sort of sudden and dramatic drop which he had on this occasion. He rejected the suggestion put to him on behalf of the Council that the accident could not have occurred in the manner in which he described and that his bicycle had not slid or slipped on the metal bar as was suggested by the Council’s engineer. He did not agree that the front wheel of his bike had gone down between the metal bars of the grid and that that had caused him to fall. It was put to him that if he had dismounted from his bicycle and walked through the gap between the left hand gate pillar and the boulders, the accident would not have happened. However, it was also put to him as part of the same sequence of questions that many people had been able to cycle over the cattle grid without any difficulty at all. It was not, therefore, really suggested to the plaintiff that it was not appropriate for him to cycle over the cattle grid and that it was absolutely necessary for him to walk his bike through the gap between the left pillar and the boulder. I assume that the Council backed off taking the absolute position that the plaintiff ought to have dismounted and walked his bicycle through the narrow gap in light of the significant evidence available that people did regularly cycle over the cattle grid.
(b) Inspector Kennedy
15. The next witness who gave evidence on behalf of the plaintiff was Inspector Tom Kennedy who was stationed in the Shannon area for more than 23 years, 20 of them as inspector. He was familiar with the road on which the plaintiff had his accident and confirmed that the road served as an amenity for the people of Shannon over the years attracting walkers (with or without dogs) and cyclists because of its sylvan setting and Estuary views. He confirmed that he himself had met walkers and cyclists on the road and that he could see no impediment to people using the road. He accepted that there was a sign on the left pillar (as described earlier) but it was noted that it was quite obstructed with peeling paintwork. Inspector Kennedy had not taken any notice of that sign before and that he had not realised that there was a gate there and had never seen it closed. He understood that the road served as a public amenity to which members of the public had access. While he had met cyclists on the road, he had not himself seen them cycling over the grid.
(c) Gerry McIntyre
16. The next witness to give evidence on behalf of the plaintiff was Mr. Gerry McIntyre. He is a physiotherapist by occupation and a member of a local cycling club. He grew up in the Shannon area and became very familiar with the road over the years. He himself regularly runs, walks and cycles on the road in both winter and summer. He explained that this could be four or five times per week. He described it as a “leisure area” for the people of Shannon. He cycled his bicycle down the road, mainly in the summer months. He cycled over the cattle grid and not dismounting. He did not have the difficulty in doing so. He was unaware that there was a gate at the cattle grid.
(d) Michael Flynn
17. Mr. Flynn, the plaintiff’s consulting engineer, then gave evidence. He went through the photographs he had taken. Photographs 1 — 7 were taken at the time of Mr. Flynn’s inspection at the locus of the accident on 17th June, 2015. Photographs 8, 9 and 10 were taken in the days preceding the hearing in February 2019.
18. In his report, Mr. Flynn described the grid and its dimensions (3.8 m wide x 1.35m long). On approach to the cattle grid he explained that there is 500mm of concrete on each side of the grid with a large pothole just before the concrete on the side from which the plaintiff was travelling. There is a drop between the concrete and the steel bars of approximately 1 inch (25mm) and 1¼ inch (32mm) (from the concrete onto the metal bar) which he stated would not have been visible to a cyclist on approach (from the plaintiff’s direction). The report then described the left hand pillar or pier of the gate which was some 400mm x 400mm with a 500mm gap between the pillar and a boulder (to the left) which he stated “ may be suitable for pedestrians to walk slowly through …” but would not be suitable for a cyclist as both the width of the gap and also the condition of the ground would not be suitable for a bicycle. He stated in the report that a drop of 1 inch (25mm) and 1¼ inch (32mm) down from the concrete on to the metal bars would not have been clearly visible to the plaintiff as he approached the grid and that it would be considered a “ hidden trap or a hazard ”. He also stated in the report that there was little evidence of maintenance in the area of the cattle grid as grass was growing through the grid and large potholes were evident on both sides of the grid. He concluded his report by stating that the condition of the cattle grid and particularly having regard to the drop between the concrete surround and the metal bars would be a potential hazard as the drop of 1≪ inches (sic) would cause a cyclist to lose his or her balance and fall. His opinion was that the concrete surround area should have been maintained or a suitable passing area should have been provided for pedestrians and cyclists. Further he stated in the report that instruction could have been given to cyclists to dismount prior to crossing the cattle grid.
19. When asked in his direct evidence about the purpose of the concrete surround or “ ramp ” or “ dome ”, as it was variously called on behalf of the plaintiff, Mr. Flynn stated that he could not understand why it was there. The cattle grid itself was visible to users of the road and he also noted that there are other grids on the road (Mr. Flynn said there are two others and Mr. Twomey on behalf of the Council said there are three) which do not have this concrete surround or ramp or dome. He described the concrete surround as creating a hump which comes down onto the cattle grid itself. It was an “ unusual feature ”. If it was intended to be a speed bump he would have expected it to be placed remotely from the cattle grid and also that it would have been highlighted like speed bumps in carparks. The purpose of highlighting it would be to give an early warning to users of the road of this change or rise and fall in the level of the roadway. He explained that the concrete surround effectively creates and accentuates a drop on to the cattle grid. In terms of its installation, his opinion was that the dome of concrete was installed and poured over the steel bars and demonstrated this by reference to his photograph 6 which he stated showed that the concrete had been poured onto the first steel or metal section of the grid and that that portion of concrete had been broken off when cars travelled over it. He explained that the concrete should have been tapered down and should not have left an edge or lip created by the concrete breaking up with vehicles travelling over it. He also demonstrated this “ lip ” and what he called a “ sheer edge ” by reference to his photograph 10 (taken in the days prior to the hearing) which he said clearly demonstrated that the concrete had broken away where it had been laid over the metal bar of the grid. He further demonstrated this “lip” or “sheer edge” by reference to a €2 coin which he said demonstrated a drop of approximately 1 inch (25mm) from the concrete on to the first of the metal bars of the grid which he described as a “ sudden drop”.
20. His evidence was that there were a number of defects in the manner which the concrete surround or ramp or dome was installed. The first was that the concrete was poured over the first of the metal bars of the grid which made it inevitable that the concrete would break up with vehicles travelling over it, creating the lip or drop referred to. Second, it should have been set back from the grid creating a distance between the concrete surround and the grid itself. Third, if its purpose was as a speed ramp, it ought to have been highlighted.
21. He explained by reference to the plaintiff’s account of the accident given to him (which is consistent with the plaintiff’s evidence at the hearing) that the plaintiff approached the cattle grid to the left of the centre of the grid and concrete surround, being where the 1 inch drop existed and that the plaintiff would not have seen that drop on his approach. He explained this by reference to his photographs 2, 3 & 4. He also stated that he had never seen such a concrete edge or surround like this in other grids. In commenting on Mr. Twomey’s photographs, he described the area as being not as overgrown when Mr. Twomey photographed it (in March 2016). He also expressed a view that the gap between the left hand pillar and the boulder (approximately 500mm) was not wide enough to enable cyclists to walk side by side with his or her bicycle and that the bicycle would have to be thrown or pushed ahead of the cyclist. If it had been intended that this was to be the route to be taken by cyclists, he would have expected that it would have been of sufficient width and also that there would have been some signage requesting cyclists to dismount and to use the gap to the left to get past the cattle grid.
22. Under cross-examination, Mr. Flynn accepted that the area was not a specially designated amenity area but stated that it was, and is, used as an amenity for people within the locality. He agreed that the road had been acquired by the Council in 2004 from Shannon Development and that it had also been taken in charge by the Council as a public road. It was put to him that the cattle grid in question was present when the Council took it over in 2004 and that the Council had done no works to it since then. Mr. Flynn explained that in his view the concrete surround or dome was installed after the cattle grid but he could not say when it was done. At that stage there was some uncertainty as to whether the Council owned the road. However, it was subsequently clarified that the Council does own the road and also designated the road as a public road. Mr. Flynn’s evidence was that if the Council took over the road, there was an onus upon it to ensure that it did not contain a feature or features which posed a risk to users of the road. When it was pointed out to him that Mr. Twomey did not accept that there was a “ sheer drop ” or that the concrete had been poured onto the metal bar of the cattle grid, Mr. Flynn disagreed and again referred to his photograph 6 (taken at the time of his inspection in June 2015) and his photograph 8 which he said demonstrated the concrete covering the first of the bars of the cattle grid and that the concrete had broken away at that point. When it was put to him that Mr. Twomey’s view was that this was merely a “ deflection ” and not a “ drop ”, Mr. Flynn strongly disagreed stating that one would not expect a deflection of 1 inch (25mm). He reiterated that, in his view, if a dome was installed at the cattle grid, it should have been tapered down so as to ensure no leading edge or drop. In contrast to a pothole where a cyclist could prepare himself or herself for a change in road level, the plaintiff was unable to do so here as he was faced with a sudden drop for which he was unprepared. Mr. Flynn confirmed that the plaintiff had shown him that the route he had taken was over the left side of the concrete surround and of the cattle grid which was where the 25mm/1-inch drop was present. Mr. Flynn clarified the dimensions of the concrete dome or surround by indicating that the height from the top of the concrete surround to the metal bar was in total 2¾ inches (70mm) with the last 25mm (1 inch) being the drop from the concrete onto the metal. Mr. Flynn stressed the fact that this drop was unexpected and could not be seen by an approaching cyclist who would not therefore be in a position to prepare himself or herself for the drop. He also explained that the concrete surround had “ all the characteristics ” of a speed ramp or bump. When it was put to him that the concrete surround could have been installed in order to prevent water getting into the cattle grid, Mr. Flynn did not agree stating that if that had been its intention, he would have expected the surround to have be of uniform height across all sides of the cattle grid. Mr. Flynn also explained that he himself had felt the impact of the drop when driving across the cattle grid in his car. He experienced a rise and they a clunking sound as the car passed over the concrete surround and onto the cattle grid. He did so to stress the impact of the drop and to demonstrate how that would have been experienced by a person cycling over the ramp and on to the grid.
23. Mr. Flynn was satisfied that the accident could well have occurred in the way in which the plaintiff described it and rejected the alternatives posited on behalf of the Council (such as the front wheel of the bicycle being caught between the gaps in the metal bars of the grid, which he said would not have occurred unless the front wheel was perfectly parallel with the bars).
24. As regards the gap between the pillar and the boulder to the left of the cattle grid, he accepted that a cyclist could shove his or her bike through the gap but could not cycle through it. However, it was again not forcefully suggested to Mr. Flynn that cyclists ought to proceed through this gap as, almost in the same breath, it was put to Mr. Flynn that cyclists can cross the cattle grid without any problem (and reference was made to Mr. McIntyre’s evidence in that regard). Mr. Flynn explained that if cyclists cycled their bicycles over the centre of the grid then they would not experience the drop or lip which caused the plaintiff to fall. Mr. Flynn concluded by explaining that the cattle grid and its surround was an integral part of the road which posed a danger to users of the road such as the plaintiff who are unable to see the drop or the height of the ramp as they approach it.
(2) The Council’s evidence
25. The Council called four witnesses on the liability issue. They were:
(a) Mr. Michael Healy (an executive engineer with the Council),
(b) Mr. Eugene O’Shea (a retired senior executive engineer with the Council),
(c) Mr. Aidan O’Rourke (a senior executive engineer with the Council), and
(d) Mr. Brendan Twomey, a consulting engineer engaged by the Council.
(a) Michael Healy
26. Mr. Healy commenced working as an executive engineer with the Council in 1999 and still does. He worked in the Shannon area from 2004-2012. He explained that in 2004, the Council took over several assets and services from Shannon Development including the road which is the subject of these proceedings and the waste water treatment plant at the end of the road. He agreed that the Council was responsible for maintaining the road under the Road Acts. He confirmed that the cattle grid at which the plaintiff had his accident was there when the Council acquired the road in 2004 and that the Council carried out no work during his time with responsibility for the Shannon area (up to 2012). He further stated that the Council maintained a register of complaints and could not recall receiving any complaints in relation to the cattle grid and surrounding concrete area. He did not consider the concrete surround or ramp or dome to amount to a hazard to users of the road.
27. Under cross-examination, Mr. Healy confirmed that he was not involved in the transfer of the assets (including the road) from Shannon Development to the Council in 2004. He accepted that when assets were being transferred to or acquired by the Council (such as when it takes a housing estate in charge) it is normal that it would carry out an inspection or survey to assess whether there were any defects in the roads or other assets being transferred or taken in charge and, in the event that there were, the Council would go back to the developer and require those defects to be rectified before the estate or road was taken in charge. It would also be normal for a report to be prepared in respect of such an investigation. However, Mr. Healy was not in a position to confirm whether an inspection or survey was carried out or report prepared in respect of the transfer of the assets from Shannon Development to the Council as he was not involved. It was a very significant takeover of assets (one of the largest if not the largest transfer of assets in the history of the state). Mr. Healy believed that MCOS, Consulting Engineers were engaged by the Council at the time and did prepare reports although he did not believe that those reports dealt with cattle grids in general or the particular grid at issue. Mr. Healy confirmed that he had never come across a ramp beside or adjacent to a cattle grid although he was familiar with speed ramps on roads which would be marked or highlighted. These, he said, were totally different to the cattle grid in question. He did not believe that the purpose of the concrete surround was to act as a ramp and that it was “possibly” to divert water from the cattle grid. He accepted that the normal purpose of a ramp was to reduce speed by impeding the progress of vehicular traffic. He also accepted that ramps needed to be highlighted or signalled in advance. While disagreeing that the concrete surround was designed to act as a speed ramp, he agreed that if he had designed a ramp or other measure for traffic calming he would always have ensured that they were highlighted so as to warn people of their existence. It had never occurred to him that the concrete surround was in fact intended to act as a speed ramp and he described it as a “ concrete base ” or “ concrete reinstatement around a cattle grid ”. He thought its purpose may have been to secure the cattle grid in place although he could not answer what feature of the concrete surround led to his view that it was not a ramp. It did not strike him as a speed ramp although he accepted that there was a drop or, as he described it, a “ vertical difference ” between the concrete surround and the cattle grid. He said that it was not like any ramp which he had designed or installed during his time as an engineer. He confirmed that if it was a ramp, he would not have permitted it to be constructed or installed so close to the cattle grid and that if he had been designing it as a speed ramp, he would have located it some distance in advance of the grid although he stated that there was no real set distance specified. He would not have located it right beside the grid and confirmed that if it were a speed ramp (which he did not think it was), it ought to have been located at least one car length away from the grid. He also agreed that if he designed the cattle grid it would have been level and that he would not have allowed a drop in level of 25mm /1 inch to occur so as to avoid any possible lip or trip or fall hazard and to improve the “ ride-ability ” of the route for vehicles and bicycles.
28. Mr. Healy further confirmed that in the case of speed ramps (although he did not accept this was such) it is good practice to highlight them and to use signage. He further stated that he would not condone a drop of 25mm (1 inch) or see that as good practice in the case of a ramp. He then stated it was “ not desirable ” to have a drop of that type coming off a ramp. He could not answer the question as to why (if it be the case) the concrete feature at the cattle grid in question was not picked up in any report when the road was taken in charge (or the assets acquired).
29. On re-examination, Mr. Healy stated that he was unaware as to who had installed the cattle grid and that the Council had not carried out any works to it following the transfer. He further stated that the Design Manual for Roads and Bridges (DMRB) guidelines were only applicable to new roads and bridges and that this is not a new road. It is a local road providing access to the waste water treatment plant generally carrying local traffic only. On further questioning on behalf of the plaintiff, Mr. Healy was unable to answer at that stage whether the road was in the ownership of the Council as distinct from being a public road (that issue was subsequently clarified).
(b) Eugene O’Shea
30. The next witness for the Council was Mr. Eugene O’Shea (formerly a senior executive engineer with the Council with responsibility for the Shannon Municipal District (“SMD”)). Mr. O’Shea retired in 2018. He stated that the SMD contained at least 300 kilometres of roads comprising regional, local primary, local secondary and local tertiary roads. The road in question here is a local tertiary road which he described as being on the lowest rung of roads and which attracted the lowest priority in terms of the allocation of resources. He stated that he assumed that the road and cattle grid were constructed and installed by Shannon Development, but he was not certain of that. He was not aware as to who designed the cattle grid and was not aware of any works being done by the Council on the cattle grid.
31. Under cross-examination, he confirmed that the road was transferred as part of a transfer of assets from Shannon Development to the Council in September, 2014. He further confirmed that the road was both a public road and within the ownership of the Council and that, therefore, the Council was both the land owner and the road or highway authority in respect of the road and had duties in both capacities. He stated that the Council treated the road as it would any public road. He did not recall seeing any order designating the road as a public road.
32. He agreed that normally when a road is taken in charge, an assessment would be made of the state of the road and a report prepared. He was not aware as to whether any such assessment was carried out or report prepared referring to the road in question here. He stated that it was possible that such a report was done but noted that the transfer of assets was the largest transfer in the history of the State and included roads, footpaths, open spaces, waste water treatment plants, pumping stations and storm and foul water systems. He confirmed that he was aware that the road was used as a local amenity for the public and that he himself had availed of the amenity and had travelled the road for recreational purposes and for work. He confirmed that the Council was aware of the fact that the road was used by members of the public (along with all of the other public roads within the Shannon area). He confirmed that if an assessment or survey had been carried out and a report prepared, it would have looked at the condition of the road and considered issues such as whether the drainage system was functioning and whether the road surface was in good condition. It would also have considered whether there were any particular dangers or hazards on the road such as potholes. While not coming under the heading of a “risk assessment”, it would have a similar purpose. Such an assessment or survey would not necessarily have been carried out by someone walking the road and could have been done by means of a “windscreen” survey. If anything unusual had been picked up on such a survey, it would have been reported on. If such a report existed in respect of the road or cattle grid contained on it, he would expect that it would be in the Council’s archives. When asked whether anyone had checked the archives for the purpose of the case, he stated that he was not aware whether that had been done.
33. Mr. O’Shea confirmed that he was aware of the presence of the cattle grid on the road but was not aware of any particular risks associated with it. He had not noticed the 25mm/1 inch drop from the concrete surround or ramp onto the cattle grid (shown in photograph 6). He did not consider the concrete surround or structure to be a ramp. When asked if it was a ramp whether he would he accept that it should be highlighted, Mr. O’Shea agreed with Mr. Healy and confirmed that, if its purpose had been as a ramp and if it were newly constructed or installed, there would have been signage and it would possibly have been highlighted. He agreed that it would be a good idea to mark or highlight a ramp to signal a change in the surface or level of the road for cyclists and vehicles if one was aware that such a change or difference in level existed. He further confirmed that he was aware that cyclists cycled down the road, that some cycled over the cattle grid and some walked around the grid through the gap to the left of the gate pillar, although he then stated that he could not recall seeing people cycle over the cattle grid himself. He did not consider the drop from the concrete surround to the cattle gird as constituting a significant risk to someone cycling a bicycle of the type the plaintiff was cycling. He accepted that the structure of the concrete surround to the cattle grid was not “ run of the mill ” and was abnormal. He posited the possibility that the purpose of the concrete surround was to divert water away from the grid (although it was clear that he did not have any direct knowledge of this). He accepted that the drop from the concrete surround to the cattle grid created a “ lip ” and that if the Council was aware of this, it would consider highlighting it. When asked whether the Council was aware of it and whether anyone within the Council had looked at whether a report existed in relation to the condition of this cattle grid, Mr. O’Shea responded by referring to the large number of roads within the SMD area and made the point that this road was a low priority road and that resources were allocated by the Council depending upon the priority of the road. He did state that if the Council had received a complaint in relation to the condition of the road, it would endeavour to deal with that issue but that no such complaint had been received in respect of this cattle grid whether from the operators of the water treatment plant or from anyone else using the road. He further confirmed that there was no similar concrete surround or ramp at the other cattle grids on the road.
34. When asked whether a person carrying out an assessment of the road (such as prior to its transfer to the Council) would have noticed the concrete surround or ramp, Mr. O’Shea responded that it was possible that they might have but that he could not say. He further responded that it was possible that had someone noticed it that it would be possible to address the issue relatively inexpensively by signage or marking and that it would not significantly impact upon the Council’s budget. Mr. O’Shea accepted that it was not good practice to lay concrete over the metal bars of a cattle grid and that that would not be in accordance with current standards. However, he stated that it was not possible to go around with a microscope picking up every issue that may have existed in relation to the assets being transferred. He accepted that in an “ ideal world ”, somebody carrying out a survey or inspection of the road and preparing a report in respect of the road would have noticed the defective engineering at the cattle grid but made the obvious point that we do not live in an “ ideal world ” and that the transfer of assets had to be completed within a certain timeframe and could not “ go on forever ”. He was unable, however, to refer to any particular time constraints which existed, although he made the point that the transfer process went on over a number of years. He stated that he imagined that an assessment and report would probably have been carried out and that it should have been done but that he was not actually aware as to whether it had been done.
35. On re-examination, Mr. O’Shea stated that he was unaware that the cycling club was using the road but that no complaint had been made by anyone. He noted that many people used the road every day without complaint including members of the Gardaí, the fire service, owners of land down the road and members of the public. He felt that this cattle grid was not in any worse condition than others and posed no more of a risk than other grids.
(c) Brendan Twomey
36. The next witness to give evidence on behalf of the Council was the consulting engineer, Mr. Twomey. Mr. Twomey’s report was produced which appended the photographs taken by him in March 2016.
37. In his report, Mr. Twomey considered the cattle grid in question as well as the other cattle grids on the road (he identified three other grids whereas other witnesses referred only to two). He stated in the report that the other cattle grids were of the same construction as the cattle grid at issue and that they also had concrete bands on either side of the approaches. However, I observe that it is clear from all of the photographs that none of the other cattle grids had a concrete surround of the type present at the cattle grid at issue and none had the sort of drop which can be seen in photographs (particularly those of Mr. Flynn). Mr. Twomey noted in his report that the cattle grid is located on a public road which is frequented by leisure walkers and cyclists. He observed that there is nothing unusual about this particular grid and he could not locate the “ sudden drop ” about which the plaintiff was complaining. He reported that there was no reason why the plaintiff could not have walked around the cattle grid using the pathway (to the left of the left-hand pillar). While he was unable to inspect the bicycle, in his view this was an area in which an experienced cyclist ought to have been able to traverse (without difficulty). He stated there was no reason why the plaintiff could not have dismounted from his bicycle in advance of the cattle grid “ if he was not confident to pass over it ” and that there were “ adequate sight lines ” (leading up to the grid).
38. In his direct evidence, Mr. Twomey observed that the cattle grid in question is at a low point in the road and is preceded by a noticeable slope. He observed that the area is prone to flooding. He went through the dimensions of the cattle grid and the concrete band or surround which more or less accord with those given by Mr. Flynn on behalf of the plaintiff. He did not consider the concrete band or surround to be a “ ramp ” or “ speed bump” but merely a concrete band that defined the cattle grid. He accepted that he was unaware of the design function of the concrete surround but felt that it was probably to define the cattle grid itself. He felt that the gap between the left-hand pillar and the boulders (which he accepted was 500mm wide) was such as would enable a person to pass through with a bicycle and that the pathway at that point was worn and trodden, indicating that people used it. He accepted that people use the area as a recreational or amenity area, although it is not formally designated as such.
39. Mr. Twomey commented upon the bicycle being used by the plaintiff at the time of the accident and felt that it was a good sturdy bicycle with wheels of sufficient width such that it could manage the sort of drop seen in Mr. Flynn’s photograph 6 (and Mr. Flynn’s photograph 10 showing the €2 coin). He stated that he could not locate a “ sudden drop ” at the approach to the cattle grid and when Mr. Flynn’s photographs were put to him, he felt that the cyclist should have no difficulty in getting over the grid of that point as the wheels of the bicycle would be in constant contact with the ground transitioning from the concrete surround to the metal bars of the grid.
40. He could not understand how the plaintiff found the drop “ sudden ” or “ unexpected ” as the plaintiff had cycled over the cattle grid before. He could not see how the plaintiff could be thrown off his bicycle in the manner outlined although he accepted that a cyclist could lose control of a bicycle on a cattle grid. There was nothing unusual about this cattle grid. He thought that a cyclist approaching the cattle grid had adequate sightlines and could see where he was going. He felt that the plaintiff took a risk in going over the cattle grid on his bicycle and there was no reason why he could not have dismounted and gone around the pathway to the left of the pillar. He did not believe that the concrete surround amounted to a particular hazard or risk for cyclists and referred to the evidence by Mr. McIntyre about members of the cycling club cycling over the grid. He indicated that, if the plaintiff was not confident enough to pass over the cattle grid, he could have dismounted from his bicycle and walked around the grid. He explained that the DMRB guidelines had no application.
41. Under cross-examination, Mr. Twomey was asked whether he had closed the gate (as shown in his photographs). He confirmed he had. He accepted that on the evidence, no one else had ever seen the gate closed. He accepted that the public had access to this area and used it for amenity purposes. He also accepted that it would be very simple and inexpensive to erect a sign informing those approaching the cattle grid of the presence of the grid and of the change in the level of the road. He accepted that if this were a ramp, it would be very simple to warn users of the roadway of its presence but thought that the cattle grid could be seen in any event. He also felt that people could see the concrete surround (which he denied was a ramp). He did not agree that it would be prudent to warn people of the drop from the top of the concrete surround to the metal bars of the cattle grid of 2¾ inches or the final drop of 1 inch from the concrete to the metal bar. He felt the drop was more subtle and referred to his photograph 6. When Mr. Flynn’s photograph 6 was shown to him, he did not accept that the concrete had been laid over the first of the metal bars of the grid. He felt that the photographs demonstrated bits of grass, silt and debris and not an indication that concrete had been laid on the metal bars. Mr. Twomey accepted that this cattle grid had a wider section of concrete surrounding it than the other grids on the road. He also accepted that if the concrete surround was flush with the cattle grid there would not be any additional risk to cyclists. He stated that the risk in crossing a cattle grid on a bicycle is the gaps between the metal bars and the risk of the wheels of the bicycle getting caught between the bars.
42. He accepted that if the concrete surround was smooth, had no rise or no lip, there would be no issue for cyclists although he stated that a cattle grid had to be slightly below the level of the road. He also accepted that it would have been simple to install the cattle grid and concrete surround with the concrete abutting against the first of the steel bars giving a degree of continuity in levels.
43. Mr. Flynn’s photograph 10 (showing the €2 coin) was put to him. It was suggested that that photograph showed that the concrete had been laid on the metal bar and had broken up. Mr. Twomey did not agree that the photograph showed the concrete laid on the steel and he thought it showed silt and debris. He could not comment as to whether any change had taken place in the structure of the concrete surround in the period since construction. He was adamant that the photograph (photograph 10) did not demonstrate that the concrete had been laid on the metal bar and was unable to comment on whether the photograph showed that the concrete had broken up in the period since its installation. He did not believe that the drop at issue was such as to create a particular difficulty for a person on a bicycle. However, he agreed that he would not design the cattle grid and surround in that way although he reiterated that he had not seen evidence that the concrete had been poured onto the steel bars (accepting that if it had been, it would not have been an appropriate method of construction). He stated that it was inevitable that there would be a gap or joint in transitioning from one surface (the concrete surface) onto another surface (the cattle grid). He did not believe that the 25mm/1 inch drop was dangerous and did not agree that it was a hazard.
44. On re-examination, Mr. Twomey was asked to compare the drop evident in Mr. Flynn’s photograph 10 with pothole. He stated that potholes could contain more significant drops or depressions and he had never seen signs warning people of potholes.
(d) Aidan O’Rourke
45. The final witness to give evidence on behalf of the Council was Mr. Aidan O’Rourke, a senior executive engineer with the Council with responsibility for the Shannon area since October 2018. He produced a photocopy of a screengrab from the Council’s pavement management system showing the road at issue which has been allocated the code L73481. He identified the road as a local tertiary road and explained that such a road falls within the lowest classification of road within the national system which ranges from motorways down to local tertiary roads. He confirmed that it is a public road.
46. Under cross-examination, Mr. O’Rourke confirmed that the road became a public road in 2011 when it was added to the register. He was unaware as to how this had been done and could not confirm whether an order designating the road as a public road was made. He stated that when a road on land owned by a private owner was being taken in charge by the Council, it would be required to be brought up to standard by the developer or owner or alternatively a bond would be required. He confirmed that he was not aware whether a bond had been obtained from Shannon Development at the time of this transfer. He explained that normally a survey would be carried out which would determine what works would be required to remedy any defects in the road prior to it being taken in charge. He accepted that sometimes a report would be prepared but that it might not always be done. If works needed to be done before the road was taken in charge, funding would be sought from the developer or private owner. He was not aware as to whether a survey had been carried out in respect of the road in question but accepted that it would be normal that such a survey would be done. Certainly in the case of housing estates, a survey and report would be prepared. In relation to the roads in such estates, the survey would consider whether works were required to bring the road up to an acceptable standard. He was unaware as to whether a report had been prepared in the case of the road at issue in this case. He accepted that the road was both a public road and was also within the ownership of the Council.
Findings of fact on liability issues
47. I have carefully considered the evidence as summarised in the previous section of this judgment and I make the following findings of fact based on my assessment of the evidence given by the witnesses called on behalf of the plaintiff and on behalf of the Council.
48. I completely accept the plaintiff’s account of the circumstances in which he fell from his bicycle on 3rd August, 2014. The plaintiff struck me as a very cautious and careful man. He was an honest and truthful witness. The account which the plaintiff gave in his evidence as to the circumstances of the accident was entirely consistent throughout his evidence. I reject the suggestion made by the Council that the plaintiff gave inconsistent accounts of the circumstances of his accident in the various documents and pleadings referred to earlier. While I accept that the description of the accident recorded in the hospital case notes was not entirely consistent with the circumstances of the accident as described in evidence by the plaintiff, I am satisfied that the likely explanation for this is that the member of the hospital staff responsible for making the entry in the case notes did not fully understand or appreciate the explanation given by the plaintiff of the circumstances of his accident. The plaintiff may also have been somewhat confused at that stage having regard to the severe pain which he was in and the fact that he had been administered with a significant dose or doses of morphine. The account given by the plaintiff in his direct evidence and under cross-examination was unwavering. I accept the plaintiff as an entirely truthful and accurate historian as to the circumstances of his accident.
49. The plaintiff was engaged in the commendable pursuit of cycling his bicycle. He was, as befits the character of the plaintiff as revealed to me in the course of the plaintiff’s evidence, cycling in a very cautious manner at or about walking pace as he approached the cattle grid. He was as far from a “boy racer” as it is possible to be. The plaintiff was familiar with the cattle grid and had cycled over it on one previous occasion without difficulty. However, on this occasion, the plaintiff cycled his bicycle towards the left side of the grid. As he cycled over the concrete surround or ramp or dome on the left side, he experienced a sudden and unexpected drop from the concrete onto the metal bars of the cattle grid. While the plaintiff could see the cattle grid as he approached it, from some considerable distance before the grid, the plaintiff could not see the drop from the concrete surround or ramp or dome onto the cattle grid until it was too late. I accept that the drop from the top of the concrete surround to the metal grid was the order of 2¾ (70mm) and that the final drop from the bottom of the concrete surround to the metal grid (where the concrete had broken away) was in the order of 1 inch (25mm).
50. I accept the evidence given by the plaintiff and by his engineer, Mr. Flynn, that this was a sudden and unexpected drop and that this is what caused the plaintiff to lose control of his bicycle and to fall to his left in a manner which caused a very serious injury to his left ankle. I accept that the plaintiff was cycling his bicycle at a leisurely pace and had slowed down to an appropriate pace when attempting to negotiate the cattle grid. I do not accept that the plaintiff was either cycling too quickly or too slowly (being the two propositions put to him on behalf of the Council). Nor do I accept that the plaintiff ought to have dismounted his bicycle and walked around the gate pillar in order to negotiate the cattle grid. I am satisfied on the evidence that the plaintiff having successfully negotiated the grid on one previous occasion, felt sufficiently confident to do so again. However, he did not expect to encounter the sudden and unexpected drop which caused him to lose control of his bicycle and which led to his fall. I am also satisfied on the evidence that cyclists regularly cycle over the cattle grid and do not routinely dismount from their bicycles and go around the left hand gate pillar. People do undoubtedly walk around the pillar and it is likely that some cyclists do dismount from their bicycles at that point and shove or pull their bicycle either ahead of or behind them going around the pillar. However, many do not. The plaintiff was entitled to feel confident that he would be able to manage to cycle over the cattle grid by reference to his previous experience. The fact that he did not experience this drop on the previous occasion and the fact that others may not have done so may well be explained by the fact that he and they cycled over the middle or to the right of the cattle grid rather than over the left side of the grid. I am also satisfied on the evidence that the Council was aware that people cycled over the cattle grid.
51. The evidence establishes that the road in question and the features on it, including this cattle grid and the two or three other cattle grids on the road, are within the ownership of the Council and, in addition, form part of the public road. The Council acquired ownership of the road and the cattle grid when they were transferred to the Council by Shannon Development in 2004, as part of a large transfer of assets. The road and cattle grid were, therefore, been within the ownership of the Council since 2004. I also accept that the road has been a public road bearing the code L73481 since 2011, although the precise circumstances in which and the manner in which the road was designated a public road have not been fully explained by the Council. I accept that the road is a local tertiary road which is at the lowest level in the order of hierarchy of roads within the national road system.
52. I am satisfied on the evidence that the cattle grid and the concrete surround were likely to have been constructed or installed by Shannon Development, the Council’s predecessors in title. I find on the evidence and, in particular, on the evidence of the engineers and the photographs which they produced, that the other cattle grids on the road do not contain a concrete surround or a ramp or dome of the type found at the cattle grid in question. While concrete can be seen around one or more of the other cattle grids, it is not of the width or of the height or gives rise to the type of drop that is to be found in the cattle grid at issue here. I do not have to decide whether the concrete surround was installed at the same time or subsequent to the cattle grid. The fact is that it is there and does contain the features referred to earlier and, in particular, the sudden drop of 25mm (1 inch) from the concrete onto the metal bars of the cattle grid. The purpose of the concrete surround or ramp or dome is unclear. If it was for the purpose of defining the cattle grid, then it would not have needed to be raised or to contain this type of drop or fall present. No witness on behalf of the Council could state with any degree of certainty what the purpose of this feature was other than to speculate that it was either to define or delineate the cattle grid or to prevent water from getting into the grid. This is all pure speculation. If its purpose was to define or delineate the cattle grid from the roadway, then it is difficult to see why it was raised or domed and contained the sort of drop that is found as part of the feature. Its purpose may have been to prevent water getting into the cattle grid, as surmised by Mr. Twomey and by one of the Council’s witnesses, however, this was just speculation on their part. It is possible that the purpose was to slow down traffic going over the cattle grid. However, if that were so, it is not clear why similar features are not found in the other cattle grids (with the rise or dome and then sudden drop or fall onto the cattle grid itself). I am not in a position to reach any definitive conclusion as to what the purpose of the feature was. It may have served no purpose at all.
