Remoteness of Loss
Cases
O’Mahony v. Henry Ford and Son Ltd.
[1962] IR 146
Maguire C.J.
In this action the plaintiff claims damages for negligence on the part of the defendants for failing to provide a safe system of work whereby he claims that he developed cancer of the breast.
The action was tried in Cork before Mr. Justice Maguire, sitting with a jury. At the close of the evidence for the plaintiff, and again at the close of the defendants’ case, application was made to the trial Judge to withdraw the case from the jury and enter judgment for the defendants, on the ground that there was no evidence to justify the jury in finding for the plaintiff. This application was refused. The jury disagreed. The defendants now appeal to this Court and ask that judgment be entered for them on the ground that the learned trial Judge should have acceded to the application made to him. The plaintiff’s case was that he had been employed by the defendants as a riveter and that over a long period of time he had been permitted to use the tools necessary for his job, viz., a bar, called a “dolly bar,” and an electrical riveting machine by resting these against his chest. He claims that as a result of the vibration which was an incident of the use of these tools he developed cancer of the breast.
On the evidence the jury, in my opinion, would be entitled to find that (a) the plaintiff used the “dolly bar” and the riveting machine in the manner described; (b) the defendants knew of, and permitted, this practice; (c) that physical injury to the plaintiff as a result of this practice was foreseeable; (d) that as a result of the use of these tools injury was caused to the skin and surrounding tissues; (e) that as consequence the plaintiff developed cancer.
In the course of the argument the question was raised whether the principle of In re Polemis and Furness, Withy & Co. (1) should be accepted and whether its application to the circumstances of this case should be considered. In that case stevedores were shifting some cases of benzine in a ship. Owing to their negligence a plank fell into the hold, struck some object and caused a spark which ignited some petrol vapour and set fire to the ship. It was found that it could not reasonably have been anticipated that the falling of the plank would set up a spark although some damage might reasonably have been anticipated. The stevedores were held liable, Scrutton L. J. saying (at p. 577):””To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage; if he would not, the act is not negligent. But if the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results. Once the act is negligent, the fact that its exact operation was not foreseen is immaterial.”
It is submitted that if this be accepted as a correct statement of the law the plaintiff would be entitled to succeed if the jury find that the use of the tools mentioned might have been anticipated to cause some injury, even though it might not reasonably have been foreseen that it would cause cancer.
As I understand the principle of In re Polemis and Furness, Withy & Co. (1) it has no application where the damage caused is of the exact kind which any reasonable person would foresee. Cancer is a physical injury. If the plaintiff’s case be accepted the cancer was directly caused by the use of the bar and the riveting machine. Although according to the plaintiff’s evidence he only felt a soreness in the region where the cancer subsequently developed, it seems to me clear that whether the plaintiff was conscious of it or not the cancer must have been preceded by injury to the skin or the tissues beneath the skin where the cancer developed. It was, accordingly, a direct result of action of the tools which the workman was using.
One cannot draw a clear line of demarcation between the initial physical hurt and the cancer which resulted from it. The one is a continuation of, and directly connected with, the other and is the same kind of damage, viz., physical injury. Although, therefore, the development of cancer may not have been foreseeable it may properly be held to be the direct consequence of the defendants’ negligence. Accordingly, in my view, it is unnecessary to invoke the principle laid down in In re Polemis and Furness, Withy & Co. (1).
Therefore, in my opinion, the appeal fails and should be dismissed.
LAVERY J.
In the action in which this appeal arises the plaintiff, who is employed by the defendants, in their factory in Cork, as a riveter, claims damages for injuries which he claims to have sustained in the course of his work due to the negligence of his employer.
The liability of an employer who has failed to establish a safe system of work is well settled and it is not necessary in this case to do more than refer to the words of Lord Herschell in Smith v. Baker & Sons , (2) where he said (at p. 362):””It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk.”
In the course of his work the plaintiff was called on to use two types of tools, one called a “dolly bar” and the other a driller.
The plaintiff claims that these tools were not fit for the purpose for which they were used and, alternatively, that the manner in which he was required to use them was unsafe and he claims that in consequence of his work he has sustained cancer of the left breast. There is unfortunately no doubt that he is suffering from this disease and is in a serious condition: but the defendants maintain 1, that the plaintiff did not in fact use the tools in the way he described; 2, that such user was not unsafe; 3, that such user was not known to, or permitted by, the defendants nor were they in fault in not having such knowledge; 4, that the disease has not been caused by the plaintiff’s work; 5, that if so caused, this consequence could not reasonably have been foreseen by the defendants.