53. I accept the evidence of the plaintiff’s consulting engineer, Mr. Flynn, as to the manner of construction of the concrete surround. I conclude on the basis of Mr. Flynn’s evidence and the photographs taken by him in June, 2015, and in particular photographs 5 and 6, and in February, 2019, in particular photographs 9 and 10, that during the construction or installation of the concrete surround, the concrete was laid over at least the first of the metal bars of the cattle grid. I am satisfied that Mr. Flynn’s photographs clearly demonstrate this. Indeed, this is also evident from Mr. Twomey’s photograph 6 (taken in March, 2016). Insofar as there is a conflict between Mr. Flynn and Mr. Twomey on this issue, I accept Mr. Flynn’s evidence and reject that of Mr. Twomey. I agree with Mr. Flynn that laying concrete over the metal bar of the cattle grid is a defective and inappropriate method of construction. This is particularly so in circumstances where the concrete surround is raised, giving rise to a dome, and where there is a drop or fall from the top of the concrete to the metal grid of in the order of 2¾ inches (70mm) and as part of that, a sudden drop or fall of 25mm (1 inch). Laying the concrete on the metal bar of the cattle grid rendered the concrete liable to be broken up with the passage of vehicular traffic over it. This was an entirely foreseeable consequence of this manner of construction. I am satisfied that the breaking up of the concrete laid over the first of the metal bars of the cattle grid in this defective manner is what caused the sudden drop of 25mm (1 inch) from the concrete onto the first of the metal bars of the grid on the left side of the grid. I am also satisfied that such a drop was a hazard or danger to cyclists, such as the plaintiff, who sought to cross the cattle grid at that point on their bicycles. I conclude that a cyclist approaching the cattle grid from the road (in the direction which the plaintiff was travelling) would not see this drop until it was too late. I accept that the drop was sudden and unexpected and that this is what caused the plaintiff to lose control of his bicycle and to fall.
54. I also accept Mr. Flynn’s evidence that, whatever its purpose, whether it be to induce approaching vehicles to reduce speed before crossing the cattle grid, a concrete structure amounting in effect to a ramp or dome ought to have been set back some distance from the cattle grid itself. While there is no set distance for doing so, I accept that at least one vehicle’s length from the cattle grid would have been appropriate, as stated by Mr. Healy. I note that Mr. Healy and Mr. O’Shea, both experienced engineers with the Council, accepted that if they were designing a ramp at this location, they would have designed and ensured its construction or installation at a distance back from the cattle grid itself, although I am not overlooking the fact that both took the view that the purpose of this concrete structure at the cattle grid was not to act as a speed ramp. In my view, if a raised concrete structure such as that found at this location was installed then it ought to have been placed a distance back from the cattle grid. I also accept Mr. Flynn’s evidence that some notification ought to have been given to cyclists approaching the cattle grid of the presence of the ramp or hump created by reason of the manner of construction of the concrete surround. This could have been done at very little expense by way of signage or highlighting, although I accept that the guidelines or regulations applicable to speed humps on new roads and bridges did not have any application to this road.
55. I conclude that in those two respects, the defective manner of construction and the failure to locate the concrete feature a distance from the cattle grid, the concrete surround was defectively designed and constructed and created a danger or hazard to cyclists such as the plaintiff approaching that cattle grid.
56. I am satisfied on the evidence that it is likely that prior to the transfer of assets from Shannon Development to the Council, there was an inspection or survey of the condition of the assets. The assets being transferred included roads of various types including the local tertiary road at issue here. My impression from the evidence given by the Council witnesses is that it is likely that such a survey was carried out and a report prepared but it is possible that it did not go into the level of detail which would have picked up the defective features of the concrete surround at this cattle grid. However, it may have done. I am surprised that the Council witnesses were not in a position further to assist the court by giving evidence as to the nature and extent of the survey or investigations carried out and the nature of any report which emerged from that as part of the transfer process. It is particularly surprising that they were unable to state with any degree of confidence whether a survey or investigation including this road was ever undertaken as part of that transfer process. Mr. O’Shea stated that if a survey was carried out and a report prepared, he would expect it to be in the Council’s archives. However, no person on behalf of the Council appears to have undertaken a search of the archives. No one from the Council was in a position to inform the court as to what steps would need to be taken to try to identify whether a survey was carried out or a report prepared which may have included the road and cattle grid in question. If a survey was undertaken and report prepared which referred to this road, it may or may not have picked up the defective manner of construction and condition of the concrete surround or dome or ramp at the cattle grid. However, it may have done. This is all information within the peculiar knowledge of the Council. It is unfortunate that the Council did not fully address this issue in its evidence to the court.
57. I am satisfied on the evidence that the Council was aware that people used this road and had to cross this cattle grid for a whole range of purposes including the need to obtain access to the water treatment plant at the end of the road as well as for recreation or amenity purposes. It is clear on the evidence that the Council was aware that people regularly walked and cycled down the road. It is clear on the evidence that at least one of the Council witnesses himself was regularly up and down the road for recreational and work purposes. That was Mr. O’Shea. The Council was, therefore, well aware of the fact that people including cyclists used this public road on a regular basis. It is difficult to conclude other than that the Council was or must have been aware of the state of the cattle grid and in particular the concrete surround. The legal significance of this is a different question and I will consider that shortly.
The plaintiff could undoubtedly have dismounted from his bicycle and taken it through the gap between the left hand pillar and the boulders to the left of the cattle grid. It would have been an awkward operation in light of the width of the gap (approximately 500mm) and his bicycle would have had to have been pushed ahead or pulled behind him. However, the plaintiff had successfully negotiated the cattle grid on his bicycle in the past and others had done so without difficulty. It was not forcefully suggested to him that he was wrong to have cycled over the cattle grid but rather that, if he felt unable or not confident enough to do so, then he should have dismounted his bicycle and taken it around the cattle grid. It is clear on the evidence, therefore, that the plaintiff was entitled to go over the cattle grid on his bicycle. I accept, however, that an issue of contributory negligence does arise and I address that later in my judgment.
Legal issues: Liability
58. The plaintiff’s claim is advanced under two principal or primary headings and under a number of other subsidiary or secondary headings. The principal or primary claims advanced by the plaintiff are that the Council is liable in respect of his accident on the basis that the condition of the cattle grid and, in particular, the concrete surround was caused by reason of the negligence of the Council in its capacity as a road authority and that such negligence amounts to misfeasance as opposed to nonfeasance. Another principal or primary claim advanced by the plaintiff is that the condition of the cattle grid and its concrete surround amounts to a nuisance on the public highway, which is a public nuisance, which was created or maintained by the Council or its predecessors in title, Shannon Development. Alternative subsidiary or secondary claims are advanced under the 1995 Act and under the 1993 Act (as amended). There are significant legal issues in relation to each of these heads of claim. I will address each of them in turn and set out my conclusions below.
(a) Negligence: misfeasance v. nonfeasance
59. I have found that as a matter of fact that the concrete surrounding the cattle grid was defective in terms of its design and construction for the various reasons as set out above. What are the legal consequences of that finding? Is the Council entitled, as it seeks to do, to rely on the defence of nonfeasance on the basis that it carried out no works to the road and that such works as were carried out were done by its predecessor in title, Shannon Development, with no intervention by the Council following its acquisition of the road in 2004, and the designation of the road as a public road in 2011? Or does the Council have a liability in misfeasance?
60. It is unnecessary to set out at any length the source of the effective immunity of road or highway authorities in the case of nonfeasance. It is well established at common law. The statutory attempt to remove that immunity in s. 60(1) of the Civil Liability Act 1961, was never implemented in that no ministerial order giving effect to that provision was ever made. Moreover, s. 2(3) of the Roads Act 1993 effectively preserved the immunity by stating:-
“Nothing in this Act affects any existing rule of law in relation to the liability of a road authority for failure to maintain a public road.”
61. In his leading text on The Law of Local Government (1st ed., Round Hall 2014), Browne describes nonfeasance as follows:-
“8-33 Nonfeasance involves cases of pure omission where the roads authority fails to take measures to construct or repair. The roads authority has traditionally been immune at common law from liability for nonfeasance where it fails to carry out its duty to repair and maintain public roads and is consequently not liable for any injury or damage [citing Convery v. Dublin County Council [1996] 3 IR 153 and Flynn v. Waterford County Council [2004] IEHC 335] … As a result of the principle of nonfeasance, local authorities have been held not to be liable for injuries caused to users of a public road where there was a hole in the road arising from the failure to repair the highway or for the failure to clear out ditches or gullies or for the failure to cut branches overhanging a highway or for the failure to level off a drop in the highway [citing Cowley v. Newmarket Local Board [1892] AC 345] …” (Browne at para. 8-33, pp. 294-295).
62. Browne describes misfeasance as follows:-
“8-34 Although a local authority is generally protected for liability under the doctrine of nonfeasance, if it performs its duties of repair and maintenance in a negligent manner it may be liable for damages or injury arising therefrom (misfeasance). For example, liability has been held in instances where the local authority failed to properly guard or light materials left on a road or use proper machinery or proper materials [citing Breen v. County Council of the County of Tyrone [1908] 42 ILTR 250] and where it removed a protective fence along a highway. A roads authority cannot necessarily escape liability on the basis that it engaged an independent contractor to do the work.” ( Browne at para. 8-34, p. 295).
63. In Keane on Local Government (3rd ed., Bloomsbury Professional 2015) examples of nonfeasance and misfeasance are set out. In explaining misfeasance, Keane states:-
“If a local authority do in fact carry out their duty to construct or repair a road and do so negligently, they are guilty of misfeasance and, not non-feasance, and are liable damage or injury arising. The failure gives rise to liability, whether it arises by commission or omission.” (Keane at p. 77).
64. While the distinction between misfeasance and nonfeasance remains part of our law, albeit an anomaly, it is important to appreciate the parameters of that distinction and to ensure that it is not applied to confer immunity for nonfeasance in a case which is in truth one of misfeasance dressed up as nonfeasance. The doctrine of nonfeasance must not be extended beyond its established boundaries. The distinction between nonfeasance and misfeasance was concisely explained by Costello J. in the High Court in The State (Sheehan) v. Government of Ireland [1987] IR 550 where he stated:-
“There [at present] exists in the law relating to the liability of road authorities for defects in public roads and footpaths a distinction between misfeasance and nonfeasance. If an authority commits a positive act of negligence in the construction of a footpath or in its maintenance (that is, an act of misfeasance), it is liable to a person injured thereby. But if it merely fails to maintain a footpath so that it falls into disrepair (that is, guilty merely of nonfeasance) it is not liable to someone injured due to its lack of repair.” (per Costello J. at 554).
65. In the earlier case of Kelly v. Mayo County Council [1964] IR 315, Lavery J. in the Supreme Court stated to similar effect as follows:-
“Defendants are the highway authority charged with the repair and maintenance of roads and particularly of the road upon which the plaintiff’s accident occurred. As such authority they are liable in damages for injuries suffered by a road user if they have been negligent in doing repairs or in interfering with the road. They are not liable for injuries suffered or caused by the want of repair of a road. This is the familiar distinction — they are liable for misfeasance but not for nonfeasance.” (per Lavery J. at pp. 318-319)
66. It will be readily apparent from these passages that if the local authority acting in its capacity as a road authority is negligent in the manner in which a road is constructed, that is a case of misfeasance and not nonfeasance and the immunity does not apply. The immunity applies essentially to the failure (or omission) to maintain and repair a public road and not the failure properly to design and construct it in the first place. That distinction was considered and applied by Cross J. in the High Court in Loughrey v. Dun Laoghaire County Council [2012] IEHC 502. In that case the plaintiff tripped on a public footpath where there was a slight differential (of 6mm) between two paving slabs. The court had to consider whether the differential was caused by weathering or aging or by poor specification and design or faulty construction at the outset. If the court found as a matter of probability that the cause of the differentiation was poor specification and design or faulty construction, Cross J. stated that the court would be obliged to conclude that the differential was caused by the fault of the local authority and amounted to misfeasance rather than nonfeasance. He concluded that as a matter of probability the differential between the two slabs was caused by either faulty construction or poor specification and design or by a combination of those two causes and, therefore, amounted to misfeasance rather than nonfeasance. The local authority was, therefore, liable.
67. These cases were considered by Hogan J. in the High Court in McCabe v. South Dublin County Council [2014] IEHC 529. In that case, Hogan J. found that the failure by the road authority to repair an opening in the surface of a footpath or, if it had been repaired, the subsequent tampering by persons unknown with the opening, constituted nonfeasance and not misfeasance and meant that the authority was not liable to the plaintiff. This was a classical application of the misfeasance/nonfeasance distinction.
68. In support of its contention that the Council can have no liability to the plaintiff in negligence arising from the state of the cattle grid and concrete surround, the Council asserted that there was nothing wrong with the cattle grid and concrete surround and that it did not constitute a danger or hazard to persons such as the plaintiff. I have reached the contrary conclusion, as appears from my earlier findings. The Council went on to contend that, in any event, it could have no liability to the plaintiff on the basis that if the cattle grid and concrete surround did create a danger or was in a defective condition, the Council was entitled to rely on the defence of nonfeasance. The Council relied on the above extract from Browne and on some cases. It first relied on Flynn v. Waterford County Council [2004] IEHC 335. The issue in that case was whether the defendant, as the relevant road authority, had any liability in respect of a road traffic accident by reason of a failure to erect warning signs and to maintain them. The High Court (Finnegan P.) held that the Roads Act, 1993, did not impose any statutory duty on the defendant to erect and maintain road signs and that the failure to do so did not give rise to an action for negligence at common law either. In the particular factual circumstances of that case, a road sign was in disrepair and was largely obscured by vegetation so that it was not visible to a motorist until the last minute. The court held that there was no liability in negligence. The court held that if no sign had been erected that could not give rise to a claim by an individual for damages for breach of any statutory duty. Further, the court held that had the defendant done nothing, it would not have attracted a common law duty of care and that, having given a warning, even if the warning was less than what might have been desirable, the defendant had nonetheless done more than it was obliged at common law to do and, therefore, no liability at common law arose. However, it seems to me that this case does not really advance the critical distinction between nonfeasance and misfeasance in circumstances where the allegation is that the road or a feature on the road, which forms part of the road, was negligently constructed or installed in the first place or where a material alteration was made to the road following its initial construction. That critical distinction is evident from the dictum of Costello J. in Sheehan and from the extracts from Keane and Browne quoted above and is clear from the application of the distinction by Cross J. in Loughrey. Flynn is to my mind more significant for its consideration of the circumstances in which a road authority may be liable in civil proceedings in the case of a public nuisance on the highway and I will consider it further in that context.
69. The next case relied upon by the Council was Cowley v. The Newmarket Local Board [1892] AC 345. In that case, an owner of land adjoining the public highway, in making an approach or entrance to his land without the sanction or authority of the highway authority, made a drop in the level of the highway and left it in a dangerous condition. The plaintiff who was walking along the highway fell down the drop and was injured. He alleged that the highway authority was liable in that it permitted the highway to be in disrepair and in a dangerous condition. However, he failed on the basis that it was a case of nonfeasance and not misfeasance by the authority. Again this appears to be a classic case of nonfeasance where there was no question of any defect in the roadway as constructed and where there was no intervention on the road by the authority or by its predecessors in title. The Council noted that the decision in Cowley was approved of by the former Supreme Court in O’Brien v. Waterford County Council [1926] IR 1 (“O’Brien”) and the Council also relied on that case. However, while noting the “ anomalous rule ” that a road authority is not liable for nonfeasance and only for misfeasance, the court in O’Brien held that what was at issue in that case was misfeasance and not nonfeasance. There, the road authority made repairs improperly so as to make the repaired structure dangerous to persons using the road. The court held that the doctrine of nonfeasance could not be invoked to absolve the road authority from the consequences of negligence in making the repairs. The court further held that it was not correct to say that because the authority was under no obligation to light the bridge, there could, therefore, be no obligation on it to light an obstruction placed by it on a partially repaired bridge erected by it if the works in that state would be a source of danger. Delivering the judgment of the court, Murnaghan J. stated:-
“The true rule of law is that if the defendants rebuilt the bridge so improperly as to make it unsafe for the public to use it at night, and if they did not take such steps as the jury might consider reasonable in order to neutralise the danger arising from using the bridge, they are guilty of acts of misfeasance for the consequences of which they are responsible in damages to any person injured” (at p.9).
This, therefore, was a case of misfeasance and not nonfeasance and it does not seem to me to be of any assistance to the Council in this case.
70. The Council further relied on the extract from Keane quoted above. However, in the examples of misfeasance given by Keane, it is made clear that if the local authority carries out its duty to construct a road and does so negligently, that is misfeasance not nonfeasance. The plaintiff argues that that is what happened in this case. It contends that the cattle grid and concrete surround were negligently constructed in the first place, both by reason of the location of the concrete surround or dome or ramp right at the cattle grid and by reason of the defective method of constructing or installing the cattle surround by laying the concrete onto the metal bars and that this amounts to misfeasance and not nonfeasance. I accept that submission. It is not possible to decide whether the concrete surround was installed at the same time as the cattle grid. However, it matters not. While the Council itself did not carry out the works, its predecessor in title, Shannon Development, did. The works were, therefore, carried out in a defective manner by the Council’s predecessors in title. I agree with the plaintiff’s that the Council cannot distance itself from those defective works on taking a transfer of the road and associated works and lands in 2004 and when designating the road as a public road in 2011. While the parties were not in a position to identify any case in which a predecessor in title of a road or highway authority negligently constructed a road or a feature on a road, it seems to me that it follows from first principles that the Council must have a liability for the negligent acts of its predecessor in title in the construction of the concrete surround at the cattle grid and that it is not entitled to rely on the doctrine of nonfeasance in respect of the defective construction or installation of that feature.
71. The Council did draw my attention to the decision of the High Court in Gaye v. Dublin County Council (Unreported, High Court, Morris J., 30th July, 1993) in a different context. However, one of the issues in that case was whether the local authority could be liable in negligence and nuisance in respect of defects on a footpath in a housing estate built by a developer and taken in charge by the authority some years later. It was alleged that when the authority took the estate in charge, a defect which amounted to a trip hazard was already in existence and ought to have been picked up by the authority when it took the estate in charge. The court concluded that there was no evidence that at the time the estate was taken in charge the trip hazard existed and held that, on the contrary, it was a flaw which would have developed over a protracted period. In those circumstances, the court was not prepared to conclude that it was in existence when the estate was taken in charge and was, therefore, not prepared to assume that there was negligence on the part of the authority. In the present case, however, it is accepted by the Council that the cattle grid and concrete surround was present at the time the road and relevant lands were acquired by the Council in 2004 and when the road became a public road in 1993. I have concluded that the concrete surround did pose a danger or hazard to persons such as the plaintiff. If there was a survey and report prepared at the time of the transfer, this hazard ought to have been picked up. If there was none, then that was the responsibility of the Council and it had the opportunity of carrying out such a survey. I am conscious that it might appear somewhat unfair to the Council to saddle it with the liability for works done by Shannon Development. However, it acquired the lands and the road from Shannon Development and it was presumably open to the Council to provide for an indemnity from Shannon Development under the terms of the transfer. I was not given any evidence as to the terms of the transfer or as to whether provision was made for an indemnity for the Council in that transfer. I see no reason why it would not have been open to the Council to provide for such an indemnity. In those circumstances, I do not believe that it is unfair on the Council to find it liable in respect of the defects in the construction and installation of the concrete surround at the cattle grid by its predecessors in title.
72. In reaching my decision on liability, I have also borne in mind the admonition of the Court of Appeal in Byrne v. Ardenheath Company Limited [2017] IECA 293 that in considering the question of liability, where the court is not dealing with a complex specialist field of activity, the trial judge is required:-
“ not only to consider the expert evidence tendered by the parties but to bring ordinary common sense to bear on their assessment of what should amount to reasonable care.” (per Irvine J. at para. 32).
73. I am satisfied that as a matter of common sense, notwithstanding the fact that the works were carried out by the Council’s predecessors in title and acquired by the Council on foot of the transfer referred to with the Council subsequently designating the road as a public road, and notwithstanding its status as a local tertiary road in the hierarchy of roads, having regard to the danger or hazard posed by the concrete surround at the cattle grid to persons such as the plaintiff who are known by the Council to use the road for amenity and other purposes, liability should rest on the Council in respect of the negligence of its predecessor. I am also satisfied, for the reasons outlined earlier, that the negligence in question amounts to misfeasance and not nonfeasance. In those circumstances, I conclude that the Council is liable to the plaintiff in negligence.
(b) Public nuisance on the highway
74. The plaintiff also maintains a claim in nuisance against the Council alleging that the sudden drop from the concrete surround onto the cattle grid constituted a danger or trap amounting to a nuisance. The Council asserts that it can have no liability in nuisance and that the only possible basis on which it would have any liability at all to the plaintiff is in its capacity as a road authority (arguing unsuccessfully as I have found, that no such liability can arise in this case on the grounds of nonfeasance).
75. However, I am satisfied that in addition to being liable to the plaintiff in negligence in its capacity as road authority, the Council is also liable to the plaintiff for the tort of nuisance. The nuisance in question is a public nuisance on the highway by reason of the construction or installation of the concrete surround at the cattle grid which incorporated the sudden drop onto the cattle grid and which, in my view, constituted a danger or hazard to persons such as the plaintiff which was created by the Council’s predecessor in title, Shannon Development, and maintained in place by the Council following the transfer of the road and lands to the Council in 2004. While a public nuisance is a crime, covering a wide and multifarious range of situations, it is open to a private individual to maintain civil proceedings where that person has suffered “ particular ” or “ special ” damage (McMahon & Binchy Law of Torts (4th Ed, Bloomsbury 2013) paras. 24.23-24.04, pp. 980-981). One type of public nuisance is public nuisance on the highway. That is the type of nuisance at issue in this case.
76. Two issues arise in this context on the facts of this case. The first is whether the concrete surround at the cattle grid amounts to a public nuisance to users of the road. The second is whether, the structure having been constructed and installed by the Council’s predecessors in title, the Council can have any liability in public nuisance in respect of it.
77. A public nuisance on the highway can arise in a vast range of circumstances, including where there are obstructions placed on the road or features which make it dangerous to the public using the road. In Hassett v. O’Loughlin (1943) 78 ILTR 47, O’Briain J. in the Circuit Court stated that:-
“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 those using it.” (at p. 48).
In that case, the court found that the defendant was liable to the plaintiff in public nuisance in circumstances where the defendant had placed a small heap of stones on the side of the highway which had caused a horse which was being driven with a cart by a third party to shy across the road and to strike the plaintiff’s horse, seriously injuring it. The court found that the pile of stones on the highway was a nuisance as horses were inclined to shy at it. The court was satisfied that the damage in the case flowed from the nuisance. The defendant was held liable for putting the stones on the highway albeit that he did so “ quite innocently and without any negligence”. McMahon & Binchy give this case as an example of public nuisance on the highway caused where the highway is rendered unsafe or dangerous to the public. A host of other examples of dangers to the public using the highway amounting to a nuisance are given by McMahon & Binchy at para. 24.17 (pp. 987-988). They include, relevantly for present purposes, “ damaging the road surface or rendering it hazardous or damaging property under it” and “ placing dangerous materials on or near the highway”.
78. In Mullan & Ors v. Forrester [1921] 2 IR 412, a case relied upon by the plaintiff, the King’s Bench Division, by a majority, directed a new trial in circumstances where a wall on the defendant’s land which abutted the public highway was blown over during a storm killing three people. The court directed a retrial arising from the judge’s charge to the jury. The majority of the King’s Bench Division held that this could amount to a public nuisance and that it was not necessary to prove that the defendant knew or ought to have known of the defective condition of the wall. Gordon J. (who formed part of the majority) stated:-
“Now, a nuisance is something different from, and not to be confounded with, either trespass or negligence, though the wrong is in some respects analogous to trespass, and the two may coincide. If a person erects alongside a public highway upon his own land some structure, or makes some excavation which, as erected or made, is dangerous to persons lawfully using the highway, that is a public nuisance; and if any person lawfully using the highway is injured thereby, he has his cause of action. But I have not found or been referred to any cases of that kind in which any question as to whether defendant knew, or ought to have known, of the dangerous nature or condition of the structure erected, or excavation made by him, has been submitted to a jury or relied on as a defence to an action.” (per Gordon J. at p. 426).
79. That case did not involve a road authority. However, the case of Skilton v. Epson & Ewell Urban District Council [1936] 2 All ER 50 (“Skilton”) did. The plaintiff also relied on that case. In Skilton, the plaintiff was riding her bicycle along the highway when a traffic stud which had become dislodged was thrown up by a passing car and struck the plaintiff’s bicycle causing her to fall from her bicycle and sustain injuries. It was found as a fact that the stud had been loose for a number of weeks. The stud had been inserted into the roadway under certain statutory powers. The English Court of Appeal held that, whether or not the stud formed part of the highway, the insertion of the stud into the roadway was not done as part of the authority’s duty to maintain highways and, therefore, the doctrines of misfeasance and nonfeasance did not apply. The court held that the actions of the authority resulted in a nuisance upon the highway and that the authority was properly found liable to the plaintiff notwithstanding the fact that the defendant was also the highway authority. This is an example of a case where the highway authority was found liable for a public nuisance on the highway in circumstances where works were carried out by the authority, not in its capacity as the highway authority but for a different purpose. Skilton was considered by Finnegan P. in Flynn v. Waterford County Council (referred to earlier). However, Finnegan P. was satisfied that the plaintiff in Flynn could not bring himself within the principle on which that case was decided, namely, “ that a common law liability might arise from acts done on or around the highway that have created a source of danger to users of the highway” . He held that the existence of the obscured sign in that case did not constitute a nuisance. It may be noted that Finnegan P. did not suggest that the defendant could have no liability in nuisance by reason of the fact that it was the road authority. In Kelly v. Mayo County Council [1964] IR 315, the defendant local authority was sued for negligence in its capacity as road authority and also for public nuisance on the grounds that the defendant’s lorries had damaged the road by excessive user and created a rut or pothole in the road. It was conceded on behalf of the plaintiff in that case that liability in negligence could not be maintained against the defendant as the road authority. Notwithstanding that the defendant was the road authority, the Supreme Court went on to consider whether it could be liable for creating a public nuisance on the roadway. The Supreme Court held that the evidence was not sufficient to justify a jury finding that the user of the road by the defendant amounted to a public nuisance. However, Lavery J. stated that there were circumstances in which the user of a highway could constitute a public nuisance giving rise to a cause of action to any person who could show particular damage to himself caused by the nuisance (notwithstanding that the defendant was a road authority) but that the user of the road by the defendant in that case was a normal user of the road and not a public nuisance (see p. 321). It seems to me that these cases are sufficient to defeat the contention made on behalf of the Council in the present case that the Council could have no possible liability in public nuisance and that, as the relevant road authority, its only liability would be in negligence, in the case of misfeasance.
80. The plaintiff also relied on the recent decision of the High Court (Barr J.) in O’Shaughnessy v. Dublin City Council & Ors [2017] IEHC 774. In that case, the plaintiff fell over a portion of a stone block which was projecting from one side of the underside of the Luas bridge at the triangle in Ranelagh onto the public footpath. Barr J. considered some of the case law (including Hassett and Stewart v. Governors of Saint Patrick’s Hospital (1939) 73 ILTR 115) and observed that:-
“It is settled law that even a small impediment on the public highway can constitute an actionable nuisance” (per Barr J. at p.14)
The court was satisfied that the piece of stone which jutted out from the foot of the wall of the bridge constituted a nuisance on the public highway.
81. In light of the findings of fact made earlier, and, in particular, my finding that the concrete surround or dome or ramp did constitute a danger or hazard to users of the road such as the plaintiff, I find that the dome or ramp at the cattle grid constituted a public nuisance. I am satisfied, on the basis of the findings of fact which I have already made, that the cause of the plaintiff’s loss of control of his bicycle as he negotiated the concrete surround or ramp was the sudden drop from the concrete onto the metal bar. I am also satisfied that this public nuisance on the road was what caused the plaintiff to lose control of his bicycle and it was, therefore, the cause of the fall and the consequent injuries sustained by the plaintiff.
82. The Council maintained that it could have no liability in nuisance in circumstances where it had not created the alleged nuisance and had no knowledge of it. The Council relied on the decision of the High Court (Peart J.) in Dempsey v. Waterford Corporation [2008] IEHC 55. In that case, the plaintiffs claimed that damage to their house was caused as a result of water penetration from water entering their premises via an old culvert. The defendant local authority denied any knowledge of the existence of this old culvert and contended that it could have no liability to the plaintiff in negligence or otherwise as it was completely unware of its existence and could not have foreseen that it was there. The plaintiff’s claim was based primarily on negligence and nuisance. Peart J. dismissed the claim in negligence holding that the defendant did not owe a duty of care of the type alleged. The court went on to consider the claim in nuisance. It might be noted in passing that the claim was for private and not public nuisance. Peart J. concluded that the defendant could not have been expected to foresee or anticipate that the culvert might exist without digging up the entire street and that led to the inevitable conclusion that the defendant was not liable in nuisance either. Peart J. referred to a passage in Clerk and Lindsell on Torts (18th ed.) where it was stated (at para 19-66):-
“As the general rule is that no one is liable for nuisance unless he either created it or continued it after knowledge or means of knowledge, it follows that it is a defence to prove ignorance of the facts constituting the nuisance, unless that ignorance is due to the omission to use reasonable care to discover the facts.”
The court held that the clear evidence in the case was that the defendant was unaware that the culvert existed and that it did not appear marked on any maps in the defendant’s possession. The court found that the defendant had no knowledge of the culvert. Nor did it have reasonable means of being aware of it since:-
“speculative excavation of the entire street on a ‘just in case’ basis is an unreasonable burden to impose on a local authority.”
83. The Council seeks to rely on this decision to support its contention that it can have no liability in nuisance to the plaintiff in respect of the condition of the concrete surround at the cattle grid as it had neither created nor continued the state of affairs which existed there. However, this completely ignores the fact that it was the Council’s predecessor in title, Shannon Development, who constructed or installed the cattle grid and concrete surround. The state of affairs this created continued to exist after the transfer of the road and lands to the Council in 2004 and after the road was designated a public road in 2011. In addition to the fact that the cattle grid and surround which had given rise to the hazard or danger to users of the road, including the plaintiff, when constructed or installed by the Council’s predecessor in title, the Council continued it after the transfer in 2004 and after the road was designated a public road in 2011. I am satisfied that the Council did have the means of knowledge of the existence of the public nuisance created at that location in that it either carried out a survey and prepared a report on the road together with the other assets being transferred or, if it did not cover this road in any such survey or report, or if the road was for some reason excluded from the survey or report, the Council nonetheless had the means of knowledge of the nuisance. In the event that the Council was unaware of the nuisance created by the condition of the concrete surround at the cattle grid, notwithstanding that Council witnesses were well aware of the cattle grid and that people including cyclists used it, such lack of knowledge was, in my view, due to the omission to use reasonable care to discover the true factual position. In my view, therefore, the decision of Peart J. in Dempsey, far from assisting the Council, is of assistance to the plaintiff in the present case and undermines the defence of the Council to the public nuisance.
84. It is in my view significant that the concrete surround and cattle grid were constructed and installed by the Council’s predecessor in title, Shannon Development, and not by some third party with no connection to the Council or who carried out works at the cattle grid without authority. However, even if the nuisance was created by a third party and was created without the knowledge or consent of the Council or its predecessor in title, liability in public nuisance could still arise in circumstances where the nuisance was continued and adopted by the Council. This issue arose for consideration in Sedleigh-Denfield v. O’Callaghan [1940] AC 880. That was not a case involving a public nuisance on a highway. The nuisance involved the placement of a pipe or culvert on the respondents’ land by a trespasser without the knowledge and consent of the respondents. The respondents subsequently became aware through their servants of the existence of the pipe and used the pipe for draining their fields. The pipe ultimately became blocked with leaves causing water to overflow onto the appellant’s premises causing damage for which he sought damages in nuisance. The House of Lords held that the respondents had to be taken to have had knowledge of the existence of the pipe notwithstanding that it was placed there by a trespasser and consequently they were responsible in nuisance for the damage caused to the appellant. The respondents were found to have continued and adopted the nuisance. Stating that there was no difference between the case of a public nuisance and a private nuisance, Lord Atkin observed that:-
“…where the occupier has knowledge of a public nuisance, has the means of remedying it and fails to do so, he may be enjoined from allowing it to continue. …if an individual could have proved special damage caused by the nuisance… he could surely have recovered damages.”
(per Lord Atkin at p. 899).
85. Lord Wright in the same case stated:-
“…An occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser, or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience… if the defendant did not create the nuisance he must, if he is to be held responsible, have continued it, which I think means simply neglected to remedy it when he became or should have become aware of it…”
(per Lord Wright at pp. 904-905).
This case has been referred to and applied in numerous Irish cases including Larkin v. Joosub [2006] IEHC 51 and University College Cork v Electricity Supply Board (ESB) [2015] IEHC 598.
86. As I have indicated earlier, in my view the Council is liable to the plaintiff in public nuisance as the nuisance was created by its predecessor in title but was continued or adopted by the Council in circumstances where the Council failed to do anything about it at the time of, or subsequent to, the transfer in 2004 and the designation of the road as a public road in 2011. The Council, therefore, failed without undue delay to remedy the nuisance when with ordinary reasonable care it ought to have become aware of the situation had it addressed it.
87. Finally, in this connection I should refer to another public nuisance case which is also relevant. It is the decision of the Supreme Court in Wall v. Morrissey [1969] IR 10. In that case it was claimed that the defendant had created a public nuisance on the highway when, with the permission of the local authority, he engaged a contractor to open a trench across the highway, laid water pipes in the trench, refilled the trench and subsequently refilled it the following day to compensate for subsidence which had occurred. The plaintiff was injured when he fell from his bicycle as he crossed the refilled trench. The trial judge withdrew the issue of public nuisance from the jury and the jury found that the defendant had not been negligent. On appeal, the Supreme Court agreed that the trial judge had correctly decided that the issue of public nuisance should not be left to the jury. In the Supreme Court, Walsh J. stated:-
“The temporary excavation of the highway is not itself a public nuisance so long as it does not offend by exceeding, in either degree or duration, the temporary requirements of a person whose premises adjoin the highway. A public nuisance is constituted by exceeding this temporary requirement, or by failing to restore the position to the point where it does not operate as a withdrawal of part of the highway from the public, or by leaving the highway dangerous for members of the public using it .” (per Walsh J. at p. 14)
88. Walsh J. continued:-
“It is true that the facts giving rise to a public nuisance often ground a cause of action in negligence also, and in many cases it may matter nothing which of these causes of action is relied upon. It is true, however, as has been submitted by counsel for the plaintiff, that negligence is not an essential element in nuisance… However, I am also content to adopt the reasoning of Lord Reid in the same case [The Wagon Mound (No. 2) [1967] AC 617] and to accept the conclusion which he arrives at, namely, that, while negligence is not an essential ingredient of nuisance in an action on public nuisance, foreseeability is an essential ingredient. In the present case, the defendant created a danger on the highway which did amount to a public nuisance, but before the plaintiff can establish his right to damages he must satisfy the jury that the injury which he suffered was a reasonably foreseeable event on the part of the defendant.” (per Walsh J. at pp. 14-15)
It can be seen, therefore, that while an action for public nuisance does not require negligence to be established, foreseeability must be established. In other words, the plaintiff must establish that the injury suffered by him was a reasonably foreseeable consequence of the public nuisance. I am satisfied in the present case that on the facts found by me, it was reasonably foreseeable by the Council that a person such as the plaintiff cycling over the concrete surround at the cattle grid could lose control of his bicycle, fall from the bicycle and sustain an injury. That is precisely what happened to the plaintiff.