The learned trial Judge, Mr. Justice Maguire, was asked by the defendants to withdraw the case from the jury and enter judgment for them on the ground that there was no evidence capable of supporting a finding that the disease was caused by the plaintiff’s work and no evidence that the tools provided or the manner in which the work was done was dangerous”or that, if dangerous, the danger should have been foreseen and guarded against.
I should set out what, in my opinion, the issues of fact which might have arisen were:”1, Did the defendants direct that the plaintiff should use the “dolly bar” or the driller in the manner in which he said he did?
2, Did the plaintiff use the tools in this way?
3, If so, did he in consequence suffer injury?
4, Did the defendants know that the plaintiff used the tools as he said he did, and, with such knowledge, permit him so to use them?
5, Was the disease from which the plaintiff suffers caused by the use of the alleged defective tools?
6, Should the defendants have reasonably anticipated that the plaintiff would suffer any injury by working in this way?
The trial Judge ruled that the case should go to the jury and left one question only:””Were the defendants negligent?” This was the question proposed by the plaintiff’s counsel but counsel for the defendants submitted that a series of questions, more or less on the lines of the issues I have set out, should be put.
The jury failed to agree, so there has been no verdict, but it is of course competent for the defendants to challenge in this Court the ruling of the Judge and to submit that judgment should now be entered for them.
Save in respect of two matters it is unnecessary to set out or to examine the evidence in detail.
In my opinion the jury could find that the system of work was unsafe in the sense that it might cause some physical injury to the worker and that the probability of such injury being caused could reasonably have been anticipated.
It is with some doubt that I have come to this conclusion.
I think the jury could find that the alleged system might cause some injury such as bruising of the chest, though the plaintiff did not suffer any such injury nor was there any evidence that any other worker did so.
There is not, in my opinion, any evidence that the defendants could have reasonably foreseen that the system of work would cause cancer. The evidence does support, assuming a particular view is taken, that the plaintiff’s condition may have been in fact caused by his work. The particular form of the disease is very rare in men and doctors of great experience over many years gave evidence that a very small number of cases have come under their notice, in some of which the origin of the disease could not be determined. The evidence also establishes the well-known fact that the causation of cancer, notwithstanding all the research made, is still largely unknown.
This situation raises for consideration the much discussed case of In re Polemis and Furness, Withy & Co. (1).
I quote from the headnote:””The question whether the damage could reasonably have been anticipated is relevant only on the question whether the act is or is not negligent.”This case was discussed by me in delivering the judgment of the Court in the case of Ring v. Power (2), but it was not considered necessary to apply the decision in the facts of that particular case. The judgments in the Court of Appeal are there examined and I need not repeat this examination. In giving judgment in Ring v. Power (2) I said, commenting on this decision:””. . . I doubt whether in any particular case the law of negligence well established and generally understood will not be found adequate to determine liability or non-liability.”
The Polemis Case (1) has been followed in innumerable cases in England in the High Court and the Court of Appeal, but the issue has never been brought to the House of Lords (3). It has been the subject of discussion by judges, text-writers and essayists, notably by Lord Wright ((1951) 14 Modern L. R. 393); Lord Porter ((1934) 5 Cambridge L. J. 176); Professor McNair (as he was at the time he wrote) ((1931) 4 Cambridge L. J. 125); Dr. Goodhart (68 L. Q. R. 514) and Professors H. L. Hart and A. M. Honoré (Causation in the Law. 1959). Some of these writers support the decision, others challenge it.
The decision is not binding on this Court but it would be wrong not to give it the most careful consideration so far as may be necessary on the facts of this case.
I have read these essays carefully and it would be useless and is unnecessary to discuss them at length in this judgment. I certainly could not hope to settle the many difficulties and, unlike the essayists, I am not called on to attempt to do so.
The function of this Court is only to determine the law which has to be applied in the case before it.