89. In those circumstances, on the basis of the facts as I have found them, I am satisfied that the Council is also liable to the plaintiff for the tort of public nuisance.
(c) Other bases of liability
(i)Occupiers’ Liability Act, 1995
90. The plaintiff also claimed that the Council was liable under the provisions of the 1995 Act. He contended that the Council was an “ occupier ” of “ premises ”, which he claimed included the public road on which the concrete surround and cattle grid were located, and that the Council was liable to him either as a “ visitor ” or “ recreational user ”. While it was contended on behalf of the plaintiff that he was a “ visitor ” in the sense of being an “ entrant as of right ” under the 1995 Act to whom the common duty of care under s. 3 of the 1995 Act was owed, it was accepted that the plaintiff was more likely to be regarded as a “ recreational user ” to whom the duty provided for under s. 4 was owed (namely a duty not to injure the person intentionally or not to act with “ reckless disregard ” for the person).
91. The Council contended that it could have no liability to the plaintiff under the 1995 Act by reason of its capacity as a road authority. Alternatively, the Council contended that if the 1995 Act did apply, the plaintiff was a “ recreational user ” and that the only duty owed to it was not to act with “ reckless disregard ” for the person of the plaintiff.
92. Both parties relied on a considerable body of case law under the 1995 Act in support of their respective positions. However, in light of the conclusions which I have reached in relation to the plaintiff’s claims in negligence and in public nuisance, I do not find it necessary to deal with the plaintiff’s claim under this heading. I am reluctant to do so in circumstances where I have a considerable doubt as to whether the provisions of the 1995 Act can apply in the case of an action brought against a road authority in respect of an accident which occurred on the public roadway. I find it difficult to see conceptually how the road authority can be regarded as an “ occupier ” of a road (and features on a road, such as the cattle grid and concrete surround at issue in this case) in circumstances where the road is a public road. That is so notwithstanding that in the present case the Council, as the relevant road authority, is also the owner of the road. Once the road was designated as a public road (as the road here was so designated in 2011), I find it difficult to see how the Council could exclude or prevent members of the public from using the road. This inability to exclude persons from using the road, in my view, sits uncomfortably with the Council being an “ occupier ” of the road, notwithstanding that it is also the owner of the road. I note in passing that the position in England and Wales is that a highway authority is not regarded as the occupier of a public road or footpath ( Clerk & Lindsell on Torts (22nd ed., 2018) at para. 12-14). The case cited by the editors is Whiting v. Hillingdon LBC (1970) 114 S.J. 247. In Sydenham, Public Rights of Way and Access to Land (Jordans, 2013), the author states that “ because the public have a legal right to use the public right of way and neither the authority nor the land owner can exclude them”, the highway authority is not regarded as the occupier of the public road. The case cited for that proposition is Gautret v. Egerton (1867) L.R. 2 CP 371. In Stovin v. Wise [1996] AC 923, the House of Lords stated:-
“The position of the highway authority has no resemblance to that of an occupier of premises who is liable to persons who are invited or allowed to come onto the premises. The authority has no control over who uses the highway and the public use it as of right: McGeown v. Northern Ireland Housing Executive [1995] 1 AC 233. The authority is not an occupier of the highway: Whiting v. Hillingdon London Borough Council …”
93. It seems to me that a similar approach is likely to be taken by the courts in this jurisdiction and that once the road is designated as a public road it is difficult to see how the road authority can be regarded as an occupier of that road for the purposes of the 1995 Act. However, I am not making any definitive finding on that issue. It is best left to a case in which a decision on the point is necessary for the outcome of the case. That is not so here.
(ii)Roads Act, 1993(as amended)
94. Nor do not find it necessary to consider the claim made by the plaintiff arising from the alleged breach by the Council of s. 13 of the 1993 Act (as amended).Section 13 provides that the maintenance and construction of all national regional roads in an administrative county is the function of the relevant local authority for that county. Section 13(2) provides that it is a function of the relevant road authority to maintain and construct all local roads within its relevant area. This head of claim was not pushed strongly by the plaintiff and it is unnecessary for me to consider it any further in light of the conclusions which I have reached earlier.
(d) Contributory negligence
95. It is undoubtedly the case that the plaintiff had a duty to take reasonable care for his own safety when approaching the cattle grid on his bicycle. The plaintiff was under that general duty at common law. He was also subject to the duty arising under s. 67 of the 1993 Act (as amended). That section provides as follows:-
“67-(1) It shall be the duty of a person using a public road to take reasonable care for his own safety and for that of any other person using the public road.
(2) It shall be the duty of a person using a public road to take all reasonable measures to avoid—
(a) injury to himself or to any other person using the public road,
(b) damage to property owned or used by him or by any other person using the public road.”
As a user of the public road at the time of the accident, the plaintiff was subject to the duty of care provided for in s. 67. However, it seems to me that this section does no more than restate the ordinary duty to take reasonable care for his or her own safety for which every adult member of society is subject for (see for example: O’Flynn v. Cherry Hill Inns Ltd. t/a The Oliver Plunkett Bar [2017] IECA 211, per Irvine J. at para. 37; see also O’Donnell v. South Tipperary County Council [2017] IEHC 705, per Twomey J. at para. 9).
96. The Council has pleaded contributory negligence on the part of the plaintiff. Among the matters alleged by the Council to amount to contributory negligence by the plaintiff are his failure to dismount from his bicycle and to walk around the cattle grid and his failure successfully to negotiate the cattle grid. I have already concluded that the plaintiff was entitled to proceed on his bicycle over the cattle grid having done so successfully before. I have also concluded that the accident did not occur by reason of the plaintiff cycling either too quickly or too slowly over the cattle grid. However, while in my view the cause of the plaintiff’s accident was the sudden and unexpected drop encountered by the plaintiff as he cycled over the concrete surround or ramp or dome leading onto the cattle grid, I accept that it would have been open to the plaintiff to dismount and walk around the cattle grid in the small gap between the left hand pillar and the boulders and that if the plaintiff had cycled his bicycle over the middle or over the right side of the cattle grid, he would not have had to negotiate the sudden drop. It seems to me that in those circumstances there was an element of contributory negligence on the part of the plaintiff. I would assess the level of contributory negligence on the part of the plaintiff at 25%. It is certainly no more than that and there may be an argument for being slightly less than that. However, the justice of the case in the particular circumstances persuades me that the appropriate level of contributory negligence in the case is 25%.
B. Quantum
The Evidence: Quantum
97. The plaintiff himself gave evidence in relation to his injuries and the effect they have had. In addition, evidence was given by Mr. Lester D’Souza, consultant orthopaedic foot and ankle surgeon, who has been responsible for the ongoing care and treatment of the plaintiff in respect of his ankle injury and by Dr. Aideen Henry, consultant physician in orthopaedic and sports medicine. In addition to providing a number of reports, Mr. D’Souza and Dr. Henry gave evidence and were cross-examined on behalf of the Council. No medical expert was called to give evidence on behalf of the Council. However, the Council provided two medical reports from Prof. Eric Masterson, consultant orthopaedic surgeon, who examined the plaintiff on two occasions on behalf of the Council. Prof. Masterson was not called to give evidence.
(a) The Plaintiff
98. In brief, the plaintiff gave evidence that he was taken by ambulance to the Emergency Department of University Hospital Limerick following his accident. He was in extreme pain. He sustained a very serious fracture of his left ankle as well as ankle ligament rupture. He had screws and a plate inserted in his ankle. He remained in University Hospital Limerick for two days. He was in severe pain during that period. He was moved to Croom Orthopaedic Hospital for ten days. He was under the care of Mr. D’Souza. He was in a plaster cast and then a boot. The plaster cast remained in place for approximately three months. He required further surgery in late October 2014, to remove the screws and plate. He had several scars on his ankle from the surgical procedures. He was on heavy pain medication and in a lot of pain. He was on crutches and found using the crutches challenging and hurt his shoulder as a result. He was discharged home from Croom Orthopaedic Hospital after about ten days. He was looked after at home by his wife. However, he was unable to manage the stairs and his wife arranged a sleeping area for him in the sitting room on the ground level of their home. He remained there for several months and intends to make permanent changes to the layout of his house to enable him to continue sleeping downstairs.
99. Following the removal of the cast and subsequently the screws and plate, the plaintiff was left with some scarring which remains visible to date. He was required to attend the fracture clinic in the hospital every three weeks for a number of months. He underwent between ten and twelve sessions of physiotherapy in Ennis General Hospital for his ankle. About four or five months after the accident he moved from crutches to using two walking sticks. About a month or so later, he moved from two walking sticks to one stick. He found it necessary to use one walking stick to assist his movement for about two years thereafter. However, he still requires to use his walking stick occasionally.
100. The plaintiff was anxious to get back to work after his accident and did so in November 2014, while he was still using two walking sticks. He was given sedentary duties following his return to work and until his retirement in May 2015. He is still in pain, has difficulty sleeping and requires ongoing pain medication and medication to help him sleep. He has received a number of injections into his ankle joint carried out by Mr. D’Souza. They have not resolved his pain. He explained that even in court while awaiting to give evidence and while giving his evidence, his left ankle was throbbing and felt hot and he found it necessary to take pain medication. He continues to walk with a slight limp. I observed this myself during the course of the trial.
101. The plaintiff explained that he had many and varied plans for his retirement in May 2015 (almost four years ago). He hoped to travel extensively with his wife including visiting his brother in Thailand. He hoped to continue with his cycling and to undertake mountain walking and trekking. He also hoped to pursue his interests in fishing and birdwatching. He has been unable to fulfil these ambitions for his retirement as a result of the ongoing symptoms of his ankle injury. He remains on painkillers and sleeping tablets to assist him sleeping.
102. While accepting that he had a complicated medical history, having had heart trouble in the past, (and other medical issues which are listed at para. 3 of the plaintiff’s replies to particulars dates 20/6) the plaintiff explained, under cross-examination, that he had been able to cope with all of those issues throughout his life, that he had held down a good job and had reared his family. He had made retirement plans despite his medical issues and was confident that they would not prevent him from pursuing those plans, were it not for the accident. He described being in “ reasonably good health ” at the time of the accident. I accept the plaintiff’s evidence in its entirety. I had the opportunity of observing the plaintiff during the course of his evidence and during the five days or so of the hearing. I am satisfied that the plaintiff is a completely honest and truthful witness, that his life has been severely affected as a result of the injuries sustained in the accident and that he continues to suffer from the effects of the injury and will do so for the foreseeable future.
103. The plaintiff explained that he had been advised that it would be necessary for him to undergo further surgical intervention as conservative methods of treatment (namely, the ankle joint injections which he has received from Mr. D’Souza) have not been successful. The plaintiff has been advised that he will require either a fusion of his ankle joint or an ankle joint replacement. He has been unable to decide which of these two options to take as he has been putting off what he has found to be a very difficult decision. These issues were addressed in further detail in Mr. D’Souza’s evidence.
(b) Dr. Aideen Henry
104. Dr. Henry gave evidence on behalf of the plaintiff. She prepared reports for the plaintiff’s solicitors on 31st August 2015, 24th September 2015, 15th August 2016 and 3rd September 2018. She also wrote to Mr. D’Souza on 15th August 2016, referring the plaintiff back for further review in light of the plaintiff’s ongoing difficulties. She sought Mr. D’Souza’s views on a possible fusion or ankle joint replacement for the plaintiff’s persistent symptoms. Dr. Henry, in her reports and in her evidence, described the plaintiff’s fracture as being a “ nasty fracture” which required open reduction and internal fixation. Following her review of the admission notes and the plaintiff’s records, she described the plaintiff’s ankle injuries as being “ a fracture of the posterior malleolus along with a rupture of the syndesmosis with talar shift and a fracture of the proximal fibula”. This type of fracture is known as a maisonneuve fracture (named after the French surgeon, Jules Germain François Maisonneuve). The fracture involves several of the bones in the ankle as well as ligament rupture. When the plaintiff saw Dr. Henry in August 2015, he had deep pain in the outer aspect of his left ankle. He had pain on ascending and descending stairs and after a short walk. He had pain on trying to cycle. He had pain using the clutch of his car and was told that he may have arthritis in the joint. He was continuing to take painkillers on an ongoing basis. When Dr. Henry examined the plaintiff, she noted that he was walking with a slight limp. She also noted the surgical scars. On the lateral ankle there was a 6cm by 0.3cm surgical scar over the lateral malleolus. On the medial ankle, there were two 0.3cm circular scars. The range of motion testing showed that dorsiflexion was normal but that plantarflexion was reduced to 50% of normal. The plaintiff had tenderness all along the anterior and lateral joint line of the ankle joint. Dr. Henry opined that the plaintiff was continuing to suffer from ongoing pain and restricted movement from the fracture of his left ankle. She referred him for x-rays to establish which bones were fractured and to establish whether osteoarthritis was present.
105. In an addendum to her report dated 24th September, 2015, Dr. Henry outlined the details of the plaintiff’s fracture as noted earlier. She further stated that those details indicated that the ankle injury was “ quite severe and that the ankle joint was disrupted with a fracture” . She explained that the fracture was treated with internal fixation to realign the joint and to immobilise the fragments to enable healing to take place. She noted that there was no current evidence of osteoarthritis. Her belief was that because the ankle joint was disrupted by the accident and required internal fixation to realign it, the plaintiff was at an increased risk of osteoarthritis in the future.
106. Dr. Henry saw the plaintiff again on 15th August, 2016. She noted that at that point the plaintiff could walk up to 200 metres before the pain and the swelling in his ankle increased. The plaintiff’s complaints at that time were that he felt that his ankle was the same as before. However, the pain was more pervasive and was lateral with a constant ache. The pain was worse if he walked. He reported that he would get a very sharp pain when he used the clutch in his car. The plaintiff’s ankle was swollen and it felt hot at night and kept him awake with the pain. The plaintiff was no longer cycling because of the pain and also continued to have pain using the stairs. The plaintiff was on two to four painkillers a day at the time. On her examination of the plaintiff, she noted that the plaintiff walked with a limp. She noted that the scars had faded further so that the lateral 6cm scar was white and very faint by that stage. The medial scars were no longer visible. She further noted that the plaintiff’s range of movement in his left ankle had reduced further with reduced dorsiflexion and plantarflexion and the plaintiff had tenderness of the anterolateral joint line. Dr. Henry opined that the plaintiff was continuing to suffer from ongoing pain and restricted movement dating from the fracture of the posterior malleolus of his left ankle. As the plaintiff’s pain had increased and his movement had reduced, Dr. Henry felt that an opinion should be sought from the plaintiff’s foot surgeon, Mr. D’Souza, with a view to considering a possible ankle joint replacement or ankle joint fusion. She noted that while a joint fusion would restrict the movement of his ankle further and would lock the ankle joint, it would relieve him of pain. Dr. Henry then referred the plaintiff back to Mr. D’Souza in August, 2016.
107. Dr. Henry saw the plaintiff again on 3rd September, 2018. By that stage, the plaintiff had received a number of ankle joint injections from Mr. D’Souza, the first of which gave him some relief but the second made no difference. The plaintiff was still not cycling as his ankle was too sore. He could not walk for more than 300 metres and even then could only do so with the assistance of painkillers. On examination, Dr. Henry noted that the lateral scar was still visible. The plaintiff’s left ankle continued to swell and was sore every day. He explained that it was sore at rest and got worse when walking. The plaintiff was continuing to use a stick when walking on steps. His ankle would wake him up at night with the pain. He continued to take pain medication. On her examination, Dr. Henry noted that the plaintiff walks with a limp and had a flat footed gait. His movement was restricted as before, especially dorsiflexion. The plaintiff was tender over the anterolateral joint line and the lateral scar was unchanged from the last time. Dr. Henry’s opinion following her examination on that occasion was that the plaintiff continued to suffer from chronic pain and restricted movement from the fracture of his left ankle. She noted that the ankle had not responded to two injections so that it was likely that the plaintiff would need an ankle joint fusion in the future. A joint fusion would restrict his movement further but would reduce the pain and the plaintiff would also be left with a limp.
108. On cross-examination, Dr. Henry was asked about whether the plaintiff had pre-existing arthritis in the left ankle. She explained that the x-rays which she had seen from September 2015, did not show any arthritis. However, it was put to her that Mr. D’Souza’s report from December 2016, indicated that initial radiographs of the plaintiff’s left ankle (from August 2014) revealed osteophytic lipping over the anterior tibia and that it was most likely that the plaintiff had asymptomatic early evidence of arthritis in his left ankle. Dr. Henry had not seen those earlier x-rays and felt that the conclusion in relation to the presence of asymptomatic early evidence of arthritis was debatable in that osteophytes on their own did not necessarily indicate the presence of osteoarthritis. Aspects of Prof. Masterson’s reports were put to Dr. Henry but she confirmed that the evidence she had given represented what she had found on her examination of the plaintiff with particular reference to the restricted movement which she observed in the plaintiff’s left ankle. She confirmed that whenever she saw the plaintiff, he was continuing to complain of ongoing pain and that the plaintiff had a limp. Dr. Henry confirmed that in her view the plaintiff was an honest and accurate historian. I found Dr. Henry’s evidence convincing and persuasive.
(c) Mr. Lester D’Souza
109. Mr. D’Souza then gave evidence on behalf of the plaintiff. He provided two reports. The first was dated 8th December, 2016, following his examination of the plaintiff on 5th December, 2016. The plaintiff was under Mr. D’Souza’s care in University Hospital Limerick and in Croom Orthopaedic Hospital.
110. In his first report, he described the plaintiff’s injury to his left ankle and the surgical procedure to fix the fracture and subsequently to remove the screw and plate. At the request of Dr. Henry the plaintiff was referred back to Mr. D’Souza in September 2016. Mr. D’Souza arranged for the plaintiff to have a steroid injection of the ankle. When the plaintiff saw Mr. D’Souza on 5th December, 2016, he was complaining of constant aching and a swollen left ankle which was affecting the plaintiff’s activities in daily living. The plaintiff also had a hot feeling in his ankle at night. On examination of the plaintiff, Mr. D’Souza noted that there was mild swelling of the ankle with good dorsiflexion and plantarflexion and pain on extremes of movement. The tendons were in good working order with no distal neurovascular deficits. Mr. D’Souza commented on the radiographs dated 3rd August, 2014. They revealed a laterally subluxed talus with an increased medial capsular suggesting deltoid ligament injury. There was also high fibular and spiral fracture along with a 10% fracture of the posterior malleolus which was undisplaced. There was a large osteophyte in front of the distal tibia suggesting some degenerative changes in the ankle although the remainder of the ankle itself did not reveal any arthritis. Radiographs on 4th August, 2014 revealed a well reduced ankle. Radiographs on 21st August, 2014 revealed two syndesmotic screws across a three-hole lateral plate with reduced posterior malleolus. Radiographs of the left ankle in September 2016 revealed a normal ankle with evidence of very minimal osteoarthritis. A MRI scan of the left ankle dated 19th September, 2016 revealed degenerative change not only in the ankle but also in the inferior syndesmosis. Mr. D’Souza arranged for the plaintiff to have an injection into his left ankle in the near future. Mr. D’Souza explained that the fracture had healed very well but that the plaintiff had some symptoms suggestive of arthritis. Initial radiographs revealed osteophytic lipping over the anterior tibia but it was otherwise a normal looking joint. He explained that it was most likely that the plaintiff had asymptomatic early evidence of arthritis in his left ankle, sustained a traumatic injury to the ankle and by that stage had symptoms and signs of early arthritis. He recommended a course of intra-articular injections by way of treatment and felt that that should help to control his symptoms in the future.
111. However, in light of the plaintiff’s ongoing difficulties, he was seen again by Mr. D’Souza in December 2017. Mr. D’Souza reported on 5th January, 2018. At that stage, the plaintiff was complaining of ongoing pain in his left ankle and swelling. The pain existed at rest as well as on walking and standing. It was affecting the plaintiff’s lifestyle and he was unable to walk for any length of time or to cycle or run. He continued to have a difficulty coming down the stairs. On examination, Mr. D’Souza noted that the plaintiff had a puffy left ankle. Dorsiflexion was to ten degrees and plantarflexion was to forty degrees. Mr. D’Souza noted again the radiographs referred to in his earlier report. However, in addition, radiographs dated 19th December, 2017 revealed evidence of mild to moderate osteoarthritis predominately in the tibiotalar joint. Mr. D’Souza decided to arrange for another intra-articular injection of the left ankle. While noting that the fracture itself had healed very well, Mr. D’Souza observed that the plaintiff by that stage had symptoms suggestive of arthritis. The MRI scans of the left ankle from September 2016, revealed degenerative changes in the ankle and syndesmosis. Radiographs dated 30th September, 2016 revealed mild arthritis in the tibiotalar joint. The most up to date radiographs (from December 2017) revealed some advancement of osteoarthritis from a mild to moderate degree. There was sclerosis of the adjacent joint surfaces of the talus and tibia. Mr. D’Souza felt that the plaintiff would benefit from a repeat injection for relief. He explained that it was more likely that the plaintiff had asymptomatic early arthritis in the left ankle and then sustained a traumatic injury leading to symptoms suggestive of early arthritis. He felt that the intra-articular injury sustained at the time of the lateral subluxation of the talus, deltoid ligament injury and syndesmotic injury also contributed to the arthritis in the tibiotalar joint. He explained that while many patients could manage with intermittent intra-articular injections of steroid, with advancement the plaintiff may eventually require an ankle fusion or ankle joint replacement if he continued to have night pain and if his daily activities were significantly affected.
112. In his direct evidence, Mr. D’Souza referred to the development of the degenerative change in the plaintiff’s left ankle between September, 2016, and December, 2017. He noted progressive degeneration of the ankle joint. In terms of the options for the plaintiff, given his age, Mr. D’Souza stated that the plaintiff would require either a fusion of his ankle joint or an ankle joint replacement. Fusion would involve stiffening the joint so that it could not move and cause pain. However, one consequence of an ankle fusion could be that other joints could start wearing out because of the stiffness in the ankle. An ankle replacement would allow movement. On balance, Mr. D’Souza’s preference would be for an ankle joint replacement. This would remove all arthritic components. However, the downside would be that there is a failure rate of about 20%. In other words, 20 out of 100 ankle joint replacements fail within ten years. The plaintiff would require further pain medication. If the plaintiff did not take one of these options, the ankle would remain painful, he would experience pain in his ankle at night and would be unable to get a good nights sleep. Mr. D’Souza stated that the plaintiff would need to pursue one of these two options.
113. Mr. D’Souza was cross-examined in relation to aspects of Prof. Masterson’s report and some differences between their respective reports, particularly, in relation to the range of movement noted by each. There was not a great deal of difference between Mr. D’Souza and Prof. Masterson. However, Mr. D’Souza did not agree with Prof. Masterson’s view that the pain level, which the plaintiff would continue to suffer from, would be at a “ nuisance level” rather than being “ seriously disabling”. Mr. D’Souza stated that he was giving his views as a foot surgeon. Mr. D’Souza confirmed that the plaintiff’s normal activities have been significantly affected by his injuries. He confirmed that while there was pre-existing asymptomatic early evidence of arthritis, the nasty ankle injury sustained by the plaintiff had led to the development of the osteoarthritis. He described what he saw in the most recent x-rays of the plaintiff’s left ankle as being a “ dead ringer for arthritis ”. Mr. D’Souza did not waiver from the views expressed in his reports. Further, he confirmed that he had tried conservative pain management but that that had not succeeded. He was not challenged on his view that the plaintiff required either a fusion or an ankle joint replacement. I accept Mr D’Souza’s evidence in full.
Findings of Fact on Quantum Issues
114. As I indicated earlier, I accept the plaintiff’s evidence in relation to his injuries, his ongoing symptoms and the effect they have had on his daily life. I found the plaintiff to be a truthful and honest witness who did not exaggerate the impact of the injuries upon him. I had the opportunity of observing the plaintiff during the course of the hearing. This confirmed my assessment of the veracity of the plaintiff’s evidence.
115. Having assessed the plaintiff’s evidence and the evidence of the medical witnesses referred to above, I make the following findings.
116. The plaintiff suffered a very serious and nasty fracture of his left ankle. The fracture is one known as a Maisonneuve fracture. It involved a fracture of a number of the bones in the plaintiff’s ankle (the posterior malleolus and the proximal fibula) as well as a rupture of the syndesmosis with talar shift. The plaintiff required a significant surgical operation to fix the bones and to repair the ligament damage with screws and a plate. Because of the intersection of the various bones and ligaments, I accept Mr. D’Souza’s description of the operation as being like putting a jigsaw together. The plaintiff experienced very significant pain at the time of the accident and subsequent to it. The plaintiff was in a cast for several months which was then replaced by a boot. The plaintiff was in hospital for about two weeks following the accident and was on constant pain relief. The plaintiff required further surgery to remove the screw and plate from his ankle on 29th October, 2014.
117. The plaintiff underwent ten to twelve sessions of physiotherapy on his ankle. He was on heavy pain medication and remains on pain medication to date. The plaintiff also continues to require medication to assist him sleeping due to the pain in his left ankle at night.
118. The plaintiff was on crutches for approximately four months following his operation. He then required the assistance of two walking sticks to walk for a further month or so and thereafter required the assistance of one stick to walk. The plaintiff still uses the walking stick from time to time.
119. The plaintiff’s home life was severely disrupted as a result of the accident. He required considerable assistance from his wife to assist him about his daily duties. The plaintiff had and continues to have difficulty ascending and descending stairs. The plaintiff’s sleeping arrangements were altered as a result of his inability to ascend and descend the stairs. It is the plaintiff’s intention to make permanent changes to his home to enable him to sleep at ground level. The plaintiff was very anxious to return to work and did return to work in November, 2014. His employer, the HSE, was able to facilitate the plaintiff’s return to work by allowing him to work on a sedentary basis. The plaintiff retired in May 2015. The plaintiff had very extensive and ambitious retirement plans which included foreign travel and mountain walking and cycling. He has been unable to pursue those plans. While the plaintiff had a complicated medical history prior to the accident, I am satisfied that the plaintiff was coping with his medical conditions and would have been able to pursue his plans for retirement were it not for the accident.
120. The plaintiff has ongoing problems with his left ankle. He continues to be in pain. He continues to have swelling on his left ankle. His ankle feels hot from time to time (including while he was in court). The plaintiff continues to have difficulty sleeping. Notwithstanding conservative measures in the form of intra-articular injections performed on two occasions by Mr. D’Souza in 2016 and 2018, the plaintiff’s symptoms have persisted. The injections would not have been a pleasant experience for the plaintiffs.
121. I accept the evidence of Mr. D’Souza that the osteophytic lipping over the anterior distal tibia seen on the x-rays at the time of the accident indicate that the plaintiff had asymptomatic early arthritis in the ankle. However, it was just that, asymptomatic. I accept Mr. D’Souza’s evidence that the traumatic injury sustained by the plaintiff brought on symptoms of early arthritis and subsequent scans and x-rays have revealed significant degenerative change in his left ankle and evidence of mild to moderate osteoarthritis predominantly in the tibiotalar joint. I am satisfied on the evidence that it is likely that these degenerative changes were caused as a result of the traumatic injury sustained by the plaintiff when he fractured his ankle in the fall off his bicycle in August 2014. I entirely accept Mr. D’Souza’s evidence in that regard.
122. I am satisfied that the conservative treatment given to the plaintiff in the form of the intraarticular injections into his left ankle have not resolved the plaintiff’s symptoms. I accept that the plaintiff has ongoing, significant and debilitating pain. I also accept that the plaintiff continues to experience swelling of his left ankle. These ongoing symptoms have continued to disrupt and effect the plaintiff’s daily life and activities. In this regard I accept the plaintiff’s evidence and that of Dr. Henry and Mr. D’Souza. While I have been provided with medical reports from Prof. Masterson on behalf of the Council, I have not had the benefit of hearing Prof. Masterson giving evidence or being cross examined. I do note however that Prof. Masterson describes the plaintiff’s injury as a “ nasty fracture to his left ankle with a rupture of the medial collateral ligament ” and a “ nasty injury”. I also note that Prof. Masterson observed in his first report that the plaintiff would remain at moderate risk of post-traumatic arthritis. I accept that that is what occurred. I do not accept Prof. Masterson’s evidence that the ongoing pain being suffered by the plaintiff is properly described as “ intermittent niggling discomfort ” or at a “ nuisance level ”. I accept the evidence of the plaintiff and of Dr. Henry and Mr. D’Souza that it is of a much more significant nature and is disabling. While Prof. Masterson notes at the conclusion of his second report in October 2017 that it was merely a possibility rather than a probability that the plaintiff would develop arthritic change in the ankle in the future, I accept Mr. D’Souza’s evidence that arthritic change has occurred and that this was caused by the traumatic injury sustained by the plaintiff when he fell from his bicycle in August 2014.
123. I accept on the evidence that the plaintiff will require either a fusion of his left ankle or an ankle joint replacement. A fusion would result in a stiffening of the joint and would mean that the plaintiff would cease to experience pain. However, his joint will not move. That may create stress on other joints. I also accept the evidence of Dr. Henry that if the plaintiff undergoes a fusion, he will be left with a limp, will be unable to run or take quick steps and his gait will be permanently affected. I note Mr. D’Souza’s marginal preference for the plaintiff to undergo an ankle joint replacement. While this will remove the arthritic components from his ankle joint, it will require a significant further surgical intervention which itself will involve pain and discomfort for the plaintiff. I also note that there is a 20% chance of the joint replacement failing within ten years. Presumably if that happened it would require a further joint replacement. The plaintiff would also require pain medication in that event. There was no evidence to contradict the evidence of Mr. D’Souza that the plaintiff will require either a fusion of his left ankle or an ankle joint replacement. I also accept Mr. D’Souza’s evidence that if the plaintiff does not take one of these options, he will be left with ongoing pain and difficulty in sleeping at night.
Relevant legal principles on quantum
124. In light of my finding on liability, I must assess general damages in respect of the plaintiff’s pain and suffering to date and into the future. The plaintiff’s symptoms are ongoing and he will require further intervention whether by means of a fusion of his ankle or an ankle joint replacement. I must also take account of the fact that I have concluded that the degenerative disease now present in the plaintiff’s ankle joint was caused by the traumatic injury sustained by the plaintiff in the accident, the subject of these proceedings.
125. In McWhinney v. Cork City Council [2018] IEHC 472, I set out what I believed to be the correct approach to be taken in relation to the assessment of general damages to date and into the future. I refer in this context to para. 57 — 61 of that judgment.
126. First, I must bear in mind that the primary objective of an award of damages is, as best the court can do, to put the plaintiff back in the position he was in before he sustained the injuries in the accident for which I have found the Council liable. Recognising the imprecise and imperfect nature of that exercise, Irvine J. in the Court of Appeal in Nolan v. Wirenski [2016] IECA 56, [2016] 1 I.R. 461, stated that the true purpose of an award of damages is “ to provide reasonable compensation for the pain and suffering that the person has endured and will likely endure in the future”.
127. Second, recognising the vast range of injuries which a person may suffer as a result of an accident, Irvine J. stated in Nolan, in a passage with which I am in full agreement, as follows:-
“ 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 .” (per Irvine J. at para. 33)
128. I acknowledge and agree with the further observations of Irvine J. in the Court of Appeal in Nolan, where she observed that Denham J. in the Supreme Court advised in M.N. v. S.M. [2005] IESC 17, [2005] 4 I.R. 461, that:-
“… damages can only be fair and just if they are proportionate not only to the injuries sustained by [the] 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 [Denham J.] stated at para. 44, of her judgment, ‘there should 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. … 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.”
129. Third, I have also taken into account and applied the guidance given by Irvine J. in the Court of Appeal in Shannon v. O’Sullivan [2016] IECA 93:-
“‘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?”
130. I have also seen the recent judgment of Barton J. in Douglas v. Michael Guiney Limited [2019] IEHC 301, which was delivered after the case was heard. At paragraphs 78 and 79 of his judgment in that case, Barton J. set out the applicable legal principles to the assessment of damages. I completely agree with what Barton J. stated in those paragraphs. The principles outlined by the court in that case are consistent with the principles set out by the Supreme Court and the Court of Appeal in a series of decisions which Barton J. himself had recently reviewed in B.D. v. Minister for Health [2019] IEHC 173.
131. I have outlined earlier, the plaintiff’s evidence and the evidence of Dr. Henry and Mr. D’Souza concerning the nature of the injury sustained by the plaintiff, the hospitalisation and surgical intervention required, the ongoing pain and discomfort suffered by the plaintiff, the treatment administered to the plaintiff including physiotherapy, pain medication and intraarticular injections into his left ankle joint, the fact that the plaintiff required crutches and then two walking sticks, and now requires one walking stick from time to time, the changes with the plaintiff had to make to his living and sleeping arrangements at home and the severe disruption to the plaintiff’s retirement plans. I have also outlined the full extent in the very serious fracture sustained by the plaintiff and the ongoing symptoms which the plaintiff is experiencing. It is also extremely significant in this context that the plaintiff will require either a fusion of his left ankle (with the consequences which that procedure will give such as a permanent limp and altered gait) or an ankle joint replacement (with all that would go with such a procedure and the risk that it may fail). Finally, in this context, I have taken account of the development of arthritis in the plaintiff’s left ankle joint. While I have accepted that Mr. D’Souza’s evidence is more than likely that the plaintiff had a symptomatic early arthritis in his left ankle, the traumatic injury sustained by him has caused arthritis to develop in his left ankle. As of December 2017, x-rays disclosed mild to moderate osteoarthritis in his ankle joint.