I need not concern myself with whether the measure of damages is different in cases of breach of contract and in cases of tort. This case has been presented purely as a claim in tort”though like the cases of In re Polemis and Furness, Withy & Co. (1) and Thurogood v. Van Den Berghs & Jurgens Ltd. (2) an element of contract may come in as the duty said to have been violated arises from the relation of master and servant. It is the practice to deal with these cases as claims in tort and that was done here.
In the Polemis Case (1) there was a finding by arbitrators that the defendants were negligent. No attempt was made to challenge this finding which, being one of fact, was accepted as binding, on the hearing of a case stated by them.
In Thurogood’s Case (2) the trial Judge, Devlin J. (as he then was), held that the defendant had been imprudent in placing an electric fan on the floor (which was the act complained of) because someone stooping over it might run the risk of his necktie being caught in the blades. The learned judge was trying the case without a jury and his judgment apparently is unreported, but Dr. Goodhart in the article already referred to quotes (at p. 515) from this judgment the following:”
“If, for example, the plaintiff had been injured because his tie had been caught while he had been stooping over the machine I could see no defence. But in fact his injury did not happen in that way. It happened in a way that is still unexplained; and since no one can do more than guess how he came to put his hand on the blades, it is impossible to say that the defendants ought to have foreseen that he might.”This finding of fact was not questioned in the Court of Appeal.
and the judgments proceed on the basis that negligence of culpability had been established and that the only matter to be considered was whether injury of a kind not foreseen or foreseeable but which was caused should be compensated for in damages.
It seems to me that in both these cases the question as to negligence might well have been argued”I do not know to what extent it was argued”and it is clear that the decisions as to the measure of damages were based on the finding” considered to be final”that the respective defendants were negligent.
The most extreme application of the supposed rule was in Thurogood’s Case (1). Dr. Goodhart calls it “The case of The Imaginary Necktie.” I have already quoted from the judgment of the trial judge.
In the Court of Appeal Asquith L.J. said in the course of his judgment (at p. 552):””Applying . . . the test whether damage of some kind (for instance, the ‘necktie’ kind) can be reasonably anticipated as likely to result from the defendant’s act, he [the Judge] ‘determines the quality of the act’ as negligent.” This having been determined “It only remained for him . . . to decide whether the ‘particular damages,’ namely, the damage actually sustained, is recoverable . . . the foreseeability of the damage actually sustained is wholly irrelevant: directness of causation is the sole criterion of recoverability. The actual damage may be wholly different in character, magnitude or in the detailed manner of its incidence from anything which could reasonably have been anticipated.”
In my opinion this goes further than anything said in the Polemis Case (2). In that case Scrutton L.J. said (at p. 577):””To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage; if he would not, the act is not negligent. But if the act would or might probably cause damage, the fact that the damage it in fact causes is not theexact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results. Once the act is negligent, the fact that its exact operation was not foreseen is immaterial.”(The italics are mine).
This statement seems to me to be more limited than that of Lord Justice Asquith.
Damage not of the “exact kind” foreseeable and damage”wholly different in character, magnitude or in the detailed manner of its incidence” from any damage foreseeable are not, it seems to me, the same thing.
But this distinction, if it be a valid one, does not, I think, affect the present case.
In neither of these cases was the question considered whether any damage of the nature reasonably foreseeable had in fact been caused. This consideration was treated as irrelevant.
Though not considered, it was the position that in the Polemis Case (1) the foreseeable damage which might be caused by the fall of the plank was not suffered and the damage actually caused, but not foreseeable, was certainly not of the same “exact kind.”
The position is the same”even more extreme”in Thurogood’s Case (2). The foreseeable damage, that a worker wearing a necktie might suffer injury, was considered sufficient to support an award of damages for injury not foreseeable, though there was no evidence that any workers wore neckties and therefore no evidence that there was any possibility that the wearing of neckties by the workers could have caused any injury. I fail to see any foundation for a finding of negligence even in the abstract against the employers in this case. It may well have been the case that they, by supervision of the dress of the workers or by prohibition of the wearing of neckties, had taken the most scrupulous care to protect the workers from the foreseeable risks. Mr. Justice Devlin said no more than that if the workers wore neckties the conduct of the employers should be considered imprudent.
I have examined these cases at this length in order to show that a question which seems to me fundamental was not dealt with therein.