132. Fourth, I am required by s. 22 of the Civil Liability and Courts Act, 2004 (as amended), to have regard to the (revised) Book of Quantum (2016). In particular, I have had regard to the information provided at Section 5F in respect of ankle soft tissue injuries and fractures. It will be recalled that the plaintiff suffered a very serious fracture of the post malleolus with a rupture of the syndesmosis with talar shift and a fracture of the proximal fibula. There were, therefore, soft tissue and fracture injuries. I am satisfied that the injuries of soft tissue (being the rupture of the syndesmosis) and the fracture fell within the “ severe and permanent ” categories set out in s. 5F of the Book of Quantum. However, in my view, the full extent of the plaintiff’s injuries and the ongoing nature of those injuries together with the certain requirement for further intervention in the form of a fusion or ankle joint replacement is not fully reflected in the injuries described in s. 5F
Conclusion on Quantum
133. In conclusion, having regard to the findings of fact which I have made on the issues relevant to quantum and the legal principles which I have set out, I consider that a fair, reasonable and proportionate sum by way of general damages to compensate the plaintiff for his injuries to date is €95,000. Having regard to the fact that the plaintiff has ongoing problems and will require further intervention in the form of a fusion or ankle joint replacement, I consider that a fair, reasonable and proportionate sum by way of general damages to compensate the plaintiff for the pain and suffering he will experience into the future is €45,000. The total sum for general damages will be €140,000, before deducting 25% in respect of the contributory negligence I have found against the plaintiff.
Overall Conclusions
134. In summary, therefore, I have found the Council liable to the plaintiff for the injuries the plaintiff sustained on 3rd August, 2014, when he fell from his bicycle while cycling over a concrete surround or dome or ramp at a cattle grid on a public road in Clonmoney South, Shannon, Co. Clare. I have found that the state of the concrete surround at the cattle grid amounted to a danger or hazard for persons such as the plaintiff using the road. I have concluded that the Council is liable in negligence in its capacity as the road authority. I have concluded that the state of the concrete surround at the cattle grid was caused by misfeasance rather than nonfeasance in the initial construction or installation of the concrete surround at the cattle grid by the Council’s predecessor in title, Shannon Development, who transferred the road including the cattle grid and concrete surround to the Council in 2004. There were defects in the construction and installation of the cattle grid. Those defects were present at the time the Council designated the road as a public road in 2011. I have also found that the condition of the concrete surround at the cattle grid amounted to a public nuisance which was created by the Council’s predecessors in title and continued or adopted by the Council. I have not found it necessary to express any concluded view on the possible liability of the Council under the Occupiers’ Liability Act 1995, or under the Roads Act 1993 (as amended). Difficult legal issues arise in relation to those heads of claim which it is not necessary to resolve in this case.
135. I have concluded that the plaintiff is guilty of contributory negligence which I have assessed at 25%.
136. I have assessed general damages for pain and suffering to date at €95,000 and general damages for pain and suffering into the future of €45,000. The total, therefore, damages for pain and suffering will be €140,000 before the appropriate deduction for the contributory negligence of the plaintiff. Special damages have been agreed at €11,206.50. This does not include any loss of earnings as there was no such claim. A deduction of 25% must be taken from this sum also.
Award
137. In conclusion, therefore, taking account of the 25% for the plaintiff’s contributory negligence, I award general damages (to include damages to date and into the future) of €105,000. I award special damages in the sum of €8,404.87.
138. Accordingly, there will be a decree in favour of the plaintiff in the sum of €113,404.87.
139. Finally, I thank counsel and solicitors for both sides for their considerable assistance in this case, which included the provision of numerous cases and authorities at short notice, for which I am very grateful.
Deirdre O’Donnell v Declan Morrissey and Damien Morrissey and Motor Insurers Bureau of Ireland
2015 2161 P
High Court
17 May 2019
unreported
[2019] IEHC 344
Ms. Justice O’Hanlon
May 17, 2019
JUDGMENT
Background
1. This case concerns a road traffic collision (RTC) which occurred on the Cloneen – Killusty Road, Co. Tipperary at about midday on 11th August, 2013. The plaintiff was in her own motor vehicle, had a front seat passenger and her four-year-old son strapped into the back of the vehicle. Declan Morrisey, son of the named owner of the second vehicle Damien Morrisey, was driving alone and uninsured in the vehicle when the accident occurred. A full defence is pleaded asserting that the plaintiff was on the wrong side of the public highway at the time the accident occurred and also an allegation of speed is made.
The Collision
2. The plaintiff observed the defendant’s vehicle coming towards her down the middle of the road driving at between 30km/ph and then later 10 to 15 km/ph. He did not slow down and she pulled her own vehicle into the left hand side and went very slowly. The defendant vehicle glanced along the side of her vehicle and the rear right wheel of her car bore the brunt of the impact. The force of the impact shunted the plaintiff’s car further into the ditch whereupon it rebounded off a stone pillar.
3. The plaintiff got out of her motor vehicle and retrieved her son, through the driver’s door. The defendant apologised to her for what had happened. The defendant (who had previously lost an arm explained that his prosthetic arm had become stuck in the steering wheel, which was an adjusted steering wheel for a disabled driver. He asked the plaintiff not to call the gardaí that he would buy her a new car and he admitted at the scene that he didn’t have a valid policy of insurance.
4. The plaintiff telephoned her partner who took both herself and her son home and later to hospital in Clonmel. The plaintiff underwent an x-ray and had limited recollection of going to hospital. She also began to experience significant discomfort in her neck.
5. The plaintiff freely admits to having had prior back pain and to having had a prior MRI scan which showed degeneration of the spine and bulging discs.
6. The plaintiff had neck difficulties and attended her GP, Dr Rochford, in Clonmel and was referred to a Mr. Molloy, Rheumatologist. She was later referred to Mr. Kaar, Neurologist, in Cork. She underwent further MRI scans and was found to have oedema at the C2, C3 level. She was treated with physical therapy rather than with physiotherapy.
Impact on Work
7. Prior to this accident, the plaintiff farmed 150 animals and she also used to have dog kennels. She said that she doesn’t do the dog kennelling as much now and that she uses grass feed for the cattle at this point and she said she has a new man working for her now who brought in an environmental approach for hedging. She said she has 165 acres, all of which she farms and she has contractors when she needs them. She said that she worked with sucklers and dry stock. The invoice figures for Mr. Spratt included €4,269.87 for the invoice dated 23rd December, 2013, €3,064.50 for the invoice dated 16th June, 2014 and €749.10 for the invoice dated 22nd December, 2014. She also claims a further €700 to Mr. Desmond for the same type of work and she said she doesn’t get the VAT back. The items of special damage amount to €12,069.
8. She said she can once again do the calving herself having adapted to a different system. She said that she has followed the medical advice to maintain neck exercises, that the pain is not constant but that there is some pain and that physiotherapy helps.
Collision Evidence
9. The plaintiff’s partner returned to the scene the following day and took some photographs. There were black curved skid marks on the road left by the defendant as he impacted with the plaintiff’s vehicle.
10. The Defendant’s vehicle ended up behind her vehicle on her side of the road and he ended up on the ditch on her side of the road.
11. In her evidence she described the weather at 1pm on that August day. She was then referred to photographs taken by her engineer, photographs one to five which are taken from the angle of the plaintiff driving away from the photograph. The plaintiff agreed under cross-examination that the road was narrow and twisty but she said that two cars can easily pass on it. She reiterated that she saw the defendant’s vehicle coming and that she gave him a chance to go back to his own side of the road. She said he took her wing mirror off and that she was almost stopped while tight to the ditch but that he hit her car. The plaintiff said that the defendant’s motor vehicle was nosed into the ditch after this accident. The plaintiff said that the defendant told her that he could have killed her child and he had admitted this at the scene. He also said he did not want the gardaí involved because he had a problem with his insurance. The plaintiff’s impression was that as the defendant’s vehicle approached her he picked up speed and accelerated the closer he came. She said she saw him coming around the bridge. Her passengers were out on the road but she said she didn’t actually see them get out of the car.
12. With reference to the assertion that a third vehicle, a jeep, passed on the inside of this, the plaintiff argued that she said there was no way any vehicle could get inside her car.
13. The plaintiff said that she felt anxious, that the defendant came from nowhere and was out of control. The plaintiff was recalled later and said she had no recollection of a jeep approaching. She said that her car was a write-off and a jeep would easily have been able to pass her car on the outside as she was already in the ditch. Her car couldn’t have been out on the road and the only reason that it could be on the road would be the severity of the impact, because the defendant’s vehicle may have pushed it. She completely denies the defence claim that her vehicle was out on the wrong side of the road.
14. The plaintiff said that while pregnant she put on a lot of weight and that when she had her baby her lower back was giving her such trouble that she could not lift her baby. She agreed that her back had been a bit sore before that point in time. The plaintiff was treated with muscle relaxants then physiotherapy after treatment with tablet medication.
15. It was put to her that her own passenger sued her in the Circuit Court and she said her passenger took the case against her as she had an insurance policy and as the defendant was uninsured.
16. It was put to this witness that under cross-examination in the Circuit Court her passenger said that she was able to open her passenger door wide and get out of the car. This witness said that the passenger was handed a set of photographs in the Circuit Court showing two cars which were not their cars and that the questions were designed to confuse her. She said she was asked several times, told that she got out the door of the car but the plaintiff said that she was already on her side of the road and she went further into the ditch and she couldn’t have gone in any further. In answer to the contention put to her that her own passenger said she swerved to the left when she saw the other car. She said she was on the edge of the left hand side of the road and she was not on the verge before she moved in further in an attempt to avoid the defendant.
17. The plaintiff said that she works with dogs and has nine kennels but she now does this work on a much smaller scale. She said bending down to put leads on the dogs was a problem and that power hosing the kennels is a problem.
18. The plaintiff gave birth to her child in 2009 and said she had a long history of back pain and suffered fluid retention and weight gain during the pregnancy. Her GP found her to be stiff and referred her to Dr. Murray for an MRI as well as referring her to physiotherapy and a pain specialist. She said she was breast feeding her baby, she had difficulties at that time and that the first six months of the baby’s life she found it very hard to hold the baby.
19. The Plaintiff went on to say that she had had problems before the birth but that they were minimal. It was pointed out to this witness that in her replies to particulars it was indicated on her behalf that since 2001 she had had a problem with back pain and had significant problems after the birth of her child. The plaintiff said that the back pain post the birth lasted for nine months.
The Evidence of the Plaintiff’s Engineer
20. Mr. Fogarty inspected the site on 17th December, 2013 when he took photographs; he said that there was a bend in photograph seven showing the locus of the accident. He referred to photograph eleven which showed a pier in the ditch 1ft 5 inches tall and he said that the defendant’s car was 1.74 metres wide, the roadway was 4.7 metres wide and he said that the plaintiff’s car brings that up to 1.3 metres.
21. This witness said that the damage commenced on the plaintiff’s side of the road and there was significant damage to her back axel and to the back wheel on the driver’s side as well as to the back left door.
22. Mr. Fogarty was shown “a loose” set of photographs which were taken by Mr Ger Kennedy. Mr. Fogarty said he did see some of the photographs before but, not those of the car. He went on to say that he did report seeing them, and that the first time he saw those loose photographs was the previous day. He had done his inspection the previous December. This witness agreed that the locus was described roughly similarly by both engineers. Mr. Fogarty referred to his photograph 5 and he said the bridge was clear at twenty metres but he said the bridge was not in view in photograph four at 35 metres. He said half way would be 27.5 metres with the bridge coming into view. This witness said that his own photograph 7 shows 90 metres from the end of the bridge on his side and his estimate of the average differences at 20km per hour for the plaintiff and at 65km per hour for the defendant. In terms of the speed, the average distances would be 27.5 for the plaintiff and 90 for the defendant. Alternatively, if the plaintiff was going at 25km per hour as an average to cover the 27 metres; the defendant, to cover the 90 metres, would have to be going at a speed of 82km per hour.
23. It is taken that there was a 45 metre sight line available to both vehicles and a minimum sight distance on the bend. This witness, when asked what he thought of the suggestion that both of them were going slower than suggested, said it was not a minor impact and there was significant impact to the plaintiff’s vehicle, he also agreed that the defendant was coming into another series of bends.
24. With reference to images four and five of the axel photographs, this witness agreed that the main impact was to the rear wheel and to the bumper of the plaintiff’s car, but he also stated that it started at the start of the driver’s door and that there was glancing effect on the door.
25. In answer to the suggestion that it was an oblique impact he agreed that it was at an angle to each other in terms of the two vehicles and that the plaintiff had just completed the bend at the point of impact. In terms of three possible scenarios on liability, this witness said that the first was that the defendant was on his correct side and therefore not liable for this accident at all. The second scenario was that the plaintiff was on her incorrect side but was angling back onto her correct side. The third scenario was that the plaintiff was on her correct side but that the defendant came towards her and she angled to the left because of the danger.
26. This witness said that the plaintiff turned left into the ditch and he doesn’t accept that she was well off the road. This witness disagreed that if the plaintiff swerved to the left that meant that she was too far out on the rear. With reference to the semi-circular skid mark, he said it indicated a vehicle was travelling in the direction the defendant was travelling. He also thought that even though the skid mark was on the plaintiff’s side, it was more likely from a vehicle going in the defendant’s direction, and the skid marks starts just opposite the pier. This witness thought that the first scenario was unlikely to have been the reality. With regard to options two and three, he wasn’t sure which was the correct scenario. He agreed that if a wheel was damaged it would cause the steering to spin and a loss of control. His vehicle should be forced to the left, or if the wheel was already turned to the left it was a possibility that this was the case. He said that the wheel was broken or deflated and noted that the impact would cause the tyre to deflate anyhow.
Evidence of the Plaintiff’s Passenger, Ms Barbara Daish
27. Ms Daish was called to give evidence on behalf of the plaintiff and she confirmed that she was a front seat passenger in the plaintiff’s vehicle. She said that a white car appeared in the middle of the road and he appeared to accelerate behind them after the impact. She said they were on the left in the ditch on the verge. This witness said that the plaintiff checked how she was and how her child was and then went to check on the man from the other vehicle to see if he was alright. She took the child out of the driver’s door of the car. This witness noted that the defendant said that he was so sorry that he could have killed her son and that he needed to telephone his father, that his father would know what to do.
28. This witness was asked about her evidence in the Circuit Court and she said she remembered the white car swerving to her side of the road and she said “swerve” in her language means to pull in as far as you could to the left and that the plaintiff pulled further into the ditch to give him room. It was put to her that there was nowhere to pull in and she said they came around the bend on their correct side of the road and her driver tried to go even more to the left, even though there was no room. She said she was on her correct side and she tried to move as far in as she could. She said the driver, the plaintiff in this case, was the only person with insurance so she had been advised to bring her to court. She agreed that her case was now under appeal having been dismissed by the Circuit Court.
29. This witness said that the plaintiff’s child had blood on his face which was maybe gone by the time the gardaí got there. She said she had not thought about this accident as to whether the bushes would have been in full bloom in August for example. She further said she didn’t remember getting out of the car, that she assumed she got out the passenger door but she actually hadn’t thought about it in the Circuit Court. She said if their car hadn’t been in the ditch she would have gotten the plaintiff’s son out his own door which would have been on the passenger side. She said it would have been easier technically but that she had never been in court before and had no idea about issues such as liability.
Evidence of the Plaintiff’s Partner, Mr Ger Kennedy
30. He confirmed that he was the plaintiff’s partner and that the child involved in this accident was his son. He indicated that when had been called to come to the accident that he was worried about his son. He arrived from the direction of Cloneen. He said that he found a white car on the road behind the plaintiff’s car, nosed in at a slight angle, and that the car was facing him at a slight angle. He said her car was very close to the ditch and that the defendant said to him that his father was going to kill him. He said that he told the defendant not to worry, that there was nobody killed or badly injured. He also said the defendant had told him that his arm had become stuck in the steering and he said everyone was very upset.
31. He said he was twenty minutes away from the collision locus when called and that he couldn’t swear to what time the gardaí arrived. He confirmed that he took some of what were referred to as the “loose” photographs the following day. He confirmed his belief that they showed the position of where the black car was and he said he thought there were some bits of debris on the road and that he noted the fresh mark on the stone pier and the defendant’s car had hit the pier, or their other car was bounced against the ditch and hopped back out. He said he was 100% sure that he took the photographs the following day and he said there is debris on the road on the photograph, a piece of plastic.
32. He said that the defendant said that his arm got stuck and apologised and he confirmed that there was absolutely no problem for oncoming traffic going past the site of this accident. He said his car was very much in the ditch and hers was at a slight angle.
Evidence of Mr. Spratt
33. Mr. Spratt confirmed that he became self-employed in October, 2014 and did machine work for the plaintiff after she had the accident in August, 2013. e did extra feeding of the cattle for one and half to two years after that. He did eight hours one week and five hours the next week and he charged €12.50 per hour which was the rate at the time. The three invoices totalled €8,083 and he said he was paid €8,000 for the entire work.
Evidence of the Defendant
34. Mr. Morrissey, the driver of the car on the occasion of this collision, gave evidence that he resides at Tubber which is two miles from Cloneen and that he is 26 years of age. Cloneen is two miles from the locus of the accident. He is a single farm labourer and had lost his arm two inches above the elbow at the age of fourteen years in a farm machinery accident. He confirmed that he had purchased the motor car he was driving at the time, which was registered in his father’s name, and that there was no insurance on it. He noted that his former partner had insurance on it a year before that. He works 39 hours a week, working with calves on another farm and he does not get disability allowance. He said that he was going to Cloneen and left his own home at 12:15pm and he was travelling at 35km per hour when turning the bend, he could not see the car coming and he was just into the bend as in photograph eight.
35. He described the other vehicle as coming wide around the bend and he said the front of his car connected with the driver’s door. He said he started to come into the bend and he said there was a knob on the wheel of the steering wheel of his car which got whipped out in the impact of the accident and this had been a steering wheel adapted in accordance with the requirements of the Irish Wheelchair Association. He said he caught his hand and it brought it around. He said the front wheel was touching. That his car was pulled towards the right ditch but not into the ditch. He said he jumped out and that the plaintiff met him and they were in an awful panic and he was in an awful panic because the car was in his father’s name. He told her that he had spotted the child and that he wanted to ring his father, that he was panicking and kneeling against the wall, that his hand was painful, that his knuckles were sore between his fingers and that it hurts in cold weather and the muscles are sore. He described the spokes of the car coming off at the rim and braking and he said he blamed the plaintiff’s motor vehicle for being too far to his side, so he ended up hitting her car and was touching the stone verge on one side. He said that he was off the road for two years for driving without insurance and got three penalty points and had another conviction for not having tax.
36. He said he remembered a piece of the rim being on the road and that his car was removed from the scene, but that he paid the removers, O’Sullivan’s, to drop his car to his own house. He said that it was a good day on the day of the accident. He had not mentioned there being a blind dip in the road before this, and he said when he went past the cottage into the gateway, one could only see that when coming around the bend. He said that he did strike her but she was on her own, out on her own side of the road and he agreed he ploughed into her side but that it all happened on his side of the road and that his front corner hit her back door.
37. He agreed that you would expect debris and he said he was upset that he saw blood and he did say sorry and that he was afraid for the child. He said that did not mean that it was his fault in his view. He said it all happened in a split second, that he was on the bend and she came around and there was no way they could see each other and he agrees that the plaintiff could see as far as the bridge. He believed that his tyre popped and that there were two spokes, a chunk came out of the rim of his tyre and that could have made marks on the road. He said he was breathalysed and he passed the test. When asked about the dip in the road, he said it was not a dip but a bend that goes in so far just past the cottage, he said he could not see the person at all and on her side, it would be a blind side. He said the house in picture ten is not visible in picture nine.
The Evidence of the Defendant’s Engineer
38. Mr. Vincent O’Hara, Engineer of Tony O’Keeffe & Co. Engineers, gave evidence for the defendants and he said that the combined sight distance was 45m i.e. 22.5m each. He said he attended the locus on his own and identified it as best he could and said pictures five and eleven of his photograph will show where each would first see the other, each having 22.5m. He said that there was a traffic cone under a beech tree and his description of a blind spot and he did not believe it was a head on impact with reference to the assessor’s photographs, he said the two vehicles had to have been at an angle to each other. With reference to the three possible scenarios raised by the plaintiff’s engineer, he was asked whether it was possible to say that the plaintiff was on her incorrect side and moved back or swerved at the last minute or whether the defendant moved his vehicle as it travelled past. He said that it would have been a left bend for the plaintiff and a right bend for the defendant and that there would be a tendency to move to the centre.
39. The witness said that once there was an impact to the right hand wheel, it acts as an anchor and causes it to curve to the right. The witness does not believe speed was a significant factor. There was no debris, no glass. He argued that the tyre marks seemed to be of a different locus in the “loose” photographs taken by the plaintiff’s partner the following day with the one showing some plastic. In the photographs, the one marked four, according to this engineer has no date on the picture. He said there is debris in three but not in four and there is a tyre mark in four but not in three and that this suggests a different locus.
40. In summary, with regard to the three possible explanations of the plaintiff’s engineer, regarding the first one, he said that a vehicle damaged on the front right would cause the vehicle to move to the right but he said the second and third scenario would show the plaintiff’s vehicle exposed to the right hand side and he said in any of the three of the scenarios might have applied. He said that the defendant’s wheel would move to the left side on impact and that two or three was more likely but you cannot say one was not the cause of the accident.
41. The witness was asked by the court what if one adopted a 50/50 position. What would move one or other back from that 50% liability. He said you would need debris to tell you that after impact the plaintiff would move to the right hand side and the debris could be from either vehicle. He felt that if the defendant had been on the incorrect side, the plaintiff would be facing forward, there would be more damage to her front. He said that the “loose” photographs three and four do not tally and seem to refer to different locations.
Potential Liability of Plaintiff
42. In the first scenario considered, the contention is that it is the fault of the plaintiff. In the second, the damage is to her right side and the contention is that it is the first named defendant’s fault. The third contention is that the Plaintiff was on the wrong side of the road, that the plaintiff corrected and evaded by pulling to the left and that she was, therefore, entirely to blame.
43. Mr. O’Hara said that the first possibility could not be discounted entirely and that in relation to the second, one would have to be objective and to look at the evidence and the credibility of the plaintiff and her passenger and her partner in relation to the photographs and he said that it was helpful that the gauge mark was curving to where the defendant’s car ended up. The submission was made that the lack of a garda investigation was unhelpful, that the absence of a sketch mark was unhelpful and that there must have been debris.
Defence Submissions
44. The defence submissions was made for an apportionment or that the court adopts the second proposition. It is pointed out in resubmissions that it is common case that both engineers found that the two vehicles were one at an angle to the other. This suggests that the plaintiff’s car was straight on the road. She suggested that she was square with the road or almost stopped and the credibility of the plaintiff is very much in issue.
45. It is noted that Garda Carty is on the plaintiff’s schedule but he was not called as a witness. If one is not calling a witness under the s. 391, one ought to serve a notice of discontinuance of that witness and the submission was made that the court may infer that if you are not going to give supporting evidence, it is a significant factor and one can infer that that witness did not support the plaintiff’s case.
46. Section 34(1) of the Civil Liability Act is referred to and if the court divides up liability, it is mandatory if one cannot decide then on the issue of contributory negligence or proportions regarding same then if it is not possible to establish the different degrees of fault, the liability ought to be divided 50/50.
47. The “loose” photographs taken by the plaintiff’s partner were not produced pre-trial but late in the day and it was also submitted that some are dated and some are not and thus we are relying on his recollection. However, we cannot ignore these photographs but it is noted that there was a car rally the same day.
The Medical Evidence
48. The plaintiff’s general practitioner, Dr. Bernadine Rochford, G.P. noted in her first report dated 10th of September, 2018 that the plaintiff attended the surgery on the 7th of September that year having been involved in a road traffic accident on the 11th of August, 2013. It was noted that the plaintiff was brought to South Tipperary General Hospital by her partner as she was concerned about her young son in case he had either a head injury or concussion as he had a nose bleed at the scene of the accident and had been frightened. No x-rays were taken and there was no sign of a concussion and the plaintiff herself was referred to Fran Mulcahy, Physiotherapist.
49. This report notes that on the 20th of August, 2013 Ms. O’Donnell attended the surgery and saw Dr. Deirdre Dunne, Registrar to the G.P. She complained at that time of mild neck pain and had been to see a physiotherapist that week. She had no arm symptoms and her neck was not tender with no midline tenderness but she was tender on the right C7 vertebrae and was tender over the upper trapezius muscle on the right side. Her neck movements were good and Dr. Dunne diagnosed a muscular problem and prescribed anti-inflammatories, difene tablets and Valium for muscle spasm, and gave her a tetanus vaccine.
50. The plaintiff was seen again by Dr. Rochford on the 4th of November, 2013 and was treated for a sinus infection and complained at that time of having a sore neck. She attended physiotherapy and had pain in her right arm on that occasion and reduced movement to the right side of the neck with tenderness. More anti-inflammatory medication was prescribed. At that stage the plaintiff had had six sessions of physiotherapy for both neck pain and arm pain.
51. Her MRI scan of the 1st of May, 2014 showed mild broad based posterior bulging of the C5/C6 and the C6/C7 intervertebral discs, each of which is distorting the thecal sac and causing mild encroachment on the emerging bilateral C6 and C7 nerve roots respectively. That was in relation to the cervical spine. On the same date an MRI scan of the lumbar spine showed disc space narrowing with disc degeneration and mild broad based posterior bulging of the L4/5 and the L5/S1 intervertebral discs each of which is slightly distorting the thecal sac and is causing mild encroachment on the emerging bi-lateral L5 and bi-lateral S1 nerve roots respectively.
52. The MRI scan of the cervical spine of the 4th of January, 2018 showed slight loss of the usual cervical lordosis giving rise to a relatively straight cervical spine with disc space narrowing and disc degeneration and moderate broad based posterior bulging at the C6/C7 intervertebral disc which is slightly distorting the thecal sac and is causing mild degeneration and minimal broad based posterior bulging of the C5/C6 intervertebral disc which is causing minimal encroachment on the emerging bi-lateral C6 nerve root. There is a suggestion that changes in the vertebral bodies and in the posterior aspect of the cervical spinal cord are possibly due to previous trauma. The changes noted were present in the previous MRI carried out on the 1st of May, 2014 and there has not been a significant change during the interval. This clinical report confirms her social status as a full time farmer with a suckler herd and kennels and that she is a full time carer for her 90-year-old mother. There are home helps and HSC carers visiting the house daily to aid with the care of her mother. She also has the care of a nine-year-old son who attends local national school. This report verifies her oral evidence to the effect that the plaintiff can do tractor work but is unable to do any physical lifting including lifting buckets of foods and meal as a result of this accident and she has changed her work practices in terms of how she fattens her herd to avoid the necessity for heavy physical work. She had to have help with her dogs and keeping the kennels clean post-accident, as she was no longer able to do that work.
53. This report sets out that she was a very nervous driver and passenger post-accident but that this has settled down and she is now fine when driving.
54. As of the date of that report the plaintiff has neck and back pain but no pain radiating into the leg, the pain in her low back comes and goes and the neck pain, on the right side of her neck, is some days worse than others and she cannot turn her neck at all on some occasions. She had pain in the right lower ribcage over the summer but no arm pains.
55. The general practitioner found the plaintiff to have reduced rotation to the right side of the neck with normal flexion and extension, her shoulders were found to have a normal range of movement and her back was agile with normal range of movement and normal straight leg raising. In summary this 49-year-old woman who was involved in this accident five years ago in August 2013, has been found by her general practitioner to suffer from chronic neck and back pain ever since. An overall improvement in her symptoms is not expected.
56. The report of Mr. Kaar of the 15th January, 2018, Consultant Neuro Surgeon says that the plaintiff had very severe symptoms for four months and needed constant help on the farm and with kennel work until December, 2013. Dr. Kaar said the plaintiff had severe stiffness in the neck and low back, with pain in the shoulders more on the right side and she had to turn her whole body due to muscle spasms. Mr. Kaar traced through views on 4th December, 2013 by Dr. McCarthy, an on the 13th May, 2014, October 4th, 2014, April, 2015 and October, 2016 which show a pattern of difficulty since the accident.
57. In his review on the 18th of December, 2017 the plaintiff still complained of ongoing pain on the right side of the neck radiating into the right shoulder and arm. He noted that she undertook physical tasks more with the left hand and that she carried buckets with the left hand rather than with the right, although she is right-handed. She still required extra help with the farm and kennel work. This witness found tenderness in the mid-trapezius muscle in the lower cervical area on the right. He found reduced rotation of the head to the right by 15° compared to the left. This doctor diagnosed degenerative change in the cervical spine at C5/6 and C6/7 bi-laterally where there were disc/osteophyte protrusions and foraminal stenosis and soft tissue strain of the cervical spine as a result of this accident on the 11th of August, 2013. In addition, this doctor found degenerative changes in the lumbar spine particularly at L5/S1 where there is a disc/osteophyte protrusion. A soft tissue strain to the low back is as a result of this accident. This doctor found persistent restricting mechanical/referred lower neck and right arm pains and lower back symptoms since this accident. He also found in the follow-up MRI of the cervical spine an indication of degenerative changes at C5/6 and C6/7 and persistent narrow edema of the C2 and C3 vertebrae with an adjacent area of spinal cord signal change possibly of post-traumatic origin. This doctor indicates that the disc degeneration will require by way of repair process a number of years. The acute spinal pain is a mechanical strain of the soft tissues such as ligaments, tendons, muscles and discs in the spine. He said that where severe muscle spasm is induced by pain there may be a reversal of the spinal lordosis and restricted movement. In the opinion of this doctor there were underlying degenerative changes in the lower cervical spine prior to the accident. He also confirms that it is likely that the changes in C5/6 and C6/7 were present prior to the accident. He noted that a twisting injury may give rise to severe and persistent symptoms and that a mechanical strain of a disc may give rise to referred symptoms to the upper limbs and the right shoulder and arm symptoms could have been referred from the lower cervical spine. In the view of this doctor he believes that it is likely that there was a twisting strain to the cervical spine as a result of this accident. He notes that the plaintiff was stationary, restrained in a seatbelt and that there was a severe head-on collision. There was extensive damage to her car. Following the accident, she experienced early and ongoing symptoms in the neck and shoulders more in the right arm with paranaesthesia to the right hand. He said that the medical intervention showed severe symptoms at an early stage with a reduction in movement of the neck and tenderness in the right side muscles to the extent of 70° but that symptoms reduced to the point so that by August, 2016 neck movements were 30% of normal with no paranaesthesia in the right hand and the severe initial symptoms and gradual reducing symptoms and clinical signs were consistent with post-traumatic pain.
58. He found ongoing pain in the neck radiating to the right shoulder and arm.
59. This doctor felt that it was likely that there was a compression and a twisting strain to the lower lumbar spine as a result of this accident. He notes pre-existing degenerative change in this area and that she had experienced mechanical symptoms of the low back from 2007 and that it was likely that they arose from the L5/S1 level. He noted that prior to the accident she was mildly symptomatic but that following the accident Dr. McCarty noted that she was experiencing severe low back symptoms.
60. In terms of prognosis Dr. Kaar says that this patient is now four and a half years’ post-accident and pain remains significant and ongoing particularly in the cervical area and that on the positive side clinical examination does not show any evidence of progressive neurological change or nerve root compression and MRI appearances are overall stable. This report specifies that symptoms are likely to persist for at least a further one to two years but should gradually reduce. In the meantime, the plaintiff will be restricted for exercise and physical work for at least that period of time and that there may be some restriction for exercise and physical work longer term. Simple aerobic exercises, anti-inflammatories and other medications are likely to be necessary for a one to two-year period. He found that the risk of further neurological change was 5% in the longer term.
61. Professor Eamon Breathnach, Consultant Radiologist gave his report dated the 29th of June, 2018 and he had reviewed the MRI scan of the 25/11/09 which pre-dated the accident and he said that there was moderate associated degenerative change in both facet joints at L5/S1 and he said that the MRI of the cervical spine of the 4/1/2018 showed evidence of degenerative change at both the C5/6 and C6/7 disc spaces. He amended his opinion dated the 22nd of March, 2009 and he said that in the absence of back pain prior to the accident and the development of neck pain subsequent to the accident, in particular with neck and right arm pain, it is a matter of probability that the underlying change was altered from a clinically insignificant pre-existing condition to one which is now clinically troublesome in terms of neck stiffness and some neck pain and right arm pain.
62. As of the 24th of December, 2014 this doctor was now in receipt of the MRI scan dated the 1/5/2014. He noted mild degenerative change at L5/S1 with sub-chondral reactive bone change in the adjacent support end plate vertebral bodies with mild facet joint degenerative change in the lower lumbar sacral spine but the spinal canal diameters remained normal.
63. Mr. Michael O’Riordan a Consultant Orthopaedic Surgeon in his report of the 30/5/2018 examined this patient and found that she exhibited an excellent range of movement in both the cervical and lumbar spine with no tenderness and that she was able to heel walk and toe walk and that straight leg raising was 90° bi-laterally and that neurology in upper and lower limbs is normal. This doctor found that her prognosis was good, that there were strains in her neck and back gradually recovering and he did not doubt that she would make a full recovery with no long term sequelae.
Findings of Fact
64. Having reviewed the evidence I find that the plaintiff is a credible witness. Beginning with the photographic evidence, it can be seen that on the driver’s side of the plaintiff’s car, the impact begins at the forward end of the car at the wing and driver’s door continuing on to the rear. This is in direct contradiction with the defendant’s testimony who stated that he crashed into the plaintiff’s back door as she swerved back onto her side of the road.
65. The force of the collision shunted the plaintiff’s car further into the ditch against a stone pier in the hedge which is displaying fresh impact damage in all photos in which it appears, “loose” or otherwise. I do not accept that the rally had any connection to the tyre marks in the photographs. As the plaintiff’s car was wedged against the pier, the right rear wheel took the majority of the force of the collision and was wrenched sideways. This would appear to be the source of the tyre mark as it begins almost parallel to the stone pier and would be the point that the wheel would stop turning as it was dragged backwards in a sideway position. This is consistent with the evidence of the plaintiff and her passenger that she pulled into the left as far was reasonably practicable.
66. I find on the balance of probabilities that the third option as outlined by the plaintiff’s engineer is most likely. The defendant either cut the corner or crossed over to her side due to the unfortunate catching of his arm in either the seatbelt or the steering wheel. The lack of a “head on” collision also coincides with the evidence that the plaintiff attempted an emergency avoidance further to the left when she realised that the defendant was committed to his course of travel but the plaintiff had no more room on her left. The plaintiff was not responsible for this accident. Her passenger and partner were credible witnesses. On the balance of probabilities, the plaintiff moved as far in as she could to her left, to avoid this accident and it was reasonably foreseeable given her description of the defendant’s approach as described by her.
67. The first named defendant made wild promises in his panic, at the scene. He acted in a wholly irresponsible manner, in not taking sufficient care in terms of driving without insurance, driving carelessly given his disability in not allowing himself adequate time to stop in the emergency which arose, and in his not paying due care and attention to the presence of the plaintiff’s vehicle on the roadway. The defendant’s evidence was self-serving in all the circumstances. The plaintiff’s engineer gave clear and complete evidence to show the court that her version of events was, on the balance of probabilities, the correct one and it is clear that in all the circumstances as found by this Court, this accident was reasonably foreseeable. The owner was negligent in allowing his son to drive without insurance. I find in favour of the plaintiff as against the defendants and reject all claims for contributory negligence. The plaintiff did her best to avoid this accident and was not negligent.
Conclusion
68. In assessing the appropriate amount of damages for this injury this Court takes the view that the plaintiff clearly had, and makes the finding that, the plaintiff clearly had pre-existing back difficulties. I find that she suffered a moderately severe wrenching type injury which led to serious limitation of movement with recurring pain stiffness and discomfort. These injuries had exacerbated a pre-existing condition, certainly in the back, although she suffered further neck difficulties as a result of this accident. Now, almost five years post-accident, she has ongoing pain and stiffness and the medical view of Dr. Kaar is that she will continue to have these symptoms for at least another one to two year period. In all the circumstances, given that this has impacted on the plaintiff’s manner of doing her farming enterprise work, has restricted her in earning her livelihood, in terms of her having to pay hired help on occasions, and having had to adjust the type of farming she does and having had to get assistance cleaning out kennels for the dog kennelling work which she does, this has severely impacted on the plaintiff in terms of her earning her livelihood. While she did not require surgery, nonetheless, she definitely has had consistent and persistent pain for what is exceptionally a lengthy period of time and if Dr. Kaar is correct it will have taken her seven years to get over this accident. The impact on her life has been significant on her working life and normal day to day living. In all the circumstances the court is mindful of being proportionate not only in relation to the injuries sustained by the plaintiff but also proportionate when assessed against the level of damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. In all the circumstances it seems to this Court that the appropriate level of damages, pain and suffering to date €80,000 with a figure for pain and suffering in the future in the sum of €25,000 giving a total of €105,000 in terms of general damages with items of special damage in the sum of €12,069. This Court has taken note of the revised Book of Quantum.
Cahill v Glenpatrick Spring Water Company Ltd.
[2018] IEHC 420 (19 June 2018)
JUDGMENT of Ms. Justice Bronagh O’Hanlon delivered on the 19th day of June, 2018
1. The plaintiff confirmed his date of birth as 2nd May, 1973 and that he is a father of four boys aged 22, 20, 18 and 16 years. He described his employment history, having left school at seventeen years, as mostly being based in the manufacturing sector and factory type work.
2. The plaintiff gave evidence of having had a previous accident at work in a previous employment in or about 2008 in a dump truck seat, which failed because there was a temporary weld on the seat as a result of which the plaintiff suffered a back injury. The plaintiff didn’t have ongoing difficulties in that area of his body as a result of that accident. He described himself as interested in sport, hunting, fishing, football and hurling.
3. The plaintiff began his work with the defendant company initially as a seasonal contract worker. He began that work in May, 2010, originally with 5pm-10pm shifts. At that time the plaintiff explained that he was undertaking a course to train as a nurse’s aide/care worker in the hope of obtaining work with the Heath Service Executive.
4. The plaintiff described his main job as manning the Sidel 2 machine within the tabard area where “preform” plastic bottles were blown into full size bottles. The plaintiff gave evidence that at 10pm at night his duties changed and he would then work when the night shift took over, in the palleting area. His work hours were extended after a period of time to 1:30am.
5. The plaintiff gave evidence that the accident occurred on 15th September, 2010 at 9:30pm. The problem developed in the timing in his own machine and, as he was trained to do, the plaintiff attempted to reset the timing but was unsuccessful. The plaintiff then went to Pioter Czernejwski who was standing on the frame of Sidel 3 and was removing a blockage of preforms in the top of the machine by hand. He gave evidence that he was invited to change places with this gentleman who asked him to finish up what he, Mr. Czernejwski, was doing while he went to investigate the problem with the plaintiff’s machine. The plaintiff’s evidence was that he climbed onto the frame of the machine, stood on the uppermost bar while clearing the blockage by hand but that while he was throwing an armful of preforms back into the hopper at the foot of the conveyor, he lost his balance and fell backwards. The plaintiff describes striking his head off something as he fell and that he hit the ground landing on his coccyx and elbows. He then met and had a discussion with Anthony Dignam who was the nightshift supervisor and who chided him for being up there. The plaintiff then said his own machine was not working. It was close to changeover time so he went to work in the palleting area but that he wasn’t able to do the work of lifting wrapped bottles due to pain and, having indicated to the evening shift supervisor Mattie O’Brien that he was injured and would have to go home, he left the plant.
6. The plaintiff gave clear evidence that when he got as far as the nearby carpark in Tesco he was obliged to telephone his wife and get her to collect him because he could not drive his motor vehicle. The following day he explained to Tom Weste, who was the day shift manager, what had occurred and the plaintiff says that he furnished medical certificates for a number of weeks before he received a P45 from the defendant in the post.
7. The plaintiff was treated by Dr. John Carey, his general practitioner, with anti-inflammatory and pain killers and given a sick note for work for one week with a diagnosis of probable soft tissue damage. He was sent for various x-rays and then he got a referral to an Orthopaedic Consultant in Ardkeen Hospital. He saw Dr. Chhabra but also Professor Molloy in Cork and he went privately regarding his neck and back. Professor Molloy gave him a set of exercises for his neck and back. The plaintiff gave evidence that these exercises are very painful but that he does them very regularly and that he also does light gym work and walks. However, he avoids uneven ground. He felt that he was left with a weak left leg and has had falls. He is on two different nerve suppressants. The plaintiff described how hard it was for him to sit for too long or to stand for too long and how he has to take pressure off his back. He described it as like being winded between the shoulder blades with pain down the right arm to above the pelvis and he said that his lower back was causing him greater difficulty at the moment with spasms every couple of weeks and that he was getting a lot of sciatica.
8. The plaintiff described how he missed three weeks of his FETAC course which would have allowed him to work in a hospital setting as a nurse’s aide or carers assistant and that it was a quite intense eleven-month level 5 course. He couldn’t continue with that because physically he couldn’t put himself forward, he couldn’t drive a car and he felt that his legs were going to explode. The plaintiff described himself on social welfare disability allowance ever since the accident and says that he has rarely been able to drive since then. If he goes for a walk he has to be picked up and if he stays too long on his feet, he gets very stiff. The plaintiff indicated that he hadn’t cleared blockages on machine no. 3 before the accident but that he had seen it done. The plaintiff felt that prior to this he had been a very active sociable person and very family orientated but that now he tends to be isolated from his own family and has suffered depression difficulties and is now on an antidepressant. The plaintiff described himself as a person who doesn’t like to show weakness and he found it very hard to admit that he was depressed.
9. The plaintiff described considerable pain in 2012, with particular irritability, agitation and moodiness. He said that he had separated from his wife in 2012 but feels the loss even though he has contact with his children. He is now in shared accommodation within walking distance of his own home. The plaintiff accepted when cross-examined that he had been assigned to Mr. Bates who had trained him in use of the Sidel 2 machine and that he had worked with him for an eight-week period. He agreed that Mr. Bates had shown him how to reset the timing on the Sidel. The procedure was that he would climb up on the hopper and Mr. Bates would show him how to free it and that if he couldn’t free up the machine Mr. Bates would climb up on it. The plaintiff also agreed that his colleague at Sidel 3 sent him up on his machine and that that is when he fell.
10. The plaintiff described how he tried to work for Sky Television cold-calling but he said that for the hours he needed to put in, there was no financial gain. The plaintiff then gave evidence that he tried to work for Homestead who were looking for workers. He found that work just too uncomfortable to do, mostly concerning discomfort in the neck and back.
11. Under cross-examination the plaintiff described himself as having good days but bad weeks and that he was quite uncomfortable 99% of the time.
12. The plaintiff was cross-examined in detail about a number of social activities from photographs of holidays and socialising with his family and friends. He was asked about his cutting up blocks and loading them onto a trailer with other family members which he freely admitted doing and he indicated that he was able to do this physical activity within reason until his back or neck would no longer allow him to do it. The plaintiff indicated that he can use a chainsaw but only for a limited period of time. He denied that he sawed, split and loaded the wood all in one day and indicated that the wood would have been sawn prior to that by either himself or his son. Some of the specific contents of Dr. Gleesons’s report were put to this witness but the plaintiff did not accept that there was nothing wrong with him as asserted by Dr. Gleeson. The plaintiff freely admitted that he helped his sons with the timber and he said that it was not a case that he ever said that he is an invalid 100% of the time. He did not accept the contention that his claim was fabricated.
13. On re-examination the plaintiff clarified that he did not have back pain at the point at which he ceased to work for Roadbridge and that at the time of the accident in Glenpatrick he was quite fit but slightly overweight. He used to play AstroTurf soccer as well as indoor soccer. The plaintiff agreed that he had lost three stone in weight in seven weeks prior to the accident and that it is referred to in Dr. Carey’s notes dated July, 2010. The plaintiff indicated that he was treated for bacteria in the intestine and he said when he stopped working in Glenpatrick he started putting on the weight and he agreed with the clarification that Dr. Maria Kelly recorded on 23rd July, 2010 that his weight has stabilised in the previous week.
14. Mr. Thomas Weste gave evidence on behalf of the plaintiff. He described himself as a day shift supervisor taking responsibility for the regulation of production within the plant. He had worked there for eighteen years and had interviewed the plaintiff in respect of the job concerned. This witness indicated that he had no role in induction or training and he confirmed that the day after the accident the plaintiff indicated to him by telephone that he had had a fall and that he expected to be back at work within a matter of days. He reckoned that the plaintiff was off work for about four nights. The following Monday the plaintiff telephoned to confirm that he would be coming to work with a sick certificate. This witness indicated that he was made redundant a couple of weeks after that, after 18 years’ employment.
15. Thomas Sheehan gave evidence for the plaintiff and said he worked in the plant until 2014 where he had begun as an operator and gone on to become a product manager over a 25-year period with the firm. He had worked sixteen years as production manager. He described the stages in the process, stage 1 buying in the preform items, stage 2 involved heating them in order to turn each one into a bottle. He said he himself had never actually worked with the plaintiff and he agreed that he had his own difficulties with the company and he agreed that at that time while he took redundancy there had been an attempt on the part of his then employer to dismiss him and that he has a case against the company. He confirmed that he never worked on the plaintiff’s shift nor does he know him. He explained that if there wasn’t a major blockage he would use a stick to clear the fault on the machines and he confirmed that he had worked on the machines for sixteen years and had climbed them to do maintenance.
16. Mr. O’Reilly, Consultant Engineer, gave evidence that he attended the premises on 28th May, 2013 and that the plaintiff brought him to Sidel 3 where they were making the plastic bottles. He took the court through the photographs taken and made reference to the fact that, in his opinion, ten feet above floor level, it was not a safe place to work. If a person were climbing the structural bars, one would climb to the fourth bar, which would be 81 inches high, and one would then need a safe means of access to a platform or tow board and ladder. He said there was an obligation to have a safe means of access to and egress from the place of work and that s. 15 of the Health & Safety at Work Act 2005 came into play.
17. He referred to the risk assessment hazard and an ID sheet as a precursor for the preparation of a safety statement. This classified the risk level as medium on the subject machine. He said that hands were used with the moving machine and that there is a risk of entrapment with manual removal of a blockage. He said that was the position with regard to Sidels 1 and 2 and he believed that it also referred to Sidel 3 and he said that he would identify this is a hazard i.e. the manner in how a blockage is removed. He said there is no means of climbing up, that it is unacceptable and clumsy to try and clear blockages in the manner used. He said there was no reference to climbing machines and that this part must be accessed on a frequent basis and there should be a platform ladder. He confirmed under cross-examination that if he were required to climb in the manner described by the plaintiff that that would be an unsafe system.
Evidence of Marie Cahill, wife of the plaintiff
18. Mrs. Cahill gave evidence that she was married in 1995 and confirmed that she had separated since the accident but that the parties had brought up four children and that all but one are now adults. She described how her husband telephoned her to say that he had had a fall at work and that he was coming home. Five to ten minutes later he asked her to collect him from Tesco. She got her sister to come with her to Tesco to pick him up. This witness said that he telephoned Tom Weste and that she drove him into the factory to explain what had happened and that she brought in medical certificates three or four times and that she got these certificates week by week from Dr. John Carey and handed them into reception.
19. She described the husband as having mood swings the entire time since the accident. They separated two years post-accident. He had been taking out his bad moods on the boys, was snappy and that he had moved out, but that most days he would pop down and that they still talk. The witness confirmed that her husband had had an accident while working with Roadbridge and that he was in pain for a few weeks after that accident but that it was not severe. The witness was cross-examined to the effect that her husband was claiming to have complete disability. She was shown photographs of him lying on the floor and the defence put to her that he seemed to be in the whole of his health while he was saying that he couldn’t ever work after this event. The witness said her husband was not in a new relationship that she was aware of, that he had gone on a family outing to Wales and that he had wanted to make it a day out and that she didn’t see him cutting logs. She was aware that he had lost 70 pounds in weight prior to the accident.
20. Dr. George Karr, Consultant Neurosurgeon, gave evidence of his qualifications to the Court. He said that he had seen the plaintiff on 15th February, 2018 and found him to have stenosis or degenerative change of the joints from being flexible to less movement. He referred to nerve study conduction tests carried out and he said that the symptoms can cover pain, pins and needles and burning sensations. He found that this patient had chronic long term changes going on for at least six months, L2 to S2 changes and L2 to L4 on the left side. He said that these were indicative of compression of the nerve root and can be degenerative or be due to a trauma where there is stretching or irritation of the nerve root. He said that is present in the MRI scan and that he thinks a fall from seven foot high is likely to give rise to a sign of stress to the neck and lower back. He said the plaintiff has pain in the shoulder blades. His diagnosis is of degenerative changes in the lower cervical spine and lumbar spine and he said there was a loss of sensation with trauma to the lumbar spine. He said that in December, 2015 in terms of prognosis, the pain remained severe at that stage and he felt surgery would aggravate matters. He said the plaintiff was due to be seen by a pain specialist and was to exercise as much as possible. The symptoms would continue for one to two years.
21. This witness indicated that it is now five years since the accident and said that non-impact exercise was recommended with no excessive twisting. He said that there is a 5% risk of serious change and he envisaged a further one to two years towards recovery. He said when one is five years post accident that after two to three years it is very rare to become completely pain free. He feels that the plaintiff’s back pain is worse and that he has a dead pain in his right leg as if cold water was running down the right leg and going into the right arm and hand.
22. The plaintiff is on antidepressants which he gets from his GP and he said that in some cases this becomes an overriding problem where there is an unresolved upset and there can be psychological disturbance which can lead to severe mental distress. He found this plaintiff’s neck movement restricted and shaky and that the pain went through the right shoulder and right elbow and to the rest of the lower back. He said he felt that the second MRI was unchanged and that the diagnosis was the same as previously. In terms of symptoms and clinical findings he said these are much the same as before and that over time the plaintiff became more upset regarding his case.
23. The prognosis seven years following this accident is that the plaintiff is in constant pain and discomfort and it is unlikely that one would see significant improvement.
24. This witness said that it was unlikely that the plaintiff would be unable to do physical work or exercise. He can do non-impact exercise. He said that there was a physical and psychological basis to the problem and that basic exercise was all right but that he did not see him returning to his previous activities.
25. In relation to the fact that the plaintiff was chopping firewood, this witness indicated that every time he saw the plaintiff he encouraged him to exercise and to do activities i.e. short burst activities.
26. Under cross-examination this witness said that at the early stage there was no bone injury but that the scans in 2015 showed that degeneration could be found and that there is no clinical evidence of nerve malfunction. He said he relied on x-rays and the scans of the spine as well as neurological symptoms. This witness strongly said that he relied on both x-rays and scans but also on his physical examination and that in 2015 he found a restriction of movement of the neck and back with obvious pain and he found a restriction in movement in both legs.
27. This witness was asked about a previous accident where the plaintiff suffered in 2008 an injury from a dumper truck and he told Dr. Kaar that he had fully recovered within six months of the accident and it was remarked that three and half years after the full recovery the plaintiff issued High Court proceedings regarding that claim. This witness, asked that about Dr. Gleeson’s findings, said that in 2015 the plaintiff’s movements were a little better than they are now. He said that Dr. Gleeson appeared to have missed the whole upset and psychological aspect of the case and, while she concluded that the plaintiff was in some way exaggerating, she was looking at him physically, not holistically and that while the plaintiff is capable of moving and doing things with his symptoms, he doesn’t believe it is false. The plaintiff has developed progressive symptoms since the accident. He said the plaintiff’s difficulty begins with physical problems which then becomes pain plus psychological upset with difficulties of self-perception where it can be very difficult to return to previous activities. This witness was shown photographs of 16th July, 2014, showing the plaintiff on the ground. He said it is very difficult to comment on a brief snapshot in time and its interpretation is really a matter for Mr. Cahill.
28. This witness was asked about Mr. Cahill being on a fairground ride where the instructions said that if you have a bad back you should not use this equipment. This witness answered that the plaintiff is sitting down in the photograph and that he felt the force of such rides would be carefully calculated. Photograph 2 shows a vertical ride and it was put to this witness that there was no attempt to protect his back and he said the plaintiff does not seem to be supporting himself with his arms in the photograph and that it is difficult to know how often he did this or for how long he was engaged in the activity.
29. He was asked about the plaintiff chain sawing, splitting wood and glowing wood and he said that when he reviewed the plaintiff, he tried to encourage him to do things, although not on his own.
30. This witness said that he believed that the plaintiff undertook Homestead care work since the accident and he said on the evidence of one occasion of leg activity that it was very poor evidence and he could not comment. He said it would be different if he carried out a complete trailer full of material with an axe. He said it would not be consistent if he was on his own rather than with his sons as was the case here.
Evidence of Susan Tolan, Occupational Therapist
31. This witness saw the plaintiff on the 11th July, 2016. He set out his complaints and his full work history. He was in the course of undertaking health care assistance training and there were jobs in that area. He also tried telephone sales which was not competitive for employment and she felt that there were significant barriers to employment for this patient. She described his physical complaints, his loss of confidence, his isolation, his injuries, the fact that he was depressed and described this as a vicious circle. For any employer he would have to update his skills and any employer would have a duty of care regarding manual work and would not be a suitable occupation for him. She stated categorically that he was not employable at the moment.
32. This witness also stated clearly that if a person is depressed it is very difficult to get that person to cope with vocational rehabilitation. With disability one can earn €120.00 maximum per week. One could work part-time but the plaintiff does not have a skill at present and is now on anti-depressants.
33. It was put to this witness that the plaintiff had been involved in using a chainsaw. Her response to this was that one must look at the purpose of the activity. It was more important that occupational deprivation leads to social isolation and it might well have been necessary for his physiological wellbeing that he would do something with his family. This witness said we must view the chainsaw in a wider perspective.
34. With regard to photographs where a lady is seen falling over the plaintiff in an accidental way, her response was that it might well have caused him severe pain. This witness also felt that even though he was working with a trailer, it did not mean that he could sustain that type of activity over a period of time. Regarding his history, her observation and his medical reports, this witness concluded that the plaintiff is not a candidate for employment. The plaintiff would not have had enough stamps to give him an invalidity pension. He was refused disability and got it on appeal and therefore this witness argued that he was by definition unfit to work.
35. In 2017 in terms of the certificate of recoverable benefits the plaintiff indicated to this witness that he was getting disability allowance at the time she saw him.
Evidence of Dr. Gleeson, witness for the defence
36. Dr. Gleeson, Specialist in Occupational Health, described her qualifications both as a general practitioner and as a member and fellow of the Royal College of Occupational Health Specialists. This witness looked at fitness for work in terms of safety, capacity and tolerance. She claimed to use the holistic method and said the plaintiff was sent to her for a medico-legal examination in 2015. She said that he sat in front of her for 45 to 60 minutes with no difficulty. This witness claimed that he was inconsistent and that he could dress himself with no difficulty and that he either had Munchausen’s Syndrome or that he exaggerated or had a psychological difficulty. She said that there were no clinical signs and that all his joints had the full and normal range of movement and that his difficulties are non-organic or psychosocial. She referred to “black flags” which would indicate a lack of happiness at work or that there was litigation pending.
37. This witness said that he had chronic pain syndrome with “black flags” and felt that he was part of the compensation culture. She said that there were no signs that any allegation of chronic pain was work related and she felt it was more psychological/social. She did not find him depressed and deemed him fit to work. This witness said that the plaintiff needed rehabilitation but that there is no reason to get back to work and his previous injury would not preclude him from work.
38. This witness said that he had a full normal range of movement and that a forklift vibration would be nothing like the vibration on a fairground machine for example.
39. She was shown where the plaintiff was crouching. She said he was able to hold that position without any distress and that he was functional and she deemed him to be fit to work and felt that there was deliberate exaggeration or a psychosomatic aspect and that with a period of rehabilitation of four to six weeks he should be back to work.
40. Under cross-examination she agreed that she would defer to the opinion of a neurosurgeon regarding the spinal issues and to an orthopaedic surgeon. She agreed that she did not have the MRI test to hand when she examined the plaintiff and she did agree in conclusion that it would be worth an orthopaedic and surgical opinion. She did not have the nerve studies conduction reports at that stage and she said she did not wait on the results to do the report. This witness argued regarding the back pain revolution referred to in a lot of UK studies that the MRI can have a negative effect on opinion. She says we all have a certain amount of degenerative difficulty that does not need surgery and that MRI’s are not routinely indicated.
41. This witness indicated that she saw the plaintiff five years post-accident, that his clinical examination was normal, that his reflexes were normal and his function was normal. She felt that the MRI and testing was for legal purposes and she said that it was good that he was referred to the pain clinic and that is part of excluding a red flag scenario.
42. This witness indicated that a lot of English studies show that there is no clinical evidence of neurological lesion and that a person can still be fit for work and despite having an abnormal ENG study, she deemed the plaintiff fit for work. This witness claims that the ENG is not relevant to her assessment even though the neurological experts say they are in this case. This witness holds that scans are for exclusion studies and that even if one is treating patients with chronic neuropathy he should still go back to work if he can sit and move normally, he can do so. She found that he had a glove and stocking distribution of nervation and that this was not consistent with nerve lesion and jelly legs include faintness and that pins and needles signal cervical radiculopathy.
Evidence of Dr. Seamus MacSuibhne Consultant Psychiatrist of St. Luke’s Hospital Kilkenny.
43. This witness described the plaintiff as having a depressive disorder consequential to physical disorder. He described the plaintiff as suffering from low mood, loss of hope, and as showing some suicidal ideation which was quite severe and that this patient perceived a loss in many domains.
44. The plaintiff indicated to this psychiatrist that he had had a shotgun in his mouth at one stage. The consultant psychiatrist distinguished his condition as that of Post-Traumatic Stress Disorder. He described the plaintiff as having dreams every few weeks in the nature of Post-Traumatic Stress Disorder but he said it was more depression itself which was the problem for the plaintiff. He described the plaintiff as having a profound loss of his sense of self.
45. This witness described the plaintiff as suffering an impact on his masculinity and on his sense of purpose and said that there had been an impact on his family life which included the breakup of family life and the loss of relationship with his sons. Prior to the accident, while the plaintiff had a previous accident, he did not have any traumatic experience as a result.
46. This witness described the plaintiff as being depressed in mood and that he does hope more things can be done in the future for him and that he is on anti-depressants at the moment. He described the plaintiff’s condition as less than one would hope for, suboptimal in his view. This witness advised a change in the medication and advised that the plaintiff be given this at night because it would help his sleep problems. He described the plaintiff as having had a number of losses and said that he needs clinical assessment with a psychologist and CBT.
47. This witness indicated that there are positive signs, however, in that the plaintiff had a determination to get better and he described the effect of this accident as having had multiple effects on the plaintiff.
48. The first interview with the plaintiff occurred on 2nd March, 2018 and the second interview ten days prior to the case being heard. This witness agreed that he was aware that the case was listed at the time of the second interview. He confirmed under cross-examination that the plaintiff does not suffer from Post-Traumatic Stress Disorder and has rather a depressive disorder and he based this clinical judgement on the presenting symptoms at the time. This witness described the prognosis as guarded and that the psychiatrist cannot give a terminal diagnosis.
49. Under cross-examination it was put to this witness that Dr. Gleeson gave evidence that the plaintiff is capable of going back to work. This witness disagreed with that, but did add that he could get back to a position of functioning where he would then be able to go to work. The psychiatrist then added that the plaintiff has depression in the context of psychical symptoms and he described it as an after effect of his injuries and that in his clinical judgement depression is the condition he has. He described making that clinical diagnosis in the context of his own medical reports and the reports the plaintiff had. He said that this witness added that it was a free standing depression and that it was independent of pain, but he agreed that he had chronic and daily pain.
50. Regarding a photograph, shown to the psychiatrist, he was asked whether this photograph was consistent with pain or loss of daily function. He said that it was consistent and didn’t mean that someone never laughs, nor did he feel that the other photographs were inconsistent with the plaintiff having depression and he said that he wasn’t in court himself as a pain specialist.
51. This witness was shown a photograph which showed a stationary roller coaster and he felt that it wasn’t the plaintiff in that picture that had his hands in the air but he said it wasn’t inconsistent with what he knew of the plaintiff.
52. A photograph was put to this witness which showed the plaintiff using an axe/chainsaw chopping wood and again he said this was not inconsistent with a person having a depressive disorder. This witness added that the occupational therapist looks at activity in the broad sense and he said with regard to the photographs showing activities such as that of a chainsaw these are snapshots as opposed to a clinical examination. He hoped that with anti-depressants and psychology that the moderate depression which the plaintiff suffers from would alleviate within a year, but that he cannot work at present and he would hope that after one year the depression would be better and that he could work.
53. The parties agree that the Court could consider the actuarial report provided on behalf of the plaintiff as a guide. No evidence was called in relation to this aspect of the case but it was pointed out on behalf of the plaintiff that he was seven years out of work and that there were loss of earnings figures that he had hoped by February 2012 to work as a nurses’ aide but wasn’t able to complete that training. The report from the actuary was described as not being part of the claim as such. It was stated that while figures were given, the Court was not bound to follow it.
54. Reference was made to Billy Nolan v. O’Neill [2012] IEHC 151. The plaintiff was described as having a disability as a result of the accident he is not fit to do what he would otherwise have done had he not had the accident. His plan A was to work as a health care assistant.
The defendant’s case – evidence of Declan Clarke, Private Investigator
55. This witness indicated that he observed the plaintiff for the purposes of this case and that he was compliant with the Data Protection Act. He indicated that on 5th August, 2015 he saw the plaintiff receive timber delivered in the form of two bags taken off a lorry.
56. He made a reference to day 2 six weeks later when he observed the plaintiff between 10am and 12:30pm using a cutting chainsaw behind a ditch. This witness described himself as passing by the plaintiff every ten minutes. He said there were two men working together on that date.
57. With reference to his observations on Monday 21st September, 2015, he did not see the plaintiff but there was a trailer full of blocks parked at the plaintiff’s home. On 22nd September, 2015 and 24th September and 29th September between 3 and 5pm there was no sign of the plaintiff. On 30th September, the plaintiff was observed by this witness between noon and 1:35pm and he described the trailer on that occasion as blocking his view.
58. With reference to a photograph, he said the plaintiff showed no sign of disability under observation by him on 30th September, 2015. On 1st October, 2015 between 1pm and 3:30pm, the plaintiff was the only person present splitting logs and he was using a big axe i.e. a full sized axe. The plaintiff was continuing this activity and was still there when this witness left.
59. On Friday 2nd October between 1 and 4pm the plaintiff drove the trailer to his house and had the axe up over his head and was bending down throwing logs. He was working fast and was twisting and throwing and carried out a variety of different tasks and there was no sign of restriction on that date between the hours of 1pm and 4pm.
60. This witness confirmed that the plaintiff was still working with the logs when this witness left the scene and that he was quite surprised to see the plaintiff walking showing a restriction of movement.
61. He referred the plaintiff’s open forum on facebook which showed him at a theme park called Oakwood where patrons are advised not to ride with a back or neck injury or ailment or pre-existing condition. Photograph 11 showed the plaintiff on a circular pole which shoots into the air and drops back to the ground and he said it and a rollercoaster where the two most severe rides.
62. Under cross-examination this witness confirmed that he was not watching continuously but was driving up and down the road passing the plaintiff every ten minutes. He confirmed that the longest period of observation every ten minutes would have been between seven and eight seconds in terms of his view because he felt he couldn’t stop the car.
63. This witness confirmed that the plaintiff was only on his own during one of the days on which he was observed. For example, on 17th September, 2015 the plaintiff was cutting but there were other people present and thirteen days later when the plaintiff was cutting with a chainsaw there was a second person present. One day after that he found the plaintiff on his own splitting logs. He confirmed that there was no activity on the part of the plaintiff on 21st, 22nd, 28th or 29th September, 2015 and he said that over two days other people were doing similar work but the plaintiff was not there.
64. With reference to 2nd October, 2015 he confirmed that others were working that day, not the plaintiff.
Evidence of Anthony Dignam
65. This witness was an employee working now with Bulmers but had worked with the defendants for eleven years prior to this as a production manager until June 2016. At the time of this accident this witness confirmed that he was a night shift supervisor. This witness said that it was not permitted to ask a person to get down from the machine and that he doesn’t recall the plaintiff coming to him and felt that he would have reported it himself. He said that if a person was injured severely one would call for medical assistance and that it therefore would have come to his attention.
66. Under cross-examination this witness confirmed that he would have very little to do with the area in which the plaintiff allegedly fell and that it wasn’t his shift or area of responsibility. He clarified that it would not have been his duty to do an accident report form but he still would have reported such an incident.
67. He said that he would have been aware that there were issues about the number of bottles and that there was a premium on clearing blockages but not at the risk of safety and he agreed that he probably had used the phrase attributed to him by the plaintiff.
Anthony O’Loughlin, Operations Manager
68. This witness confirmed that the plaintiff was taken on a seasonal shift and that in 2010 there was an extra shift in the evening and that the plaintiff at the time was doing a course of study and he was free from 5pm to 10pm and it was ideally suited to him. He described the plaintiff’s employment as due to stop at the end of the summer in any event. The plaintiff had a forklift licence and had been five to six weeks on the particular machine in question.
69. With reference to the photographs this witness confirmed that it was very rare that blockages occurred higher up on the machine past the rail but it was not unknown. He said that guys normally get a ladder and this involves a technician or senior operator and he said that such a person was allowed to go up a ladder. The general operative would report to the senior operative. The general operative was not allowed to go up He had never seen a person climbing. The frame was for an electrical panel. He said Peter would never have asked the plaintiff to go up on the machine as described by the plaintiff.
70. Mr. O’Loughlin described the accident procedure and said he would come within five minutes if something serious had arisen. He said that the accident hadn’t occurred and he said it was a small working environment like a village and he said we would all know about it. This witness said that it would be a rare event to receive a letter about a claim and that he would have taken directions from solicitors before replying. He said he remembered a reply in response to Mr. McGrath’s letter. There were no documents or no incident report form received. This witness had it put to him that the evidence of Mr. Weste was that he handed in one sick certificate. There was no challenge to the accuracy or otherwise of this. He said he wasn’t aware what the wife was going to say and he asserted that there was no evidence of sick certificates having been handed in, and that perhaps they weren’t given in or perhaps that Mr. Weste made an incorrect statement. He said that he contacted Mr. Weste to find out what was his recollection and was surprised now to hear what Mr. Weste was saying.
71. This witness said that Mr. Weste is not in good health at the moment.
72. This witness said that he was twenty years with the company, had worked his way up, and that he would have taken it personally if somebody was making up a story. There are no certificates on his file. He presumes that the plaintiff was absent without leave and that no inquiries were made and he presumed therefore that the plaintiff left the workplace early and he said the operation was being scaled down at that stage in any event.
73. This witness confirmed that the machine in question produces 100 bottles per minute and that all machines run simultaneously. This witness confirmed that there was three to four minute lead time before there would be actual loss in production and that then the machine would lose 100 bottles per minute in terms of production.
74. It was put to this witness that the plaintiff said that he had lifted armfuls of proforma and had thrown them back and this witness said that that made no sense.
75. Mr. Yron Potes gave evidence and said that he was eleven years working in the factory and that he himself was a training co-ordinator. He said that he worked on how to run and start and stop the machine and that he would never touch mechanical parts. He said Sidels 1, 2 and 3 were identical machines. He confirmed that photograph 1 showed the rail dropping down and photograph 2 showed that new employees would be told not to touch machines as they have no mechanical experience. This witness said that the employees were told that if the machine broke they were to call the shift supervisor or the senior operator and to let him know.
76. Under cross-examination this witness confirmed that he was on holidays on 15th September, 2010. He said lots of things can go wrong and that employees are not told what to do but to go to a senior operative.
77. Peter Czernezewki described his position with the company as a general operative for the previous eleven years and that he had been promoted eight or nine months ago. He confirmed that he was working on the date in question in September, 2010. He denied the plaintiff’s version that he went to Sidel 2 and that the plaintiff went to Sidel 3 and said he was never working up there without a ladder.
78. He first asked whether they could free the blockage from the floor by using a bar, and said that if they weren’t able to fix it they would call a supervisor. He denied going up on the machine because he said if he did he would be sacked. He said first of all one would see could one free the blockage from the floor and one would have two to three minutes to get the ladder up to the top and see the problem. He said that any problem Mr. Cahill had he would have to call him and that he was not allowed to clear the blockage himself unless it could be freed from the floor. This witness said that there was always a ladder behind C2 or C1 or that it could be in the store in the same area. One could then bring it to Sidel 3, climb up to the top, and the time starts when one is at the top. It costs two to three minutes in production and he said one could not take short cuts when afraid of losing one’s job.
Submissions of the defendant
(a) That the accident the subject matter of the within proceedings did not occur.
(b) That if the accident did occur, the plaintiff acted contrary to his training in climbing the Sidel 2 bottling blowing machine and not using a ladder
(c) If, which is not accepted, the accident did occur, the plaintiff has exaggerated his injuries.
79. The defendants argue that the plaintiff’s evidence is both inconsistent and unreliable and raises the Supreme Court decision of Shelley-Morris v. Bus Átha Cliath – Dublin Bus, (unreported judgment dated 11th December, 2002).
80. In addition, the defendants argue that s. 26 of the Civil Liability and Courts Act 2004 applies to this case and should lead to the case being struck out by reason of false and misleading evidence on the part of the plaintiff. Denham J. in the Shelley-Morris case observed that there are three possible circumstances where s. 26 might apply. Firstly, where the whole claim is concocted i.e. a fraudulent claim. Secondly, where there is a genuine claim but where there is an exaggeration by the claimant of his injuries because of his subjective belief that the injuries have a worse effect than they have. She described this as involving no conscious lying by a plaintiff and indicated that in such circumstances the judge ought to determine the value of the damage suffered in accordance with the evidence but would not condemn the evidence of the plaintiff.
81. The third type of situation occurs where a genuine case establishing negligence is made, but with a plaintiff deliberately exaggerating injuries. At this point the judge hearing the case must exercise judicial discretion with reference to the credibility or otherwise of the witness leading to a situation where, if the court finds that the credibility of the witness is so undermined that the burden of proof has not been met, then the trial judge will dismiss the claim. Before this is done the trial judge may assess the credibility of the witness in light of the evidence of other witnesses. It is important to note that the Supreme Court upheld the finding in Shelley-Morris that the plaintiff exaggerated her injuries but the court declined to dismiss her claim in its entirety. That position has now changed as a result of s. 26 of the Civil Liability and Court Act, 2004 where it is now mandatory for the Court to dismiss a claim where the Court finds a plaintiff guilty of exaggeration of the type envisaged in Shelley-Morris . It is mandatory for the Court to dismiss the plaintiff’s claim where the Court has found that the plaintiff has given or reduced or dishonestly caused to give evidence that is either false or misleading in any material respect and secondly, that he knows that evidence to be false or misleading.
82. Eleven principles arise in the recent Court of Appeal decision of Irvine J. in Platt v. OBH Luxury Accommodation Limited [2017] 2 I.R. 382.
(a) Section 26 requires that the defendant establish an intention on the part of the plaintiff to mislead the court and secondly that he or she as adduced or caused to adduce evidence that is misleading in a material respect.
(b) A false and/or misleading evidence must be sufficiently substantial or significant in the context of the claim that it can be said to render the claim fraudulent.
(c) The defendant is not required to establish that the entirety of the plaintiff’s claim is false or misleading in order to succeed on such an application. Proof, for example, that a plaintiff’s claim for loss of earning was false or exaggerated to a significant extent may justify the dismissal in total of another wise meritorious claim.
(d) The defendant in the course of the hearing must afford the plaintiff an opportunity of counteracting the assertion that he gave false and/or misleading evidence or caused such evidence to be adduced on his behalf, knowing it to be fraudulent.
(e) The burden of proof initially rests on the defendant in a s. 26 application. The court should not rush to judgment where the court is relying on an inference from a proven or admitted fact. That interference should not be made likely or without due regard to all the relevant circumstances including the consequence of a finding of fraud. But that finding should not be shirked because it is not a conclusion of absolute certainty.
(f) Once the Court is satisfied that the plaintiff has knowingly sought to mislead the Court to a material extent, the onus must be on the plaintiff to then establish by whatever means or argument as may be available to him or her that it would be unjust to dismiss the action.
(g) The provisions of s. 26 are not to be used as an opportunity of allowing a defendant to escape liability by reason of the frailty of human recollection or the accidental mishaps as so often occur in the process of litigation. (O’Neill J. in Smith v. Heath Service Executive [2013] IEHC 360.
(h) Section 26 is designed to operate as a significant deterrent to claimants who might be minded to achieve an unjust result by misleading the court and/or their component concerning the truth of their claim in some material respect. Once the Court is satisfied that the plaintiff has given false and/or misleading evidence and the plaintiff has not adduced evidence that to dismiss the claim would cause an injustice, then the claim as a whole must fail and the legitimate parts of the claim cannot survive. Irvine J. at p. 90 of her judgment took the view that where a plaintiff furnished expert reports, which he or she later withdrew, either before or after the proceedings having commenced, the fact that they are withdrawn does not prevent a defendant from relying on s. 26 provisions, but equally the fact that a defendant has not sworn an affidavit verifying a claim does not bar a defendant from invoking the provisions of s. 26.
(i) When seeking to construe s. 26 of the 2004 Act, in a proportionate and fair manner, it is relevant to consider the extent of the falsity of the evidence, what the plaintiff hoped to gain from the false and/or misleading evidence tendered and whether the plaintiff had sought to deceive their own experts as well as those of the defendant.
83. What the court must consider:
1. The pleadings and reports and updated particulars of personal injuries. It is not necessary for me to repeat these in detail but it is quite clear from an examination of the “Further particulars of injuries” and also from the updated particulars of loss that the plaintiff claims that his quality of life is poor with pain from the neck of the left Temporomandibular joint as well as Paraesthesia in his hands with tingling and numbness and tenderness along the Para spinal muscles in the lower lumbar area with straight leg rise 80 degrees on both sides. In addition, the plaintiff advised the court and the defendant that he was unable to drive due to his symptoms or to undertake any work and was on disability benefit with severe pain particularly in the lower back and right leg and in the neck and right upper limb and that he was experiencing constant pain and discomfort in these areas.
84. In the updated particulars of loss, a claim for loss of earnings to date and for future loss of earnings (assuming retirement age at 68) were included. There was no qualification in the updated particulars of loss as to the extent of past and future loss of earnings being claimed.
85. Susan Tolan, Occupational Therapist, identified a number of significant barriers to employment as a result of her assessment, including the fact the plaintiff does not believe that he will work again in her view, and that he is therefore unlikely to either seek employment or undergo vocational training while he believes that he is unfit for work. Dr. Deirdre Gleeson, Specialist in Occupational Health, noted his complaints but felt that her physical examinations of him was normal.
The Defendant’s submissions on the Plaintiff’s evidence
86. The plaintiff described falls and lack of stability and that he had difficulty in standing for too long and that he was quite uncomfortable. He said it was like being stabbed in the lungs and that he felt that it was like “knocking the wind out of you” and that he could suffer massive spasms. In his view he is unemployable. He was particularly asked about being able to roll about the floor with reference to a photograph where his sister-in-law was falling upon him and he was laughing, and about his getting onto a rollercoaster which he described as a small mini-rollercoaster, although he accepted it it had a steep gradient and he said that he had no qualms on that. The plaintiff was also shown a different ride where he was shown descending at rapid speed and he agreed that he was enjoying himself and was not nervous and that he didn’t seem to have any pain or disability. It was pointed out that, significantly, the plaintiff admitted that his back did not trouble him after these rides. It is argued by the defence as being at variance with the reality for a man who claims to be in constant pain 99% of the time and liable to suffer a severe spasm on “sneezing”.
87. The plaintiff was shown photographs of himself cutting timber, loading and sawing, and admitted that he split the timber with an axe, that he was able to bend down, pick up blocks, load them onto a trailer and that he was able to use a chainsaw. The plaintiff admitted that he had used a chainsaw to saw the blocks and cut blocks and load the trailer all in the “one day”. He denied experiencing a velocity of vibration when it was put to him that if the log doesn’t split at all that all that velocity and momentum comes to an abrupt halt and gives a jar to the shoulder up the arm and shoulder. He said he had not experienced that. He said he did all this work in one day and that he could only use the chainsaw for a limited amount of time. He argued that he told the doctors he could do physical activity within reason until his back or his neck would no longer allow him do it.
88. The evidence of the private investigator is referred to and in particular that on the 17th September, 2015 the plaintiff’s home was put under surveillance from 10am till 12:30pm. The plaintiff was observed splitting timber for that period together with another person. Likewise, on 30th September, 2015, reference was made to the evidence gathered when surveillance was carried out on that date from 12noon till 4pm during which time the plaintiff was observed using a chainsaw. He was also observed with a younger male filling the trailer with cut logs. The plaintiff was the only person present observed cutting timber on 1st October, 2015 from 1pm to 3:30pm.
89. Again on 2nd October, 2015 the plaintiff was observed cutting timber with an axe. It was argued that none of the events referred to were once off events nor were they for a short period of time.
90. In terms of the plaintiff’s description of the accident reference is made to the reply to para. 3A of the particulars, when the plaintiff asked the question as to who had instructed the plaintiff to climb upon the hopper. By reply on 2nd August, 2013, “it was normal practice to climb onto the hopper in order to free the blockage. On the occasion in question the plaintiff had informed his supervisor (Mattie) that the hopper was blocked and that he was going to climb up to free it. While he was on the hopper freeing the hopper, he was observed by the nightshift supervisor ‘Anthony’ who passed no comment as this was a regular occurrence”.
91. At the hearing, the plaintiff described his own Sidel 2 machine breaking down and that he then went to Peter who was working on Sidel 3. The plaintiff identified that Peter was at the top of Sidel 3 machine emptying the preform orientator redbox. His evidence had been that he went to his colleague Peter and told him that he had a problem with Sidel 2, that he had tried to reset the timing on it and couldn’t get it to restart, and that Peter said to him to clean up the orientator and that Peter would go and fix the plaintiff’s machine. He then climbed on the machine where Peter was and started bending in forward, catching the preforms and throwing them back into the hopper. The defence point out that this an entirely different account was given by the plaintiff in his replies to particulars, and that his evidence of how the accident happened should have been included properly in the replies to particulars, and that the two accounts could not be reconciled. It is also pointed out that there is no independent evidence of any witness seeing the plaintiff falling or being paralysed on the factory floor. His colleague Peter denied outright any suggestion that he had directed the plaintiff to climb up on the Sidel 2 machine.
92. Although the plaintiff claimed to have reported the accident to Anthony Dignam, he said in his evidence that no such complaint was made to him.
93. It is argued that regarding a previous accident suffered by the plaintiff, he indicated in his evidence that he was only out of work for four or five weeks in relation to that accident. Nonetheless, his personal injury summons, which issued in March, 2012 regarding those injuries stated that: “the plaintiff’s injuries resulted in gross soft tissue injuries to his lower spine and his prognosis and outlook should be regarded”.
94. It is argued on behalf of the defendants that, given the plaintiff’s personal presentation in court, he sought to promote his disability. He was slow climbing into the witness box throughout the trial and maintained his varying positions of sitting and standing in court. His own subjective presentation of his symptoms, it was suggested, was misleading, and could not be reconciled with the surveillance carried out by Declan Clarke in September, 2015. In particular it was argued that a man who feels that his own hand is not his own accepted that he used a chainsaw, and a man who believes that he is liable to fall, that his legs are dead, that it is unsafe to drive a car, willingly took up a chainsaw. The plaintiff in their submission describe their clients’ employment with the defendant as a seasonal temporary employee in May, 2010, working 5pm to 10pm evening shift initially. He was obliged to man the Sidel 2 machine within the tabard area where “preform” plastic bottles were blown into full sized bottles. The work then was extended till 1:30am. The accident occurred on 15th September, 2010 at 9:30pm when the plaintiff was working on his Sidel 2 machine and a problem developed with the timing. He then went to the Sidel 3 machine and found Piotr Czernejwski standing on the frame of the machine clearing by hand a blockage of preforms in the top of the machine. Having explained his difficulty to this gentleman, he was told by him to finish up what he was doing while Mr. Czernejwski went to investigate the problem with the plaintiff’s machine.
95. The plaintiff proceeded to climb onto the frame of the machine and stood on the uppermost bar while clearing the blockage by hand. While throwing an armful of preforms back into the hopper at the foot of the conveyor he lost his balance and fell backwards. He described striking his head off something as he fell before hitting the ground, landing on his coccyx and elbows. He said that he was on the ground for one to two minutes, no more than three minutes, and that no one observed him during the period as there were only two people working in that area. After that he met Anthony Dignam, the night shift supervisor, to whom he described what had happened and whose response was to chide him for being up on that machine. The plaintiff then worked on the palleting area and was unable to do so due to pain. He told Mattie O’Brien, the evening supervisor, what had happened and that he would have to go home. The plaintiff’s evidence was that he went to a nearby carpark when driving home but that he was unable to continue and had to telephone his wife to collect him. He telephoned the following day to the day shift manager Tom Weste to explain to him what had happened and gave medical certificates for a number of weeks before the plaintiff received a P45 from the defendant in the post.
96. Tom Weste gave evidence that on 16th September, 2010 he received a phone call from the plaintiff to tell him that he had suffered a fall while clearing a blockage and the plaintiff told him he would not be able to come to work that night. Mr. Weste advised him to take the next two nights off and the plaintiff telephoned him the following Monday saying he had been to the GP and that the GP had given him a sick certificate for the following week. The plaintiff’s case was that he handed in the sick certificate in the factory. Without specific recollection, he believes that he would have handed it to the factory receptionist. His wife confirmed his version of events and that she picked up three or four medical certificates and left them into the factory over the following number of weeks and the defendant did not challenge the evidence of either of these two witnesses in relation to the medical certificates being provided to the factory. There is a conflict on the evidence in this regard in that in the plaintiff’s preliminary letter of claim, Anthony O’Loughlin, Production Operation Manager, stated by letter of 3rd March, 2011 that they had no reported accident on site on 15th September, 2010, that no accident report form was filled out, nor had they received any doctor’s cert or hospital certs to say that the plaintiff was out on sick leave. It is pointed out that it is very difficult to reconcile Mr. O’Loughlin’s evidence in this regard with the unchallenged evidence given by Mr. Weste and Mrs. Cahill.
97. The defendant failed to make contact with the plaintiff after 15th September, 2010 and the plaintiff argues that the factory was well aware that the accident had occurred and that the plaintiff had suffered an injury. That is consistent with the fact that medical certificates were handed in for a number of weeks before the plaintiff was given his P45. It is argued that the plaintiff therefore has established on the balance of probabilities that the accident described by him occurred in the course of his employment with the defendant on 15th September, 2010.
The Plaintiff’s submissions on the negligence of the Defendant
98. It is common case that there was a practice whereby employees climbed onto the frame of a machine to free a blockage and that same constituted an unsafe system of work. Mr. Jack O’Reilly, Consulting Engineer, gave detailed evidence in relation to the dimension and functions of the machine in question and stated that the upper most bar of the frame of the machine was seven feet above ground level and this was the bar on which the plaintiff says he was standing when he fell. He expressed the view that if an employee climbed onto this bar it would not be a safe system of work. The correct means of access ought to be by way of a platform with handrails and toe boards. While the defence did not dispute Mr. O’Reilly’s evidence, they claimed that the practice of climbing onto a machine did not exist and that where a blockage occurred it would a task for a fitter or senior operator to gain access using either a scissors lift or ladder. Evidence was given by Thomas Sheehan who worked as a production manager for the defendant for sixteen years. He said that the tabard was his main area and he described the different types of blockages in the preform orientation rollers which could occur a number of times in the course of a twelve-hour shift when it would be necessary to climb the machine in order to free it.
99. There was a dispute on this evidence, with a number of employees called to give evidence to refute this. The risk assessment document provided by the defendant on discovery and referred to in the evidence of Mr. O’Reilly, Engineer, identifies as a hazard the risk of a hand becoming trapped in the preform orientation rollers. Such a risk could only arise if an employee was trying to clear a blockage at the top of the machine by hand. Mr. O’Loughlin said in evidence that once a machine stopped running it would be three to four minutes before production would be affected. Mr. Pitor Czernejwski stated that once one had access to the top of the machine, it would typically take three to four minutes to clear a blockage by hand. This meant that time spent looking for a ladder or other means of access and setting it up would reduce production time. It is submitted therefore that it is entirely understandable that a practice of adopting a convenient but unsafe means of access to the top of the machine developed.
The Plaintiff’s submissions on the medical conditions of the Plaintiff
100. The objective evidence, it is submitted, shows that the plaintiff sustained a soft tissue injury to the neck, lower back, elbows and between the shoulder blades. He was treated with anti-inflammatory and pain killing medication by Dr. John Carey GP. He underwent physiotherapy. He developed, over time, radiation of pain to the lower back and to the legs, his right leg in particular, and pins and needles going down the right arm into his hand as well as pain. X-ray investigations included the following:
(i) X-rays of the lumbar spine taken on 4th February, 2014 showed an absence of the normal lumbar lordosis which was considered consistent with muscle spasm with reference to the second report of the 16th February, 2018 of Mr. Kaar.
(ii) An MRI scan of the cervical spine of 3rd June, 2015 showed degenerative changes from C3 to C7 with bilateral foraminal stenosis and degenerative change at C6/7 more so on the right than the left;
(iii) MRI scan of the lumbar spine taken on the same date, which also showed degenerative changes at L4/5 with moderate stenosis;
(iv) EMG studies of the upper and lower limbs carried out on 28th day of September, 2015 which showed chronic neuropathic features of the C7 T1 distribution on the right, implying right lower cervical radiculopathy and similar features of the LS S2 and the L2-L4 distributions in the legs, implying lumbosacral polyradiculopathy.
The plaintiff was prescribed Neurontin for nerve pain and the antidepressant Fluoxetine by his GP Dr. Morrissey in the summer of 2017. Dr. George Kaar, Consultant Neurosurgeon, saw the plaintiff on 21st December, 2015 and on 15th February, 2018, when he made positive findings on clinical examination in relation to the movement of the lower back and he considered that a fall from a height such as that described by the plaintiff would give rise to a significant strain to the neck and lower back. This doctor found that the results of EMG studies indicated irritating or stretching of the nerve roots emerging from the cervical and lumbar spines and that this was more likely to be due to trauma where there was a background of stenosis in the cervical and lumbar spine as shown on the MRI scans.
105. The doctor found that there was no improvement in the plaintiff’s symptoms and that problems with radiation of pain had increased and that the plaintiff had become depressed and he felt that that was a significant factor militating against his recovery. He described the plaintiff’s symptoms as being both physical and psychological but he did not see the plaintiff returning to his pre-accident levels of activity and he was likely to remain unfit for physical work.
106. In the plaintiff’s submissions it is argued that Dr. Seamus MacSuibhne, Consultant Psychiatrist, shortly prior to the commencement of the trial, diagnosed the plaintiff as suffering from a depressive disorder which he described as being between moderate and severe, and he said that this was an independent diagnosis and he was not reliant on medical reports concerning physical injuries suffered by the plaintiff. Its context was the pain and the impact on his life and activities of daily living. He found him not to be currently fit for work. This doctor put the plaintiff on a different medication and recommended cognitive behavioural therapy. He said the plaintiff might be fit from a psychological point of view to return to some work within a period of twelve months, all going well.
107. Dr. Gleeson by contrast felt that the plaintiff could return to “full normal duties without restriction”. She did not consider it necessary to consider the results of investigations such as MRI scans and nerve conduction studies before concluding that the plaintiff was fit for work.
108. The defendants did not challenge Dr. MacSuibhne’s evidence that the plaintiff is suffering from a depressive disorder. The Court is urged to prefer the evidence of Dr. Kaar because of his particular expertise and his clinical examination but also because of the x-ray, MRI scans and EMG studies and because of Dr. Gleeson basing her opinion solely on her clinical examination and that she did not consider the results of the various investigations had any relevance one way or the other. It is noted that Dr. Gleeson’s opinion did not appear to take into account the plaintiff’s depression and how that might be affecting his capacity to rehabilitate himself. The plaintiff argues that there is inconsistency in the defendant’s position in that initially they argue that no accident occurred and then they proceed to argue that the plaintiff exaggerates his injuries.
109. It is argued on behalf of the plaintiff that he did not give evidence to the effect that he was completely disabled. He said he had good days and bad weeks. He candidly admitted that he had used a hedge trimmer to cut hedges and a saw and axe to cut and chop timber and he agreed that he did this with the assistance of his four sons in autumn 2015, when he was under surveillance by Mr. Clarke.
110. Regarding the Facebook profile of someone other than the plaintiff who showed the plaintiff engaged in various activities, as well as the photographs taken by Mr. Clarke, Dr. MacSuibhne did not consider that any of these activities were inconsistent with this diagnosis of depression and Ms. Susan Tolan, Occupational Therapist, felt in particular that engaging in the chopping of timber was part of a family activity and that that could possibly have a therapeutic effect for the plaintiff. While the defence submissions note that Dr. Kaar accepted a proposition put to him in cross-examination that the depiction of the plaintiff in the photographs and surveillance “would not be consistent” with his presentation to Mr. Kaar, the plaintiff has no note or recollection of Mr. Kaar giving this evidence, but does recall that Mr. Kaar drew a distinction between the plaintiff chopping timber at his own pace, and as part of a regular activity which he would be expected to carry out in the course of full time employment. It is submitted that the photographic and surveillance evidence does not demonstrate that the plaintiff gave false and misleading evidence as to the extent of his disability and his inability to work. It is submitted that this material does not demonstrate that the plaintiff is fit for physical work on a full-time basis. As the report and evidence of Susan Tolan indicates, the plaintiff had a history of continuous employment prior to this accident but the work he did was of a physical nature. Although the plaintiff has obtained a FETAC qualification to work as a care assistant this is pointed out to be a physically demanding job involving heavy lifting, carrying and manual handling.
111. The submissions of the plaintiff point to the fact that it is not sufficient for a defendant to establish that the plaintiff has given false and misleading evidence on a material issue but that critically, the defence must also establish that same was knowingly given by the plaintiff. The subjective test in Aherne v. Bus Éireann [2011] IESC 44 at para. 34 is referred to. The Court must be satisfied as a matter of probability that the plaintiff knows he is giving evidence which is false and misleading. This is an important consideration in circumstances where the evidence shows that the plaintiff suffers from a significant depressive disorder. It is clear from the evidence of Dr. MacSuibhne and Mr. Kaar that the plaintiff’s depression may be affecting his perception of his injuries and his capacity to engage in meaningful activity. Dr. Gleeson suggests in her report and evidence that the plaintiff may have chronic pain syndrome, a condition which she described as having “biological, psychological and social influences”.
112. It is argued that the medical evidence in the case and the fact that the plaintiff’s mood swings in the years following this accident where this contributed to the breakdown of his marriage is at odds with the picture which the defendant seeks to paint of the plaintiff as a “malinger”. The actuarial report was admitted in evidence without formal proof. It is submitted that figures for both past and future loss of earnings are calculated on the assumption that, but for his accident, he would have obtained work as a care assistant earning €641.00 net per week. The report gives a range of figures for both past and future loss of earnings depending on the assumptions applied and the fact that the figures are put forward in the actuarial report does not equate with the plaintiff claiming that he has an entitlement to recover such sums and reference is made to Nolan v. O’Neill [2016] IECA 298 at para. 56 where Irvine J. in the Court of Appeal indicated:
“I find myself in significant agreement with the submission made by Mr. Counihan S.C. on the plaintiff’s behalf that claims for loss of earnings postdating any particular accident are always a matter of some speculation and that this is why actuaries, when they prepare their reports, often offer a range of options to a court as to the level of earnings which a plaintiff might have expected to earn had they not been injured.”
113. It is argued on behalf of the plaintiff that it is a matter for this Court to determine the extent of which the plaintiff has been or remains unfit to work and if so for how long that is likely to be the case as well as the likely path his career would have taken had the accident not occurred. In this regard, the evidence of Dr. MacSuibhne may be of some importance insofar as he expressed the view that if the plaintiff received the appropriate therapies he might be in a position from a psychological point of view to undertake some work within a period of twelve months. It is submitted that the losses set out in this report do not involve false or misleading evidence so as to engage the provisions of s. 26 in circumstances where there is no evidence to suggest he has been engaged in paid employment since the accident. The plaintiff therefore argues that the defendant has failed to discharge the onus under s. 26 of the 2004 Act.
114. The defence summed up their case by saying that there was fabrication in this case and that if the accident did happen it was the plaintiff’s own fault.
Findings of Fact
115. This Court has considered all of the evidence in the case and notes that there will always be inconsistencies to be balanced and teased out. In terms of the plaintiff’s personality, he comes across as having a willingness to please and to cooperate and, having viewed him carefully as he gave his evidence, it seems to this Court that he is a credible witness. The description of how the accident happened and the description of how he fell and the very particular injuries he suffered, are consistent with the medical evidence, in particular the medical evidence of Dr. Kaar who conducted objective testing and these are listed in the plaintiff’s submissions. Dr. Kaar, giving his particular expertise and objective testing, made findings which in the view of this Court are completely consistent with the description of his difficulties as described by the plaintiff in the medical sense. The Court pays particular attention to the expert evidence of consultant psychiatrist Dr. MacSuibhne. Dr. Kaar also felt that the Court had to take into account the impact of the man’s mental health difficulties on his capacity to rehabilitate. This was also the evidence of Dr. MacSuibhne.
116. The finding of this Court is that the plaintiff did not either exaggerate his injuries in the context of the medical evidence and suffering he had to endure, nor did he willingly mislead the court. The reverse is the case because he willingly and freely admitted that he had been assisting with the preparation of wood with other family members. Dr. Kaar pointed out that he recommended that he exercise during his visits to him.
117. This Court accepts the evidence of the plaintiff that he did produce medical certificates and the Court also accepts the evidence of his wife, from whom he is now separated, who confirmed that she brought some of the certificates in to his workplace for him when he was unwell.
118. This Court finds that the incident did in fact occur and was reasonably foreseeable and that an unsafe system of work was in place. In that regard, the Court accepts the evidence of Mr. O’Reilly, Engineer, in particular when he identified an unsafe system of work in breach of the statutory regulations with the risk of entrapment concerning manual removal of a blockage and a hazard created in how a blockage is removed with no means of climbing up.
119. The Court notes that the plaintiff had been in the course of training to take up what would have been a very good source of income for him and was unable to complete that training as a result of this accident. The Court accepts the position of the plaintiff as expressed through Counsel in relation to the guide as furnished in terms of actuarial figures, but notes also that it was submitted that the Court might prefer to deal with the matter in a general way. This gentleman has been out of work for a long period of time since this accident and at a minimum will be unable to work for at least one year from this point on in accordance with the evidence of Dr. MacSuibhne. If he receives appropriate therapies in the meantime, he may be able to resume employment.
120. This Court prefers the medical evidence adduced on behalf of the plaintiff and the evidence of Dr. Gleeson that the defendants ought to have considered the objective medical findings in terms of MRI testing etc.
121. The point made by Dr. Kaar in relation to the photographs put to him taken by the private investigator for the defence, Dr. Kaar noted that these were snapshots in time and that there was no indicator of the capacity of this particular plaintiff to resume fulltime work.
122. In relation to the other photographic evidence of the private investigator the plaintiff freely admitted to cutting wood himself but he also said in his evidence that he had “good days and bad weeks”. In the overall context of this case, the Court’s view is that this man suffered an injury which he simply should not have suffered at work, nor should he have been put in a position where he was carrying out the task which led to the accident. Sufficient equipment ought to have been in place to comply with the safety regulations as described by Mr. O’Reilly, Engineer. In addition, this Court finds that there was no fraudulent claim in this case, nor did the plaintiff mislead this Court. On the balance of probabilities this accident happened as described by the plaintiff as consistent with his injuries which are consistent with the evidence of his medical advisors. This Court considers that the sum of €85,000 to include pain and suffering to date and pain and suffering into the future is an appropriate award in the light of the above findings, and in particular in light of the medical evidence. This takes into account for at least one year as a minimum the plaintiff will not be in a position to undertake employment. His future is somewhat uncertain because if the therapies recommended by Dr. MacSuibhne do not work then he is at risk of an absence of any further improvement. The court has taken into account very carefully the link made by both Dr. Kaar and Dr. MacSuibhne of the impact of the plaintiff’s depression and mental health issues on his capacity to achieve full recovery.
123. The figure for agreed special damages is €3,450.00 and the figure awarded in general damages is €85,000 giving a grand total of €88,450 and costs on the High Court scale. Stay refused.
Massey -v- Stagg
[2017] IEHC 21 (19 January 2017)
U
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.
Sarah Quinn v Rafal Masivlaniec and Kamila Stanczk
2018/320
Court of Appeal [Unapproved]
5 October 2021
unreported
[2021] IECA 247
Ms. Justice Faherty
October 05, 2021
JUDGMENT
1. This is the defendants’ appeal against the judgment (19 July 2018) and Order (19 July 2018 as perfected on 23 July 2018) of the High Court (Butler J.) made in a personal injuries action, awarding the plaintiff damages in the sum of €219,750, comprising general damages of €210,000 and €9,750 in special damages, together with an Order awarding the plaintiff her costs.
Background
2. The plaintiff’s claim was brought in respect of personal injuries sustained by her in a road traffic accident which occurred on 2 July 2013. At the time, the plaintiff, then aged 37, was a restrained front seat passenger in a vehicle (in which her two children were also passengers) being driven by her mother when the vehicle was struck by an oncoming vehicle driven by the first named defendant. In the court below, it was accepted that the collision was “a horrendous accident”. All four occupants were trapped in the car in the immediate aftermath of the accident and had to be cut out of it, the plaintiff’s daughter being removed first, then her son, followed by the plaintiff and, latterly, her mother.
3. The plaintiff sustained physical injuries to her bowel and right wrist. She was an intensive care patient in Cavan General Hospital between 2 and 10 July 2013. An exploratory laparotomy was carried out in respect of her bowel injury. This demonstrated the presence of three perforations in the small bowel and a tear in the mesentery of the small intestine. There was a 10cm ischemic segment of the small bowel present. A CAT scan had revealed free fluid in her abdomen. Surgical management of the patient consisted of a re-section and primary anastomosis of the ischemic area of the small bowel as well as primary closure of the small bowel perforations.
4. In his report of 23 January 2017, Mr. James Geraghty, Consultant Surgeon retained by the defendants, described the injury in the following terms:
“ This patient developed a significant abdominal complication following the above road traffic accident. This resulted in perforation of the small bowel and ischemic segment of the small bowel. These are life threatening injuries which can occur with a blunt abdominal trauma. If the patient did not have the appropriate treatment, then this patient almost certainly would have had an adverse outcome.”
5. It is common case that the plaintiff suffered from constipation prior to the accident. The plaintiff attended Mr. Mulligan, Consultant General and Colorectal Surgeon on 13 September 2017, some four years and two months post accident. In both his report of 25 September 2017, and in his evidence to the High Court, Mr. Mulligan drew a link between the plaintiff’s much worsened constipation and the accident itself. In his report, he sets out the plaintiff’s complaints upon presentation for a consultation. He noted that the plaintiff could suffer from constipation for three to four days following which she would have episodes of urgency. She had also complained of rumbling or gurgling noises (borborygmic) particularly on eating. She described other abdominal symptoms which she never had pre-accident, as detailed in the report. He noted that the plaintiff also suffered left iliac fossa pain close to the anterior superior iliac spine which occurred a couple of times each month and which would last between thirty and sixty seconds. This pain would also occur upon sneezing. Examination of the plaintiff revealed a 7cm caesarean scar and a 14cm well-healed vertical midline scar (as a result of the laparotomy), “still slightly red with no appreciable evidence of incisional herniation”. The plaintiff was tender in the left iliac fossa.
6. Mr. Mulligan’s overall prognosis was that the plaintiff may:
“[a]t some future point, suffer adhesional obstruction to her small bowel. Adhesions form in up to 93 percent of patients with prior abdominal and pelvic surgery. The lifetime risk for adhesive small bowel obstruction after general abdominal surgery is reported as being up to 10%, with adhesive small bowel obstruction requiring re-operation in approximately 2.5% of all patients. … It is possible that [the plaintiff] has adhesions causing her abdominal pain, her bloating and borborygmi. If her symptoms deteriorated she may require laparoscopy with adhesiolysis ….”
7. He considered it unlikely that the plaintiff would develop an incisional hernia. He opined that the constipation from which the plaintiff now suffered “ to a greater degree after her accident and abdominal surgery…may be related to pelvic adhesions particularly involving the sigmoid colon. Laparoscopic adhesiolysis…may be required if her constipation deteriorates to a significant degree.” He further opined that in the interim if her constipation dis-improved she may be required to consider taking laxatives.
8. In oral testimony, Mr. Mulligan stated that the plaintiff’s pre-accident constipation had significantly dis-improved and worsened as a result of her “severe accident” . He opined the most likely cause for the plaintiff’s other symptoms were “ adhesions within the abdominal cavity which will happen either through infection that she obviously suffered at the time of the accident or the effect of the surgery that she had as a result of the accident.” He stated:
“Adhesions will form in about 93% of patients who have open abdominal surgery and obviously the fact that she has peripheral contamination at the time of surgery so she had some bowel content and blood within the abdominal cavity will increase the chances that those adhesions would be fibrous and thick and more likely to become symptomatic.”
9. Mr. Mulligan’s long-term prognosis was that her abdominal pain will continue to happen from time to time and may get worse and that because she had had a lot of peripheral contamination she would suffer small bowel obstruction episodes where she may be admitted to hospital for a number of days and thus was within the 10% of abdominal surgery patients to whom this may happen. He repeated his opinion that 25% of those patients would end up having surgery at some point in their lifetime to relieve those symptoms. Accordingly, the plaintiff “ may very well, over the course of the next 20, 30 years have two or three hospital admission related to a small bowel obstruction.” He repeated his view as set out in his report that the plaintiff’s constipation was likely to be related to the adhesions and if it became severe laxative therapy and/or a laparoscopy/surgery may be required.
10. Mr. Geraghty, who saw the plaintiff on 21 March 2016, states in his report of 23 January 2017 that the plaintiff “was well and appeared to have made a full recovery from the point of view of abdominal surgery in 2013”. He found the plaintiff “with no acute abdominal symptoms and no history of adhesions”. Insofar as she complained of constipation and flatus, he opined that “it is unclear if this is related to previous surgery”. His opinion was that the plaintiff “had made an excellent physical recovery although it is clear from reports in 2015 that the patient did suffer significant post traumatic stress syndrome”.
11. The surgical scar with which the plaintiff was left after the laparotomy was the subject of a report by Dr. Patricia Eadie, Consultant Plastic Surgeon, who saw the plaintiff on 22 December 2016, some three years and five months post the accident. Her report of 9 January 2017 records the plaintiff advising that the scar “was not causing her any problems”. It was described by Dr. Eadie as a 15cm pale thin vertical scar in the midline of the abdomen. Dr. Eadie’s opinion and prognosis was that the scar, while permanent, “overall has settled well”. Surgical intervention would not improve it and it “would remain as it is into the future”. The plaintiff had been seen on 16 September 2014 (approximately a year and two months post accident) by Mr. Lawlor, Consultant Plastic, Reconstructive and Cosmetic Surgeon, on behalf of the defendant, whose opinion was that the plaintiff would be left with a permanent scar which “in the fullness of time will fade”, and that tenderness then evident “will subside totally in due course”.
12. Under cross-examination, the plaintiff agreed that she did not regularly attend her doctor in relation to her stomach complaints save that in the week prior to the trial she had been prescribed a six-day course of Buscopan.
13. The plaintiff’s wrist injury comprised both radial and ulnar styloid fractures with a dislocation of the wrist. In Cavan General Hospital, it was placed in a plaster backslab but not otherwise treated orthopaedically. However, following her discharge from that hospital on 10 July 2013, she attended Our Lady of Lourdes Hospital, Drogheda for orthopaedic opinion on 12 July 2013 and on 13 July 2013 underwent a surgical procedure under general anaesthetic in the form of a reduction and fixation of her wrist in which a series of K-Wires were used for fixation. She was discharged on the same day. Her wrist was immobilized in plaster for six weeks. The K-Wires were required to be removed pursuant to a second procedure. When reviewed by Mr. Eamonn Kelly, Consultant Orthopaedic and Hand Surgeon, for the plaintiff, on 2 November 2016, some three and a half years’ post-accident, the plaintiff’s complaints were of pain after any use of her wrist and reduced lifting and carrying capacity. Examination of the wrist showed that she had full range of motion and that the overall alignment was good. There was tenderness in the carpus with some laxity of the ligamentous structures. Mr. Kelly noted that there were signs in the plaintiff’s early x-rays of some separation of the scaphoid and lunate which indicated intrinsic ligament injuries despite the surgery already carried out. His report of 12 February 2017 records that the plaintiff sustained a “very significant injury to her wrist. It was a facture dislocation with an intra-articular fracture running into the radial fossa”. While Mr. Kelly opined that the plaintiff had done well in the short term, in the long term he was of the view that her wrist was likely to deteriorate with the development of osteoarthritis. There was also a very real prospect that the plaintiff would require a further procedure in the future namely an arthrodesis or fusion of the wrist following which she would require a prolonged period of rehabilitation after the fusion and her wrist would not return to its normal pre-accident condition.
14. The plaintiff had been reviewed on 16 March 2016 by Mr. Geraghty, Consultant Surgeon for the defendants. As documented in his report of 23 January 2017, he considered that overall the plaintiff had made a good recovery from her wrist injury.
15. At trial, the plaintiff (who is right hand dominant) testified that while her wrist was in plaster over the six-week period she was in pain and had difficulty in toileting and more generally in the context of the activities of daily living. She also testified that she was in considerable pain with her wrist after the cast was removed and required physiotherapy. It took a period of time to build up mobility in her wrist. Her evidence some five years post-accident, was that while her wrist was “manageable”, there were times when it was weak, such as when picking up a kettle or a chart at work or when pushing a trolley of files. As of the date of trial, the plaintiff worked as a Team Leader/Clerical Administrator in Crumlin Children’s Hospital where she had been employed since May 2000. She testified that she could not “rely” on her wrist. Typing for long periods resulted in wrist pain. She also testified that she was apprehensive about the possibility of a future fusion, albeit she acknowledged that she had not been given an indication by Mr. Kelly as to when that would be required to be carried out. She agreed that she had not sought or received medical treatment for her wrist following the orthopaedic intervention in 2013.
16. In respect of the plaintiff’s psychological injuries, the High Court had the benefit of five medical legal reports comprising three from Dr. Robert Daly (Consultant Psychiatrist on behalf of the plaintiff) and two from the defendants’ expert, Dr. Damien Mohan. The trial judge also had the benefit of Dr. Daly’s viva voce evidence.
17. The plaintiff was referred by her General Practitioner to Dr. Daly in early 2016 and was first seen by him on 16 March 2015. Dr. Daly’s first report noted that the plaintiff had experienced a number of mental health difficulties in the aftermath of the accident. From a formal psychiatric perspective, in his opinion, she developed two difficulties. Firstly, she developed a range of post-traumatic symptoms including unpleasant memories of the accident, avoidant feelings around thinking about the accident and a range of anxiety-related difficulties. His opinion was that those difficulties represented post-traumatic symptoms (without formal/full blown post-traumatic stress disorder developing). Secondly, the plaintiff developed a range of difficulties and symptoms in relation to anxiety and these evolved into a panic disorder. She had experienced multiple panic attacks most commonly while driving. Those symptoms caused her to become anxious and avoidant of driving. He was of the view that the stress and emotional difficulties were as a result of the traumatic nature of the accident and the serious injuries experienced by multiple family members. Dr. Daly diagnosed the plaintiff as having sustained the symptoms of post-traumatic stress disorder and also an anxiety disorder manifesting in panic attacks. He also concluded that the very traumatic nature of the accident was a contributing factor towards the plaintiff’s psychological injuries.
18. Dr. Daly prescribed counselling and anti-panic medication, Xanax. As of March 2015, he was of the view that with further therapy and medication, the plaintiff’s symptoms could reasonably be anticipated to improve but that the timeframe for such improvement was difficult to determine as of March 2015.
19. In a follow up report of 9 November 2015 (having seen the plaintiff on that date) Dr. Daly was of the view that the plaintiff continued to experience adverse symptoms of a psychological and psychiatric nature as a result of the accident. He noted however that both the frequency and intensity of her panic disorder had improved and that this was as a consequence of extensive psychotherapy that she had engaged in. While the panic remained evident, the plaintiff appeared to be making fair clinical progress. Furthermore, the post-traumatic stress symptoms also appeared to have decreased in intensity overall, but a number remained evident including the anxious and avoidant features in relation to driving and the intrusive worries and memories of the accident. He noted that the plaintiff was using skills gained in psychotherapy to cope with those symptoms “to some fair affect” . While further improvement was anticipated, the exact timeframe was difficult to definitively state. He opined that she would benefit from at least a further dozen sessions of psychotherapy.
20. The plaintiff’s next attendance with Dr. Daly was in January 2017. In his report of 25 January 2017, he noted that her anxiety symptoms in relation to driving had improved and that while she drove less frequently than before the accident, she was back regularly driving. Her panic attacks had lessened both in frequency and intensity. He noted that the plaintiff had been largely panic free for many months. Following the last review in November 2015, she had attended for therapy on a fortnightly basis until September 2016. She had not taken any medications for panic or other related difficulties since November 2015. His impression was that while the plaintiff had developed a panic disorder, along with multiple post-traumatic predominantly anxiety-related symptoms, in the aftermath of the accident, “she has received comprehensive treatment for these and her condition has now stabilized”. While there remained some lingering avoidant type symptoms and a degree of anxiety in advance of driving, nevertheless the plaintiff was able to engage in driving regularly. Additionally, he considered the panic disorder “would now be considered to be in remission”. Dr. Daly found that “ the prognosis should be reasonable overall from a mental health perspective”.
21. Giving evidence, Dr. Daly stated that the plaintiff had responded well to psychotherapy, albeit he would not be surprised if she continued to have lingering symptoms of unease and anticipatory anxiety in relation to driving.
22. Under cross-examination, Dr. Daly acknowledged that he had diagnosed the plaintiff as having symptoms of post-traumatic stress disorder and not that she had post-traumatic stress disorder. He acknowledged that she had returned to work within four months of the accident and that when he last saw her in January 2017 the plaintiff was in a “pretty good state compared to the early days after the accident”. He found her “largely recovered” from her psychological injuries.
23. The plaintiff was first seen by Dr. Mohan (for the defendants) on 19 January 2016, some two years and six months post accident. In his report of 26 January 2016, he expressed the view that the plaintiff’s post-traumatic stress disorder “can be fully attributed to her experience and the severe physical injuries she sustained” . Moreover, he opined the panic attacks from which she suffered “were commonly seen with post-traumatic stress disorder” and that “[o]ther factors, in particular, the long term sequelae of her own physical injuries, her [children’s] physical injuries [and other difficulties] have contributed to her distress”. Dr. Mohan noted, however, that “there has been considerable improvement in the intensity of her post-traumatic stress disorder with the passage of time”. He expected her symptoms to improve gradually. When the plaintiff was next reviewed by Dr. Mohan on 7 February 2017, he found that “[w]ith the passage of time and the benefit of treatment, there has been some considerable improvement in [her] condition. Her post-traumatic stress symptoms had subsided considerably”.
24. The plaintiff herself testified as to the injurious impact which the accident had on her psychological well-being for which she had undergone twenty sessions of counselling. She was particularly affected by the injuries sustained by her children especially her daughter whose sojourn in hospital was some 99 days. In cross-examination, she acknowledged that she had ceased counselling in September 2016 and was taking no medication for any panic attacks or anxiety as of September 2018. Previously, however, she had been prescribed Xanax by her General Practitioner on two occasions. She stated that it was her decision not to rely on medication. She confirmed her return to work within four months of the accident and that, as of July 2018, she had completed two years of a four-year part time University degree course in Project Management, commenced in 2016, obtaining first class honours on each occasion.
The High Court judgment
25. The trial judge had available to him the medical reports referred to above, as well as the benefit of oral testimony from Mr. Mulligan and Dr. Daly, the report and evidence of Ms. Patricia Coughlan, Vocational Rehabilitation Consultant, called on behalf of the plaintiff, the report of evidence of Mr. Roger Leonard, Occupational Therapist & Vocational Evaluator (for the defendants) and the evidence of the plaintiff herself.
26. The trial judge commenced his ex tempore judgment by stating that he had read all of the reports including those in respect of which evidence had not been given.
27. He described the accident as “ horrendous” and opined that after having the benefit of the plaintiff’s evidence, he was satisfied that she was “ a very truthful witness ” “ although she may have had a different view in some respects of her injuries to medical people” . He found no element of exaggeration in her testimony.
28. The trial judge proceeded to divide the plaintiff’s injury into a number of components, namely the accident itself for which she required to be compensated, the wrist injury, the bowel injury, psychiatric trauma and the scar (which he had viewed) which resulted from the abdominal surgery. He found that there was “ some overlap ” in the injuries and proposed making an allowance for that factor. He further stated that he had regard to the Book of Quantum in relation to the bowel injury and the wrist injury and had taken full account of what it had to say in relation to those injuries.
29. The trial judge then went on to address damages in the following terms:
“The accident itself, as I say, was horrendous and the immediate aftermath was horrendous, and if one were to assess damages for that alone, I would arrive at a figure of 50,000 Euro.
The wrist injury, too, I believe was serious, and she hasn’t in any way exaggerated that she’s had symptoms in the beginning which included dropping objects like an iron and symptoms to the wrist, and she may in the future have to undergo surgery in relation to arthritic changes. It may be in the long future, but it’s today we are compensating her. So, I have taken all that into consideration in assessing damages for that alone, and as I say, its just – this is just an exercise, and I came to the figure of 60,000 Euro.
In relation to the bowel, it may sound like a simple injury, but it, too, had horrendous results for any woman or indeed, man, and she suffered acute embarrassment because of it. I appreciate that part of those draws on the evidence related to her constipation problems which pre-existed – which are pre-existing, however, they worsened as a result of the injury and as I say, she had these accidents.
In relation to the psychiatric injury, or calling it an injury, she did suffer trauma. I appreciate there is [some] … there now with the accident itself, but she suffered separate and distinct trauma for which she saw, Mr. Daly, I think, on three occasions, and Mr. Daly has been very fair in his evidence. That, by itself, would be 50,000 Euro. Again, that is to date. There isn’t a substantial future in relation to that.
In relation to the scar, I viewed this scar and its very bad and, in fact, if anyone wants to know how it looks, the photograph taken in 2016, I think, connected to her reports is a fair representation of what it looks like today.”
30. The trial judge duly assessed general damages for the plaintiff’s injuries in the sum of €310,000. Included in this figure is the €60,000 he attributed to the wrist injury, the €50,000 compensation for psychological injury and, apparently, €50,000 for the “horrendous” accident itself. The balance of the €310,000 (some €150,000) appears, by process of elimination, to have been awarded for the plaintiff’s bowel injury and the scar.
31. Acknowledging that there was “ a degree of overlap”, the trial judge proceeded to deduct €100,000 from the €310,000 sum, leaving an award of €210,000 by way of general damages to which he added a sum for special damages in the amount of €9,750, resulting in the total award of €219,750.
32. In their Notice of Appeal, the defendants advance the following grounds of appeal:
• The trial judge erred in law in awarding general damages that were excessive having regard to the evidence adduced;
• The amount of general damages constituted excessive compensation for the plaintiff;
• In engaging in a calculation exercise, the trial judge failed to give reasons for the figures arrived at;
• In engaging in a calculation exercise, the trial judge failed to refer to the plaintiff’s evidence and/or to medical or other evidence adduced by the parties or indicate any aspect of same that was accepted or rejected by him;
• The trial judge erred in holding, before engaging on the calculation exercise that led to the overall general damages figure and before making an overall deduction, that the simple fact of the plaintiff being in an accident warranted a figure of €50,000;
• The trial judge, in engaging in a calculation exercise, failed to decide upon the figures he deemed appropriate for the plaintiff’s bowel injury and scar, thereby rendering the calculation exercise defective and rendering the award of €210,000, apart from being excessive, similarly defective and unreliable;
• The trial judge, in engaging in a calculation exercise and having decided that general damages totalled €310,000, deducted €100,000 from this figure to produce an award of €210,000, failed to give any reasons by reference to the evidence to explain or justify the figures or the deduction made;
• In making the award of €210,000, the trial judge erred in law in failing to indicate what part of it represented general damages to date of trial and/or what part of it (if any) represented general damages for the future.
The parties’ submissions, in summary
33. The defendants appeal the general damages award on the basis that the trial judge’s approach and methodology to the assessment of damages as a whole amount to a serious error of law such that this Court should set aside the Order made by the trial judge and itself assess the general damages which the plaintiff is entitled to recover. Counsel asserts that insufficient reasons were given by the trial judge to sustain his findings. He contends that it cannot be ascertained from the ruling of the trial judge what evidence was preferred in the making of the award. Furthermore, there was no indication of what constituent parts of the award were for past or future suffering and there was no reference by the trial judge to any specific medical report or any opinion expressed therein.
34. It is submitted that the award of €210,000 was excessive and not in accordance with the evidence in circumstances where the plaintiff:
• as of the date of trial required no ongoing medical treatment;
• was taking no medication;
• required no rehabilitative intervention;
• had had no disruption to her working life following her return to work some four months post the accident; and,
• faced, at most, minimum future complications.
35. The defendants contend that the calculation exercise undertaken by the trial judge was not what is envisaged by the Book of Quantum albeit it is accepted that the Book of Quantum does not address psychological injury.
36. Furthermore, they describe the €50,000 award to the plaintiff for having been involved in a “horrendous accident” as an entirely impermissible head of damage as the figure awarded was not for any injury and was stated to relate solely to the fact that the accident was “horrendous”. It is argued that on the basis of this award alone, the trial judge erred such that there is a sufficient basis for the Court to reduce the €210,000 sum by €50,000.
37. The plaintiff’s position is that while the approach and methodology of the trial judge to the overall calculation of damages could be said to be wanting, at the end of the day, the award made by the trial judge should not be disturbed as the award can be entirely sustained by this Court having regard to the guidance set by Irvine J. in Shannon v. O’Sullivan[2016] IECA 93.
Discussion
38. The first issue for this Court is whether the threshold for interference with the trial judge’s award of general damages is met.
39. The test to be applied by the Court in deciding whether it should interfere with an award of general damages was articulated by Griffin J. in Reddy v. Bates[1983] I.R. 141:
“It is well settled that this Court cannot set aside the verdict of a jury on the grounds that the damages are excessive unless, adopting a view of the facts which is most favourable to the plaintiff, no reasonable proportion exists between the amount awarded and the circumstances of the case…”
40. That test was refined in Dunne v. Honeywell Controls Limited (Unreported1 July 1993) where Blaney J. noted that the Court no longer had the task of adopting the view of the facts most favourable to the plaintiff because “its decision is based on the findings of the High Court judge”.
41. As said by Fennelly J. in Rossiter v. Dun Laoghaire Rathdown County Council (31 October 2001), [2001] IESC 85:
“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’
…
The test is one for application as a general principle – even if McCarthy J, in Reddy v Bates …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’”. (at para. 14)
42. He went on to opine:
[The 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 an appropriate one, regardless – it need 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…”
43. More recently, in Nolan v. Wirenski[2016] IECA 56, Irvine J. opined that “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” (at para. 23) She stated:
“…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.” (at para. 25)
44. The caution urged on an appellate court by both Fennelly J. in Rossiter and Irvine J. in Nolan is clearly predicated on the appellate court being satisfied that the trial judge has “considered all the evidence” and that the damages award ultimately made is proportionate to the injuries sustained, having regard to the evidence upon which the award is based and account being taken, where appropriate, of the guidance provided by case law and (in recent times) the Book of Quantum.
45. The fundamental difficulty that presents in this case is that the reasoning and explanation for the award is not set out in the judgment to any satisfactory degree. Save for stating that he had read all of the reports including those in respect of which evidence had not been given, that he had regard to the Book of Quantum in relation to the bowel and wrist injuries, and that the plaintiff was a truthful witness who had not exaggerated her claims, the trial judge does not explain the precise engagement with the evidence which led him to the conclusions he arrived at. As I have said, that is a fundamental difficulty in this case. Even if the type of calculation exercise the trial judge engaged in could be considered appropriate (and in my view it was not), he does not explain what elements in the oral and documentary evidence led him to fix upon €60,000 as appropriate for the plaintiff’s wrist injury, €50,000 for her psychological injury or, even if compensating the plaintiff for the “horrendous” nature of the accident separate to the award for psychological injury were a permissible approach (and I am satisfied it was not), why an award of €50,000 was found to be appropriate for this head of damage. I should say at this juncture that I accept the defendants’ contention that the award of €50,000 for the accident (no matter how “horrendous” ) cannot be sustained, and that this award of damages, of itself, amounts to an error of law on the part of the trial judge.
46. Furthermore, the Court is simply left to deduce that some €150,000 of the initial €310,000 sum awarded was to compensate the plaintiff for her bowel injury and the scar left by the abdominal surgery, without any indication from the judgment as to why that figure was arrived at or what factors in the evidence led the trial judge to that figure.
47. It is also striking that having made the calculations he did, the trial judge nowhere explained why he picked the sum of €100,000 as the appropriate figure to subtract from the €310,000 figure, even if I were satisfied, which I am not, that either the calculation or subtraction exercise was appropriate in the first instance. All in all, the figure arrived at by the trial judge by way of general damages cannot attract any presumption of correctness given that, to paraphrase Fennelly J. in Rossiter, this Court is not in a position to discern from the judgment of the trial judge the findings of fact upon which damages have been assessed.
48. What was required of the trial judge was that he would engage, and be seen to engage, with the evidence tendered by the parties. As said by Irvine J. in Nolan:
“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.” (emphasis added)
49. To paraphrase Clarke J. (as he then was) in Doyle v. Banville[2012] IESC 25, [2018] 1 I.R. 505, the trial judge was required to engage with the key elements of the case made by both sides and explain why one side’s evidence was preferred over the other.
50. As I have observed, bar saying that he had regard to the medical reports and the evidence in the case and the Book of Quantum, it is not apparent to this Court (or indeed the parties) what factors in the evidence persuaded the trial judge to fix upon the sums he did for the components of the plaintiff’s injuries in respect of which he awarded damages. The identification of such factors was required, however, particularly given the differing views expressed by the medical experts in relation to the future prognosis for the plaintiff as a result of her abdominal and wrist injuries, a matter to which I shall return in due course.
51. Given the failings of the trial judge, the restraint with which an appellate court should ordinarily approach an appeal of a damages award made by a trial judge cannot be considered as the applicable approach in the present case. Accordingly, it falls to this Court to itself review the evidence and arrive at a quantum of general damages for the plaintiff. How then is the Court to go about its task?
52. There is a plethora of case law offering guidance on this task. The principles that can be derived from the authorities can be summarised as follows:
• Fundamentally, the objective is to arrive at a figure for general damages which is fair and reasonable (as per O’Higgins C.J. in Sinnott v. Quinnsworth[1984] ILRM 523;
• The award must be proportionate, taking account of societal factors, bearing in mind the common good and ensuring fairness for the plaintiff and fairness for the defendant. (Denham J. in M.N. v. S.M.[2005] 4 IR 461, at p. 474);
• Proportionality must be assessed firstly against the yardstick of the cap (presently €500,000) set for the most serious personal injuries. Secondly, as a general principle, the award should reasonably align with awards given by the courts for similar injuries (M.N. v. S.M.[2005] 4 IR 461, at p. 474), always, however, bearing in mind that the award is personal to the particular plaintiff and that the overall objective is to provide that plaintiff with reasonable compensation for the pain and suffering that he or she has endured. As said by Irvine J. in Nolan:
“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”.
• Where applicable, regard should be had to the Book of Quantum.
53. It is of course the case that the Book of Quantum has now been replaced by the Personal Injuries Guidelines issued pursuant to s. 90 of the Judicial Council Act 2019. These Guidelines have the same objective as the Book of Quantum, that is to promote consistency in the level of damages awarded for personal injuries (s.90(3)(d)). However, the focus of this Court will be on the Book of Quantum, where appropriate, being the relevant guidelines for present purposes.
54. As observed by Noonan J. in McKeown v. Crosby[2020] IECA 242:
“The Book of Quantum seeks to introduce a measure of predictability, at least where it can be said that the injury in question is capable of categorisation and is one that has affected the plaintiff in a way that it might affect most people. There will of course always be points of departure from the norm and a relatively minor finger injury for example, may affect a concert violinist very differently from, say, a clerical worker. This is something that the range of damages for a particular injury is designed to accommodate.” (at para. 25)
55. Noonan J. went on to state that in cases where the Book of Quantum is clearly relevant:
“it would assist the court’s considerations to hear submissions from the parties about how it should be applied, or perhaps whether it should be applied at all. Recent judgments of this court, such as Nolan v Wirenski, have drawn attention to the fact that it is important for trial judges to explain how particular figures for damages are arrived at, since otherwise the appellate court is left in the dark about the trial judge’s approach and whether it ought to be regarded as correct or not. The review process on appeal would be greatly assisted by reference to the categorisation and severity of the injury provided for in the Book of Quantum, assuming that to be feasible. If on the other hand the trial judge considers that the Book has no role to play in the particular circumstances of the case, it would be very helpful for the appellate court to know why that is so.” (at para. 31)
56. In the course of their respective submissions to this Court, counsel for the plaintiff and the defendant have both attributed value ranges for the plaintiff’s injuries by reference, inter alia, to the Book of Quantum.
57. In cases like the present, where there are multiple injuries, the guidance provided by the Book of Quantum is that “it is not appropriate to simply add up values for all the different injuries to determine the amount of compensation. Where additional injuries arise [in addition to the most significant injury] there is likely to be an adjustment within the value range”. This guidance would appear to chime with the dictum of Irvine J. in Nolan that the assessment of damages is not a simple calculation exercise. In Leidig v. O’Neill[2020] IECA 296, Noonan J.’s approach to the quantum of damages was to adopt the adjustment type approach referred to in the Book of Quantum.
58. I turn now to the task in hand, namely the assessment of fair, reasonable and proportionate general damages for the plaintiff, having regard to the medical evidence and the testimony of the plaintiff herself. Assistance for the task is found in Shannon v. O’Sullivan[2016] IECA 93. There, in similar vein to what she set out in Nolan, Irvine J. outlined “a useful yardstick” by which a court should decide what is proportionate in terms of damages. She stated:
“…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 [now €500,000] …” (at para. 34)
59. As to the actual assessment of general damages, at para. 43, Irvine J. suggested the following roadmap:
“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?”
60. I propose, generally, to adopt Irvine J.’s roadmap.
61. Undoubtedly, the accident in which the plaintiff was involved was, as described by the trial judge, “horrendous”. She sustained a significant injury to her bowel and a significant injury to her right wrist. She was hospitalised for eight days as a result of the bowel injury during which she underwent surgical intervention. The exact nature of the bowel injury and sequelae is already well rehearsed earlier in this judgment as is the treatment afforded to her. There is really no difference of opinion between Mr. Mulligan and Mr. Geraghty in this regard. Indeed, as put by Mr. Geraghty, the plaintiff’s bowel injury was “life threatening…If the patient did not have the appropriate treatment, then this patient almost certainly would have had an adverse outcome.”
62. Within a day of her discharge from Cavan General Hospital, the plaintiff had to attend Our Lady of Lourdes Hospital Drogheda for orthopaedic repair to her wrist. She had pain in the wrist in the six weeks her wrist was in plaster and she was in a lot of pain after the cast was removed and required physiotherapy. She outlined in her evidence how she was discommoded while her arm was in plaster.
63. The plaintiff was able to return to work within four months of the accident. While in her evidence she described difficulties with her wrist when pushing a trolley at work and pain if she engaged in typing for long periods, there is no evidence following her return to work that her ability to carry out her work has been impaired by the sequelae from her bowel or wrist injuries or indeed because of the psychological injury she also undoubtedly sustained, such that she had to take time off work. The counselling sessions she engaged in for her psychological injury and the medication for that injury apart, the extent of the medical treatment she has received for her physical injuries since the surgeries on her stomach and wrist has been a six-day course of Buscopan for her stomach complaints.
64. I turn now however to the long-term prognosis for the plaintiff, and the submissions made by the respective counsel as to what would constitute appropriate damages for the plaintiff having regard to the injuries she sustained and the likelihood of future pain and suffering.
65. As regards the bowel injury, in his submissions to the Court, counsel for the plaintiff points to the evidence given by Mr. Mulligan that the plaintiff’s present problems, and the projected long-term problems that will arise for her, are as a result of the spillage of bowel into the abdominal cavity which occurred at the time of the accident and which, according to Mr. Mulligan, will increase the likelihood of adhesions in the future. Counsel further submits that the medical evidence suggests that the plaintiff’s pre-accident constipation has moved from being physiological to being pathological, again based on Mr. Mulligan’s evidence. He asserts that for all of the reasons set out by Mr. Mulligan, and having regard to the plaintiff’s ongoing symptoms, the plaintiff’s bowel injury must be viewed at the most serious level for which, counsel says, the upper limit of damages of €93,900 as provided for in the Book of Quantum is inadequate as it does not factor in the surgical intervention in the small bowel which the plaintiff underwent. He submits that, at the very least, given the evidence of Mr. Mulligan, and indeed that of the defendants’ expert, Mr. Geraghty that the injury was “life threatening”, the damages award has to be at the very top of the Book of Quantum.
66. On the other hand, counsel for the defendants submits that the plaintiff’s main complaint arising from the bowel injury, as of the date of trial, was that her pre-accident constipation had been exacerbated by the accident and the resultant surgery to her bowel, and that as a consequence she had had “accidents” which had caused her embarrassment. He points to the fact that the plaintiff has had little or no treatment for her condition save the course of Buscopan she was prescribed in the week leading up to the trial. Counsel also points to Mr. Mulligan’s evidence that if the plaintiff took laxatives, it would reduce the incidence of accidents.
67. The defendants point to the views expressed by Mr. Geraghty in his report of 23 January 2017 wherein he concluded that the plaintiff had made “a full recovery” from her abdominal surgery with “no acute abdominal symptoms and no history of adhesions”, and his conclusion that it was “unclear” if the plaintiff’s ongoing complaints of constipation and flatus related to her bowel surgery. This is the evidence upon which the defendants primarily rely in asserting that the bowel injury was not such as merits the highest level of damages for such injury as per the Book of Quantum, but rather falls into the €70,000 to €75,000 range for such injury, inclusive of compensation to the plaintiff for the scar with which she has been left following the abdominal surgery. The defendants also rely on the fact the plaintiff made no complaint about her scar save to say that she was bothered by its presence. Counsel points out that the plaintiff’s plastic surgeon, Dr. Eadie, in her report of 22 September 2016, stated that the scar had settled well. Equally, Mr. Lawlor, the plastic surgeon for the defendant, in his report, expressed the view that the scar would fade in the fullness of time.
68. It is this €70,000 to €75,000 level of damages which, the defendants maintain, should be adjusted upwards to take account of the other injuries sustained by the plaintiff, namely that to her right wrist, and her psychological injury. Counsel suggests that an appropriate sum to compensate her for those latter injuries would be a composite €50,000 award which, when added to the compensatory amount for the plaintiff’s bowel injury, would put general damages for the plaintiff somewhere between €120,000 to €150,000, at most.
69. Counsel for the plaintiff does not accept the defendants’ contention that the figures for bowel injury as set out in the Book of Quantum take account of the abdominal scar with which the plaintiff has been left. He contends that the scar must attract its own importance and monetary compensation, put by counsel in the region of €30,000 to €35,000, over and above the compensatory award for the bowel injury.
70. I cannot totally accept the plaintiff’s counsel’s submission that the plaintiff’s scar is to be treated entirely separately to her bowel injury. The plaintiff underwent a laparotomy. The Book of Quantum provides that “the normal treatment for injuries to the intestines is surgery to open the abdomen (laparotomy)…”. Logically, therefore a surgical scar will ensue. That being said, however, the nature and extent of the plaintiff’s scar, being 15cm vertical midline scar, which is permanent, is an aggravating factor to be taken account of, in addition to her other ongoing complaints arising from her bowel injury (her most significant injury), when considering which band within the Book of Quantum’s guidelines on damages for bowel injuries most appropriately applies to the plaintiff’s injuries, and indeed when considering whether the upper limit of €93,900 for such injuries would provide adequate compensation for the particular injury suffered by the plaintiff.
71. There is really no dispute between the parties that the plaintiff’s bowel injury falls with the band of “severe and permanent conditions” in the Book of Quantum, which attracts a level of damages between €61,900 to €93,900. As already referred to, counsel for the defendants contends that the bowel injury including the scar should be assessed somewhere between €70,000 to €75,000, based largely on Mr. Geraghty’s medical report, as referred to earlier.
72. To my mind, however, as far as the bowel injury is concerned, the view of Mr. Mulligan’s (Consultant Colorectal Surgeon), as expressed in his report of 15 September 2017, is persuasive evidence that the plaintiff’s present complaints of abdominal pain, her bloating and the borborygmi may well arise from adhesions caused by the accident, or the effect of the surgery that she had as a result of the accident. He also opined that “[a]t some future point, [she will] suffer adhesional obstruction to her small bowel” perhaps resulting in her hospitalisation on two or three occasions over the next thirty years, based on the statistical analysis he conducted, as set out in his report and oral evidence. He was furthermore of the view that the constipation from which the plaintiff now suffered “ to a greater degree after her accident and abdominal surgery…may be related to pelvic adhesions particularly involving the sigmoid colon” and that “[l]aparoscopic adhesiolysis…may be required if her constipation deteriorates to a significant degree.”
73. I accept all of the foregoing on the balance of probability, and thus, Mr. Mulligan’s opinion is to be preferred over that expressed by Mr. Geraghty. The prognosis for the plaintiff, coupled with the permanent scar with which she has been left, puts her firmly at the upper end of the “severe and permanent” damages band for bowel injury in the Book of Quantum. Therefore, this upper damages limit cannot, in the circumstances of this case, be considered as sufficient to encompass fair compensation for the plaintiff’s cluster of injuries and must, at best, be the baseline upon which to build when considering what is fair and just compensation for the entirety of the plaintiff injuries.
74. Turning next to the plaintiff’s wrist injury. The defendants submit that the plaintiff had not received any treatment for the injury save the initial surgeries and plaster of paris, and some physiotherapy after the plaster of paris was removed. Counsel points to the view expressed by Mr. Geraghty that the plaintiff had made a good recovery from her wrist injury. While it is acknowledged that the fracture was intra-articular, and that osteoarthritis could arise in the long term, it was nevertheless counsel’s view that the damages figure arrived at by the trial judge was excessive.
75. Counsel for the plaintiff disputes the defendants’ argument and points to Mr. Kelly’s report of 1 February 2017, where the injury was described as “very significant”. It was a fracture dislocation with an intra-articular fracture running into the radial fossa. Accordingly, counsel submits that a figure of €70,000 in respect of the wrist injury would be the appropriate figure by way of damages.
76. I accept that the wrist injury was very significant. While the wrist has healed well, as of 2 November 2016, when the plaintiff was seen by Mr. Kelly, there were nevertheless concerns given that in the early x-rays there were signs of the effects of the dislocation, namely “some separation of the scaphoid and lunate which would indicate intrinsic ligament injuries”. Mr. Kelly’s view was that while the plaintiff had done well in the short term, her wrist was likely to deteriorate in the long term with the development of osteoarthritis. As set out in Mr. Kelly’s report, “ this condition is known as carpal instability. It has a bad reputation and often may result in treatment by way of an arthrodesis or fusion of the wrist”. While Mr. Kelly opined that from a functional point of view the fusion would improve the plaintiff’s condition, in the interim she would have lost a range of motion and have significant onset of pain. Post the fusion, the plaintiff would be able to operate a computer and function. The fusion, however, “ would not return her back to normal”.
77. That being said, I must, however, also take account of the fact that the plaintiff was able to return to work some four months after the accident and that she has continued to be able to function in her employment notwithstanding that on occasions her wrist causes her problems at work when typing and pushing a trolley. I also note that a grip strength test carried out by Mr. Leonard in May 2018 indicated that the plaintiff’s right-hand grip strength, albeit lower than that of her left, was within the average range for a woman of her age. Overall, however, given the orthopaedic opinion expressed by Mr. Kelly, I would nevertheless categorise the level of damages for the wrist injury as falling in the “severe to permanent conditions” band of damages in the Book of Quantum for which the suggested damages range from €68,400 to €78,000. This band is described as follows:
“Complex and multiple fractures to the bones within the wrist which required extensive surgery and extended healing but may result in an incomplete union and the possibility of having or has achieved arthritic changes and degeneration of the wrist and may affect the ability to use the wrist.”
I would tend to the view, given the plaintiff’s present level of functioning, while at the same time taking account of what she may face in the future, that a sum approaching the lower end of this band would be a fair supplement to the baseline figure which I have earlier indicated represents the starting point for compensatory damages in this case.
78. In relation to the plaintiff’s psychological injury, the defendants’ position is that having regard to the evidence overall, including that relating to the plaintiff’s work and career since the accident, the €50,000 awarded to her by way of compensation for psychological injury was excessive and should be set aside particularly in light of the trial judge’s failure to reason his valuation findings to any adequate extent and his failure to take account of those elements of the evidence that would militate against the valuation at which he had arrived.
79. I am satisfied that the plaintiff’s psychological injuries were very significant for a period of time. The reports of Dr. Daly and Dr. Mohan attest to that, irrespective of whether the plaintiff had full blown post-traumatic stress disorder or just symptoms of that disorder coupled with episodes of anxiety. Clearly, the adverse effect on the plaintiff’s psychological health began with the nature of the accident itself, in particular the fear she experienced when her son was unresponsive while they were trapped in the car, the later impact on the plaintiff when she learnt of her daughter’s very serious injuries as a result of which the child was in intensive care and had been given the Last Rites, and the anxiety the plaintiff herself developed after the accident, especially around driving. All of those factors resulted in her having to undergo twenty sessions of psychotherapy as recommended by Dr. Daly.
80. It is clear, however, that by and large, the plaintiff had recovered from her psychological injury by the end of 2016, albeit she may have some lingering anxieties. Indeed, even in the years 2013-2016, albeit her psychological symptoms were ongoing, she persevered with getting on with her life including returning to work as quickly as she did. Since 2016, she has embarked on a third level university degree course. All of this is to her credit. It must, however, also inform the quantum of damages for psychological injury. It is also noteworthy that the plaintiff’s attendance with Dr. Daly in January 2017 was for the purpose of obtaining a medical-legal report and not for therapeutic intervention.
81. I have already determined that the trial judge’s award of €50,000 for the “horrendous” nature of the accident (over and above the award made for psychological injury) cannot be allowed to stand. In fairness, counsel for the plaintiff is not seeking to stand over the award damages for the “horrendous” accident. Instead, his position is that the €50,000 award for psychological injury given by the trial judge should be revised upwards to take account of the “horrendous” accident.
82. I am satisfied that the general damages award which I outline below takes fair account of the psychological injury visited on the plaintiff as a result of the accident while also bearing in mind the extent to which she has recovered from her psychological injury.
83. In passing, I note that in written submissions, counsel for the plaintiff had countered the defendants’ assertion that the plaintiff cannot be compensated for the horrendous nature of the accident by relying on the decision in Leahy v. Rawson[2004] 3 I.R. 12. However, the reliance on Leahy was not pursed in oral argument. Suffice it to say, therefore, that my own view is that reliance on Leahy, given its factual matrix, could never have been of any real assistance to the plaintiff in this case.
Overview and conclusion
84. Taking due account of the significant bowel injury the plaintiff sustained, together with her ongoing sequelae and the scar with which she has been left as a result of the abdominal surgery, Mr. Mulligan’s prognosis for the plaintiff consequent on the bowel injury and surgery, adding to that the fact that the plaintiff must be compensated for her wrist injury and the prognosis relating thereto, and taking account also of her psychological injury from the date of the accident to at least the end of 2016, I consider that the appropriate figure by way of compensation for the plaintiff’s pain and suffering to date and into the future is €175,000.
85. I consider that this €175,000 sum should be broken down as follows:
€135,000 to reflect the plaintiff’s pain and suffering to date, having regard to the following:
• the “life-threatening” bowel injury she sustained;
• the surgical intervention the bowel injury gave rise to and the sequelae arising from that surgery (including the surgical scar);
• the exacerbation of her pre-existing constipation;
• her very significant wrist injury and the surgical procedures it required;
• her ongoing significant psychological injury from the date of the accident to the end of 2016.
The balance (€40,000) of the €175,000 award is by way of compensation for pain and suffering into the future.
86. I am satisfied that the aforesaid breakdown reasonably accords with the tenor of the medical evidence of Mr. Mulligan and Mr. Kelly to which I have had regard, as outlined earlier in the judgment, as well as with Dr. Daly’s evidence and the evidence of the plaintiff herself.
87. When the €9,750 special damages sum is added to the award of €175,000, this results in a decree in favour of the plaintiff in the sum of €184,750, which I now propose substituting for the €219,750 award made by the trial judge.
Costs
88. As can be seen, I have concluded that the trial judge erred, inter alia, in failing to set out the evidential basis for his award of general damages and/or in failing to give reasons for the figures he arrived at, with the result that this Court was required to embark upon a primary analysis of the evidence, ultimately concluding that a general damages award of €175,000 is fair and reasonable compensation for the plaintiff’s pain and suffering to date and into the future.
89. At the end of the day, however, irrespective of the frailties in his methodology, the figure of €210,000 general damages which the trial judge arrived at cannot be said ultimately to have been grossly disproportionate in the sense articulated by Fennelly J. in Rossiter by his reference to a “rule of thumb” of a 25% discrepancy, as had been outlined by McCarthy J. in Reddy v. Bates. Here, the differential between the trial judge’s award and the figure arrived at by this Court is materially less than twenty five percent. In other words, the “reasonable proportion” between the award of damages in the High Court and what the court sitting on appeal would be inclined to give has not been breached.
90. While therefore, I would allow the appeal in this case to the extent and for the reasons set out in the judgment, it seems to me that the less than twenty five percent differential here between what the trial judge awarded and what this Court has awarded may be a basis, firstly, for no order as to costs to be made against the plaintiff in the appeal and secondly, perhaps a platform upon which the plaintiff may wish to argue that she should be entitled to some portion of her costs in the appeal. Accordingly, the parties are hereby invited to make their submissions on costs within twenty one days from delivery of judgment, bearing in mind the Court’s preliminary observations on the issue.
91. As this judgment is being delivered electronically, Whelan J. and Collins J. have indicated their agreement therewith.
Powney -v- Bovale Construction Ltd. & ors
[2017] IEHC 441 (07 July 2017)
JUDGMENT of Ms. Justice Creedon delivered on the 7th day of July, 2017
Background
1. The plaintiff was born on 31st December, 1986 and lives with his partner and children in Lusk, Co. Dublin. He is currently unemployed.
2. The plaintiff brings these proceedings in negligence against the named defendants arising from an accident alleged to have occurred on 18th January, 2011 at Mayeston Square Apartment Complex , St. Margaret’s Road, Finglas, Dublin 11.
3. At the time of the accident, the plaintiff was a visitor at the apartment complex within the meaning of the Occupiers’ Liability Act 1995.
The Plaintiff’s Case
4. The plaintiff gave evidence that on the date of the accident he was visiting his friend Lee Clinton at the complex. He stated that he visited the complex frequently, at least twice weekly over the preceding year and a half.
5. He stated that he was carrying an empty fish tank through a common entrance doorway at the apartment complex accompanied by his friend Lee Clinton and partner Nadia Bell. He further stated that he was aware that the closing mechanism on the door was not functioning correctly and that Lee Clinton went ahead of him and put his foot against the door to keep it open as the plaintiff passed through. He stated that Mr. Clinton received a call on his mobile phone and took his foot from the door. The plaintiff stated that this caused the door to slam back against the fish tank causing the tank to break resulting in the injuries to the plaintiff.
6. Photographs were provided to the Court of the door taken by the plaintiff on the 24th May, 2011 showing the broken closing mechanism
7. Mr. Clinton in his evidence confirmed the circumstances of the accident as outlined by the plaintiff. He also gave evidence that the closing mechanism had been broken for a prolonged period of time prior to the accident and particularly, remembered it being an issue for him over Christmas. Ms. Bell was some distance behind and was not able to confirm the details of the circumstances of the accident. She did give evidence of attending the Emergency Department of Beaumont Hospital with the plaintiff after the accident.
8. Agreed Medical Reports of Mr. Brian Kneafsey were provided to the Court.
9. A joint inspection by Consulting Engineers was carried out on 17th December, 2015. At that time the closing mechanism on the door had been repaired. A report on behalf of the plaintiff was provided by Consulting Engineer Pat Culleton who also gave evidence.
The Defendant’s Case
10. It was contended by the defence that the accident did not happen in the manner described. This contention centred on the medical records from the Emergency Department of Beaumont Hospital and the evidence of Dr. Kelada.
11. Dr. Kelada confirmed the contents of his notes and in particular the description of the circumstances of the accident recorded by him as being as a result of an argument at home. He had no specific memory of the plaintiff or the case. In his evidence in relation to the nature and location of the injury, he stated that the injury was caused by glass but could not say whether this was more likely to have been caused in the manner outlined by the plaintiff or in any other manner.
12. Arising from the joint inspection referred to earlier, a report on behalf of the defendant was provided by Sean Walsh Consulting Engineer who gave evidence.
13. Joanne Fleming Director of Fisher Property Management gave evidence as to the system operated by the company for inspection, repair and maintenance of the properties they manage including the location of the incident the subject matter of these proceedings. It was her evidence that a janitor would be present at the property for a couple of hours each day and that over the course of a week/10 days a full inspection of all the blocks in that development would take place.
14. She stated that complaints could be made to them through this janitor. She further stated that, at the time of the accident, no complaints had been received by the company in respect of the closing mechanism of the door. She stated that complaints had been received in respect of the lock on the door and that issue had been remedied.
15. This evidence was confirmed by Richard O’Brien Maintenance Supervisor with Fisher Property Management.
Evidence arising under cross examination
16. The plaintiff, Mr. Clinton and Ms. Bell all strenuously denied that the injuries had been sustained in any manner other than that set out by them in their evidence.
17. While Fisher Property Management asserted that the first notification they had of the matter was a letter received from the Personal Injuries Assessment Board (PIAB) in April 2012, it emerged under cross examination that the plaintiff’s solicitors had written to Fisher Property Management as early as 18th March, 2011. While this correspondence had initially been sent to the wrong address, an acknowledgement of receipt of the correspondence was sent by the company to the plaintiff’s solicitors in March, 2011.
18. Fisher Property Management was not able to confirm the date of the repair of the closing mechanism of the door in question. They were unable to counter the plaintiff’s evidence that the closing mechanism had been faulty for up to six weeks before the incident and had remained unrepaired on 24th May, 2011.
Credibility & Causation
19. The Court takes a very serious view of false or misleading claims being put before the courts and has carefully considered the contention by the defendants that the accident occurred in circumstances other than those set out by the plaintiff. The plaintiff gave evidence of the manner in which he sustained his injuries at the Mayeston Square Apartment complex on the 18th January 2011 and was supported in this evidence by Mr. Clinton and Ms. Bell. The plaintiff initiated correspondence in respect of the matter as early as the 18th March 2011. In that correspondence he sets out the circumstances as set out by him in court. These are also the circumstances outlined at the joint engineering inspection. The plaintiff, Mr. Clinton and Ms. Bell all strenuously denied that the injuries had been sustained in any manner other than that set out by them in their evidence.
20. Dr. Kelada gave evidence to confirm the circumstances of the injury as that recorded by him in his notes. He had no specific memory of the plaintiff or the case and with regard to the nature of the injury, he confirmed that it was caused by glass but could not counter the evidence that it was caused in the manner alleged by the plaintiff.
21. On balance, the Court finds that the accident occurred as set out by the plaintiff.
22. Fisher Property Management Limited being responsible for the repair and maintenance of the door at the centre of these proceedings owe a duty of care to the plaintiff within the meaning of the Civil Liability Act 1961.
23. The evidence establishes that, on the balance of probabilities, the closing mechanism on the door was not functioning correctly on the date of the incident.
24. The evidence further establishes that on the balance of probabilities the mechanism was not functioning correctly for some time before the incident, and at least up to the 24th May 2011, up to two months after Fisher Property Management limited was made aware of the matter.
25. It was reasonably foreseeable and a probable consequence that this defect would cause damage or injury.
26. The plaintiff was frank in his admission that he was aware that the closing mechanism in the door was broken. Despite this knowledge he chose to embark on a dangerous manoeuvre by carrying a glass fish tank through the faulty door resulting in his injuries. Liability for the incident should be apportioned between the plaintiff and the defendant.
Injuries
27. The injuries are as set out in the agreed medical reports. In summary, the plaintiff sustained a deep, complex laceration on the dorsal aspect of his right hand with division of several extensor tendons to include the two main tendons into the thumb and one of the smaller tendons into the index finger. He was admitted that day for surgery that was carried out the next day. The extensor tendon to the thumb was repaired and the plaintiff was placed in a plaster cast. He came back to hospital two weeks later when it became apparent that the tendon repair had ruptured. This required further surgery to re-repair. Further repair proved impossible and the tendon was reconstructed using a tendon graft. He was once again placed in a plaster cast. The most recent report dated the 10th January 2017 confirms that the plaintiff has some sensation of discomfort and tightening after long use of his hand as well as a slightly reduced range of motion of his thumb but this is not causing him major functional problems. He has now been assessed as essentially having normal functioning. He does have obvious scars on the back of his hand. The scar measures approximately 13 cm in length and is permanent. Now, some six years after the accident, no change in this position is expected
Conclusion
28. Given the plaintiff’s knowledge of the defect and the level of control that he had when embarking on the manoeuvre, I find that the defendant was 20% responsible for this accident and the plaintiff was guilty of 80% contributory negligence.
29. In assessing damages in this case, I have had regard to the helpful guidelines set 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. In the course of her judgment in the latter case, Irvine J. stated that it has been long 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.”
30. Taking all of these matters into account, I measure damages in the sum of €65,000, for pain and suffering to date with €10,000 for future pain and suffering and special damages measured at €3020.82. On apportionment this gives an award to the plaintiff of €15,604.16
Leonard v The Minister for Public Expenditure and Reform
[2018] IEHC 649 (22 November 2018)
JUDGMENT of Mr. Justice Twomey delivered on the 12th November, 2018
Summary
1. This case concerns a claim for compensation for a soft tissue injury to a shoulder in which counsel for the applicant relied on the Book of Quantum to seek compensation of €20,000. However, this Court concludes that the appropriate amount of compensation is considerably less than the figure which counsel says the Book of Quantum indicates is appropriate, since this Court will make an award of €8,000 of compensation/general damages and €60 special damages, the special damages relating to the applicant’s out of pocket medical expenses, namely the costs he incurred in GP visits.
2. The Court does so, not in reliance on the recent report of the Personal Injuries Commission chaired by the former President of the High Court which calls for the downwards ‘ recalibration’ of awards for personal injuries, since this Report is not binding on this Court. Rather it does so in reliance upon the principles regarding the assessment of damages set down by the Court of Appeal and Supreme Court and which are binding on this Court, including the recent caselaw of the Court of Appeal, which the High Court has described as amounting to a downwards ‘ recalibration’ of personal injury awards.
3. In light of the discrepancy between the figure suggested by his counsel, in reliance on the Book of Quantum which suggests an award of up to €32,500 for minor injuries to a shoulder, and the award made by this Court, this Court will briefly outline in this judgment the principles which this Court is required by the Court of Appeal and the Supreme Court to apply in assessing damages for personal injuries.
Background
4. The claim for compensation for personal injury is made by Garda Leonard under the Garda Compensation Acts arising from a soft tissue injury to his left shoulder which was incurred during the course of his duties. On 11th July, 2014 Garda Leonard sustained an injury to his left shoulder in a fall while chasing a suspect attempting to evade arrest. He attended an out-of-hours GP service following the incident and was subsequently referred to the Emergency Department of his local hospital. He was assessed at the Emergency Department and x-rays revealed no fractures to his left shoulder. He was discharged with pain killers and anti-inflammatories.
5. He was on sick leave for about 5 days and resumed normal duties at work thereafter.
6. On 21st July, 2014 he attended his GP due to ongoing pain. The GP diagnosed a sprain to the left A/C joint and treated him with a steroid injection which was repeated in October 2014. He was also treated with anti-inflammatory medication at that time by his GP. Medical evidence provided to this Court is that this was the end of the medical intervention in this case and that Garda Leonard has made a full recovery from this soft tissue injury.
7. No evidence was given of a previous claim by Garda Leonard and so it appears that this is Garda Leonard’s first compensation claim under the Garda Compensation Acts.
8. Against this background, this Court will consider the principles applicable to the assessment of damages.
Book of Quantum
9. Counsel for Garda Leonard referred to the Book of Quantum. This provides that minor injuries to the shoulder receive awards of ‘up to €32,500′. Such ‘minor’ injuries are described as:
‘mild injuries where there is no tearing of the ligament, and often no elbow movement is lost, although there may be tenderness and slight swelling which has substantially recovered’.
In addition, the Book of Quantum provides that ‘moderate injuries’ to the shoulder receive awards of ‘€22,000 to €60,900′. Such ‘moderate’ injuries are described as:
‘caused by a partial tear in the ligament’ and ‘characterised by obvious swelling, extensive bruising, pain, and reduced function of the shoulder with a full recovery expected’.
Upon this basis, counsel for Garda Leonard argued that he should be awarded compensation of in the region of €20,000.
10. As this Court is awarding Garda Leonard €8,000, it will outline the principles applicable to assessing damages in personal injury cases.
Downward recalibration of damages sought by Personal Injuries Commission
11. Before doing so, reference will be made to the recent Report of the Personal Injuries Commission which was chaired by Mr. Nicholas Kearns, former President of the High Court. This Report provides that certain personal injury awards in Ireland are 4.4 times higher than those in England and Wales and that there was a need for a ‘ rebalancing and recalibration of Irish awards’ (at page 7).
12. In a recent media interview (Irish Independent 29th September, 2018), the current Chief Justice of Ireland, Clarke C.J. stated that this ‘report has to be taken seriously’ and that:
‘if damages are significantly higher in Ireland than they are for like cases in many other countries, that has consequences for competitiveness and jobs’
and that
‘I don’t think we necessarily have to have a race to the bottom and have the same level of damages as the country with the least, but I think we need to be in the ball park.’
13. It is important to note that these comments of former President Kearns and Clarke C.J. were extra-judicial and thus while undoubtedly of huge significance because they come from the current Chief Justice and from a former President of the High Court, they cannot be directly relied upon by this Court in reaching its decision.
The principles which actually govern the calculation of damages
14. However, what is binding on this Court are the recent decisions of the Court of Appeal in personal injury cases which have in fact been described by the High Court, in the exact same language as that used by the Personal Injuries Commission, since it stated that these Court of Appeal decisions amounted to a downwards ‘ recalibration’ of damages in certain personal injury actions of 45-50% (as set out in more detail in Kampff v. Minister for Public Expenditure and Reform [2018] IEHC 371).
15. This, and the other key principles set out below apply to this Court’s calculation of awards, whether in the form of compensation under the Garda Compensation Acts to a member of An Garda Siochána or in the form of general damages for pain and suffering to other members of the public.
16. These principles, which are derived from numerous Court of Appeal and Supreme Court decisions have been dealt with in detail in the Kampff case and so it is proposed only to summarise them here:
(I) Is the award fair to the plaintiff and defendant
As noted by Irvine J. in Nolan v. Wirenski [2016] IECA 56 at para 31:
“Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant.”
In every case in which damages are being assessed, this principle will assume considerable importance and the Court must consider not only whether the amount of damages proposed is reasonable in light of the pain and suffering which the plaintiff/applicant has had to endure previously and into the future, but also whether the amount of damages is a reasonable amount to ask a defendant/respondent to pay for accidentally causing the pain and suffering in question. Different principles, including the possibility of aggravated. exemplary or punitive damages, may apply if the damage was caused intentionally by the defendant who is paying the damages.
(II) Does the award reflect the downward recalibration of damages?
In assessing damages in this case, this Court is bound by the recent downwards recalibration by the Court of Appeal of up to 50% in personal injury awards. It is this approach of the Court of Appeal and also the principles set down by the Supreme Court to the assessment of damages, and not the Book of Quantum, which is binding on this Court. In this case, counsel for Garda Leonard referred to the fact that in the Book of Quantum minor shoulder injuries receive ‘ up to €33,500′ and moderate shoulder injuries receive awards between ‘€ 22,000 to €60,900′ . However, as noted in the Kampff case, not only are these Book of Quantum figures not binding on this Court, they do not take account of the effect of the downwards recalibration of personal injury awards effected by the Court of Appeal. Accordingly, this Court must approach the figures in the Book of Quantum relied upon by counsel with considerable caution.
(III) Is the award proportionate to the cap on damages so as to avoid concertina effect?
The next principle derives from a number of cases including the Supreme Court decision in M.N. v. S.M . [2005] IESC 17 and the Court of Appeal decision Wirenski . It is whether the proposed award, of general damages for pain and suffering, as distinct from special damages, is proportionate to the general cap on damages for catastrophic/quadriplegic injuries. As noted by Irvine J. in Wirenski at para 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. ”
At para 42, she noted:
“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.”
Compliance with this ‘ proportionate’ principle is important in order to avoid what the Court of Appeal described in Payne v. Nugent [2015] IECA 268 as the ‘ concertina’ effect on damages. The judgment in Payne v Nugent refers to four classes of injuries, namely modest, middle-ranking, serious and catastrophic. It then goes on to discuss the necessity for awards of damages to avoid the ‘ concertina effect’ , in order to avoid an injustice being caused to persons with catastrophic injuries or serious injuries. This injustice would arise if persons with modest injuries, such as a soft tissue injury to a shoulder, receive awards which are not significantly less than those received by persons with middle ranking injuries , which are themselves not significantly less than those received by persons with serious i njuries such as a loss of a limb, which themselves are significantly less than those with catastrophic injuries/quadriplegia.
While it is undoubtedly easier to compare serious injuries such as loss of a limb with catastrophic injuries which are in some way comparable (than it is to compare a modest soft tissue injury with catastrophic injuries), nonetheless this principle may be of some assistance even in awards for modest injuries, particularly in view of the importance of avoiding the ‘ concertina’ effect as outlined by the Court of Appeal.
In this case, one could apply this principle by asking whether the suggested award of €20,000 for the pain and suffering arising from a soft tissue injury to a shoulder, which is 1/23rd of €450,000 (being in general the maximum award for the pain and suffering for a quadriplegic/catastrophic injury), is proportionate in light of the respective pain and suffering attaching to these two types of injuries. It is this Court’s view that it would not be proportionate and that an award of €8,000 would be more proportionate and consistent with the need to avoid the ‘concertina’ effect
(IV) Is the award reasonable in light of average earnings in the State?
The principle, that the amount of the award of general damages, as distinct from special damages, should be reasonable in light of the average earnings in the State derives from a number of cases beginning with the Supreme Court case of Sinnott v. Quinnsworth [1984] ILRM 523.
As noted in the Kampff case, average earnings for full-time workers in the State are currently in the region of €45,000. One way in which this principle can be applied is as follows. One could ask in this case whether the pain and suffering arising from the soft tissue injury to Garda Leonard’s shoulder is of such magnitude that, if the defendant were an individual making the average earnings in the State, it would be reasonable to require that defendant, who accidentally caused the injury to Garda Leonard, to notionally work for over 5 months to earn €20,000 and then hand over those wages as compensation to Garda Leonard for his pain and suffering?
It is this Court’s view that an award of €20,000 for the shoulder injury suffered by Garda Leonard, which has fully recovered and led to one or two GP visits and to five days out of work, would not be reasonable in light of average earnings in the State.
(V) Has appropriate scepticism and common sense been applied to claim?
The final principle, as noted by O’Donnell J. in the Supreme Court case of R osbeg Partners v. LK Shields [2018] IESC 23, is that appropriate scepticism and common sense has to be applied to claims by plaintiffs for damages, not because of any dishonesty on their part, but simply because human nature is such that memories and accounts as to the extent of the damage claimed tend to become ‘ unwittingly adjusted’ because of the potential financial consequences for plaintiffs of their evidence.
In this case however, Garda Leonard gave his evidence in a very matter of fact manner and in addition, the primary evidence before the Court was uncontroverted medical evidence regarding the treatment and the length of his absence from work. Accordingly, in this instance applying appropriate scepticism and common sense to the evidence does not lead to any particular treatment of the evidence before the Court.
Conclusion
17. Applying the foregoing five principles, this Court does not believe that the soft tissue injury to Garda Leonard’s shoulder is such that an award of €20,000 should be made. This Court concludes that €8,000 in general damages and €60 in special damages (which special damages were agreed by Garda Leonard) is the appropriate level of award for the soft tissue injury to Garda Leonard’s shoulder and that such an award is fair to the applicant and the respondent.
Unnecessary cost to the taxpayer
18. Finally, this Court notes that unfortunately, this case is yet another example of a case involving very modest injuries (as illustrated by the award of €8,000) where the total legal costs are likely to be a multiple of that amount. This is because every Garda Compensation case, no matter how minor, has to be heard in the High Court (at considerable cost to the taxpayer, who pays not only the State’s legal costs but also those of the injured guard). In the Kampff case, it was noted that savings of millions of euro in legal costs could be made for the taxpayer if Garda Compensation cases were heard in the District Court or the Circuit Court, as appropriate, or indeed with no legal costs, before the Personal Injuries Assessment Board (“PIAB”), particularly since Garda Compensation cases, as assessment only cases, are ideally suited for a body such as the PIAB, whose sole function is to do assessment of personal injury awards.
Leonard v The Minister for Public Expenditure and Reform
[2018] IEHC 649 (22 November 2018)
JUDGMENT of Mr. Justice Twomey delivered on the 12th November, 2018
Summary
1. This case concerns a claim for compensation for a soft tissue injury to a shoulder in which counsel for the applicant relied on the Book of Quantum to seek compensation of €20,000. However, this Court concludes that the appropriate amount of compensation is considerably less than the figure which counsel says the Book of Quantum indicates is appropriate, since this Court will make an award of €8,000 of compensation/general damages and €60 special damages, the special damages relating to the applicant’s out of pocket medical expenses, namely the costs he incurred in GP visits.
2. The Court does so, not in reliance on the recent report of the Personal Injuries Commission chaired by the former President of the High Court which calls for the downwards ‘ recalibration’ of awards for personal injuries, since this Report is not binding on this Court. Rather it does so in reliance upon the principles regarding the assessment of damages set down by the Court of Appeal and Supreme Court and which are binding on this Court, including the recent caselaw of the Court of Appeal, which the High Court has described as amounting to a downwards ‘ recalibration’ of personal injury awards.
3. In light of the discrepancy between the figure suggested by his counsel, in reliance on the Book of Quantum which suggests an award of up to €32,500 for minor injuries to a shoulder, and the award made by this Court, this Court will briefly outline in this judgment the principles which this Court is required by the Court of Appeal and the Supreme Court to apply in assessing damages for personal injuries.
Background
4. The claim for compensation for personal injury is made by Garda Leonard under the Garda Compensation Acts arising from a soft tissue injury to his left shoulder which was incurred during the course of his duties. On 11th July, 2014 Garda Leonard sustained an injury to his left shoulder in a fall while chasing a suspect attempting to evade arrest. He attended an out-of-hours GP service following the incident and was subsequently referred to the Emergency Department of his local hospital. He was assessed at the Emergency Department and x-rays revealed no fractures to his left shoulder. He was discharged with pain killers and anti-inflammatories.
5. He was on sick leave for about 5 days and resumed normal duties at work thereafter.
6. On 21st July, 2014 he attended his GP due to ongoing pain. The GP diagnosed a sprain to the left A/C joint and treated him with a steroid injection which was repeated in October 2014. He was also treated with anti-inflammatory medication at that time by his GP. Medical evidence provided to this Court is that this was the end of the medical intervention in this case and that Garda Leonard has made a full recovery from this soft tissue injury.
7. No evidence was given of a previous claim by Garda Leonard and so it appears that this is Garda Leonard’s first compensation claim under the Garda Compensation Acts.
8. Against this background, this Court will consider the principles applicable to the assessment of damages.
Book of Quantum
9. Counsel for Garda Leonard referred to the Book of Quantum. This provides that minor injuries to the shoulder receive awards of ‘up to €32,500′. Such ‘minor’ injuries are described as:
‘mild injuries where there is no tearing of the ligament, and often no elbow movement is lost, although there may be tenderness and slight swelling which has substantially recovered’.
In addition, the Book of Quantum provides that ‘moderate injuries’ to the shoulder receive awards of ‘€22,000 to €60,900′. Such ‘moderate’ injuries are described as:
‘caused by a partial tear in the ligament’ and ‘characterised by obvious swelling, extensive bruising, pain, and reduced function of the shoulder with a full recovery expected’.
Upon this basis, counsel for Garda Leonard argued that he should be awarded compensation of in the region of €20,000.
10. As this Court is awarding Garda Leonard €8,000, it will outline the principles applicable to assessing damages in personal injury cases.
Downward recalibration of damages sought by Personal Injuries Commission
11. Before doing so, reference will be made to the recent Report of the Personal Injuries Commission which was chaired by Mr. Nicholas Kearns, former President of the High Court. This Report provides that certain personal injury awards in Ireland are 4.4 times higher than those in England and Wales and that there was a need for a ‘ rebalancing and recalibration of Irish awards’ (at page 7).
12. In a recent media interview (Irish Independent 29th September, 2018), the current Chief Justice of Ireland, Clarke C.J. stated that this ‘report has to be taken seriously’ and that:
‘if damages are significantly higher in Ireland than they are for like cases in many other countries, that has consequences for competitiveness and jobs’
and that
‘I don’t think we necessarily have to have a race to the bottom and have the same level of damages as the country with the least, but I think we need to be in the ball park.’
13. It is important to note that these comments of former President Kearns and Clarke C.J. were extra-judicial and thus while undoubtedly of huge significance because they come from the current Chief Justice and from a former President of the High Court, they cannot be directly relied upon by this Court in reaching its decision.
The principles which actually govern the calculation of damages
14. However, what is binding on this Court are the recent decisions of the Court of Appeal in personal injury cases which have in fact been described by the High Court, in the exact same language as that used by the Personal Injuries Commission, since it stated that these Court of Appeal decisions amounted to a downwards ‘ recalibration’ of damages in certain personal injury actions of 45-50% (as set out in more detail in Kampff v. Minister for Public Expenditure and Reform [2018] IEHC 371).
15. This, and the other key principles set out below apply to this Court’s calculation of awards, whether in the form of compensation under the Garda Compensation Acts to a member of An Garda Siochána or in the form of general damages for pain and suffering to other members of the public.
16. These principles, which are derived from numerous Court of Appeal and Supreme Court decisions have been dealt with in detail in the Kampff case and so it is proposed only to summarise them here:
(I) Is the award fair to the plaintiff and defendant
As noted by Irvine J. in Nolan v. Wirenski [2016] IECA 56 at para 31:
“Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant.”
In every case in which damages are being assessed, this principle will assume considerable importance and the Court must consider not only whether the amount of damages proposed is reasonable in light of the pain and suffering which the plaintiff/applicant has had to endure previously and into the future, but also whether the amount of damages is a reasonable amount to ask a defendant/respondent to pay for accidentally causing the pain and suffering in question. Different principles, including the possibility of aggravated. exemplary or punitive damages, may apply if the damage was caused intentionally by the defendant who is paying the damages.
(II) Does the award reflect the downward recalibration of damages?
In assessing damages in this case, this Court is bound by the recent downwards recalibration by the Court of Appeal of up to 50% in personal injury awards. It is this approach of the Court of Appeal and also the principles set down by the Supreme Court to the assessment of damages, and not the Book of Quantum, which is binding on this Court. In this case, counsel for Garda Leonard referred to the fact that in the Book of Quantum minor shoulder injuries receive ‘ up to €33,500′ and moderate shoulder injuries receive awards between ‘€ 22,000 to €60,900′ . However, as noted in the Kampff case, not only are these Book of Quantum figures not binding on this Court, they do not take account of the effect of the downwards recalibration of personal injury awards effected by the Court of Appeal. Accordingly, this Court must approach the figures in the Book of Quantum relied upon by counsel with considerable caution.
(III) Is the award proportionate to the cap on damages so as to avoid concertina effect?
The next principle derives from a number of cases including the Supreme Court decision in M.N. v. S.M . [2005] IESC 17 and the Court of Appeal decision Wirenski . It is whether the proposed award, of general damages for pain and suffering, as distinct from special damages, is proportionate to the general cap on damages for catastrophic/quadriplegic injuries. As noted by Irvine J. in Wirenski at para 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. ”
At para 42, she noted:
“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.”
Compliance with this ‘ proportionate’ principle is important in order to avoid what the Court of Appeal described in Payne v. Nugent [2015] IECA 268 as the ‘ concertina’ effect on damages. The judgment in Payne v Nugent refers to four classes of injuries, namely modest, middle-ranking, serious and catastrophic. It then goes on to discuss the necessity for awards of damages to avoid the ‘ concertina effect’ , in order to avoid an injustice being caused to persons with catastrophic injuries or serious injuries. This injustice would arise if persons with modest injuries, such as a soft tissue injury to a shoulder, receive awards which are not significantly less than those received by persons with middle ranking injuries , which are themselves not significantly less than those received by persons with serious i njuries such as a loss of a limb, which themselves are significantly less than those with catastrophic injuries/quadriplegia.
While it is undoubtedly easier to compare serious injuries such as loss of a limb with catastrophic injuries which are in some way comparable (than it is to compare a modest soft tissue injury with catastrophic injuries), nonetheless this principle may be of some assistance even in awards for modest injuries, particularly in view of the importance of avoiding the ‘ concertina’ effect as outlined by the Court of Appeal.
In this case, one could apply this principle by asking whether the suggested award of €20,000 for the pain and suffering arising from a soft tissue injury to a shoulder, which is 1/23rd of €450,000 (being in general the maximum award for the pain and suffering for a quadriplegic/catastrophic injury), is proportionate in light of the respective pain and suffering attaching to these two types of injuries. It is this Court’s view that it would not be proportionate and that an award of €8,000 would be more proportionate and consistent with the need to avoid the ‘concertina’ effect
(IV) Is the award reasonable in light of average earnings in the State?
The principle, that the amount of the award of general damages, as distinct from special damages, should be reasonable in light of the average earnings in the State derives from a number of cases beginning with the Supreme Court case of Sinnott v. Quinnsworth [1984] ILRM 523.
As noted in the Kampff case, average earnings for full-time workers in the State are currently in the region of €45,000. One way in which this principle can be applied is as follows. One could ask in this case whether the pain and suffering arising from the soft tissue injury to Garda Leonard’s shoulder is of such magnitude that, if the defendant were an individual making the average earnings in the State, it would be reasonable to require that defendant, who accidentally caused the injury to Garda Leonard, to notionally work for over 5 months to earn €20,000 and then hand over those wages as compensation to Garda Leonard for his pain and suffering?
It is this Court’s view that an award of €20,000 for the shoulder injury suffered by Garda Leonard, which has fully recovered and led to one or two GP visits and to five days out of work, would not be reasonable in light of average earnings in the State.
(V) Has appropriate scepticism and common sense been applied to claim?
The final principle, as noted by O’Donnell J. in the Supreme Court case of R osbeg Partners v. LK Shields [2018] IESC 23, is that appropriate scepticism and common sense has to be applied to claims by plaintiffs for damages, not because of any dishonesty on their part, but simply because human nature is such that memories and accounts as to the extent of the damage claimed tend to become ‘ unwittingly adjusted’ because of the potential financial consequences for plaintiffs of their evidence.
In this case however, Garda Leonard gave his evidence in a very matter of fact manner and in addition, the primary evidence before the Court was uncontroverted medical evidence regarding the treatment and the length of his absence from work. Accordingly, in this instance applying appropriate scepticism and common sense to the evidence does not lead to any particular treatment of the evidence before the Court.
Conclusion
17. Applying the foregoing five principles, this Court does not believe that the soft tissue injury to Garda Leonard’s shoulder is such that an award of €20,000 should be made. This Court concludes that €8,000 in general damages and €60 in special damages (which special damages were agreed by Garda Leonard) is the appropriate level of award for the soft tissue injury to Garda Leonard’s shoulder and that such an award is fair to the applicant and the respondent.
Unnecessary cost to the taxpayer
18. Finally, this Court notes that unfortunately, this case is yet another example of a case involving very modest injuries (as illustrated by the award of €8,000) where the total legal costs are likely to be a multiple of that amount. This is because every Garda Compensation case, no matter how minor, has to be heard in the High Court (at considerable cost to the taxpayer, who pays not only the State’s legal costs but also those of the injured guard). In the Kampff case, it was noted that savings of millions of euro in legal costs could be made for the taxpayer if Garda Compensation cases were heard in the District Court or the Circuit Court, as appropriate, or indeed with no legal costs, before the Personal Injuries Assessment Board (“PIAB”), particularly since Garda Compensation cases, as assessment only cases, are ideally suited for a body such as the PIAB, whose sole function is to do assessment of personal injury awards.