That question is:”Whether an act or omission which might have caused but, in fact, did not cause injury or damage which the reasonable man might be held to have foreseen and had, therefore, a duty not to commit or to omit, is actionable negligence because injury or damage of a different kind not foreseeable and one, therefore, in respect of which there was no duty, has been suffered?
It is axiomatic that a failure to use the due care required by law, applying the standard of care of the reasonable man, does not give a cause of action unless injury or damage is caused. Is there a cause of action where there has been no fault on the part of the defendant, considered as the reasonable man, because damage which he could not foresee has been suffered? The risk of injury in this case, which on the evidence might be held to have been foreseeable, was a physical injury such as bruising of the chest”I shall use the term, “physical injury,” in this sense.
I distinguish between such an injury and the causation of the disease by repeated vibration of the tools which was on the evidence not foreseeable and therefore not a risk which the employers had a duty to guard against.
I have examined the transcript to see whether there is any evidence that the plaintiff suffered any physical injury at any time by the use of the tools. The evidence of the plaintiff is the material evidence, though I have considered also the evidence of the doctors who examined him. There is, in my opinion, no evidence either from the plaintiff or, indeed, from any other worker who said he used the tools in the same way as the plaintiff, that from such use he or they ever suffered any physical injury. I quote the plaintiff’s evidence dealing with his use of the driller:”
“Q. 122. Did that produce any movement in the handle which was against your chest?
A. Well, you could feel a tremble in it all right.”
Dealing with the “dolly bar,” the plaintiff was asked:”
“Q. 123. Was it comparable at all to the sensation you would get from the bar when you were operating with the gun?
A. They were a different feeling altogether.”
“Q. 125. Now, Mr. O’Mahony when did you first notice anything wrong with you?
A. I felt a soreness coming in my breast there, sir.”
“Q. 126. And whenabouts (sic) was that you eventually went to Dr. O’Flaherty, I think, the doctor attached to the works; how long before that was it?
A. My breast got sore and I got a slight little swelling of the nipple just alongside the breast.”
“A. 129. I notices (sic) that first about six to twelve months before I visited Dr. O’Flaherty.
A. 130. It was rather sore at all times.”
In answers 142 et seq. the plaintiff describes the continuing soreness.
In cross-examination:”
“Q. 305. Compared with the vibration you would get on the bar from the pneumatic hammer, the drilling machine would be comparatively quiet instead?
A. It would be, yes.”
“A. 306. I thought I would be able to go back to work in a couple of weeks. I didn’t think I was so seriously injured at all.”
Dealing with the use of the bar:”
“Q. 313. Were you ever black and blue from it?
A. I don’t remember. I just remember feeling sore from it.
Q. 314. You were never marked by it?
A. No, not exactly marked no.
Q. 315. Or discoloured by it?
A. Well, I didn’t take much notice. To tell you the truth, I just felt soreness and nothing else.”
In reply to question 316, Mr. O’Mahony stated that he never noticed his chest blue or discoloured.
“Q. 317. Never any marks?
A. I didn’t take any notice.
Q. 373. Have you ever heard of anybody doing riveting work who had an injury to the chest or a condition of the chest such as you have?
A. No, sir.
Q. 374. Did it occur to you that there was any danger in doing what you were doing?
A. No, sir, it never occurred to me.
Q. 375. Did you ever hear of anybody getting an injury of that kind from operating the drilling machine?
A. No, sir, it never occurred to me.”
The only possible conclusion from this evidence, in my opinion, is that the plaintiff did not suffer any physical injury and does not allege that he did. A number of medical witnesses were examined. They differed in opinion on several issues but none of them testified to having observed any physical injury”in the sense in which I am using the phrase ”or that the plaintiff told them that he had at any time suffered any such injury.
The question is, therefore, definitely posed and must be faced.
There has been no verdict and, therefore, the questions of law must be considered on a hypothetical basis, assuming that a jury has found the facts on all issues proper to be submitted, in the way most favourable to the plaintiff.
I set out these findings:”
1, The use of the tools as described by the plaintiff was known to the defendant company and was directed or permitted by them.
2, Such user was capable of causing physical injury to the plaintiff and therefore was in that respect an unsafe system.
3, No injury of this kind was suffered”it is not open to the jury to find otherwise.
4, The plaintiff is suffering from cancer of the breast.
5, This disease was caused by his work, done in the manner found in item 1.
6, This consequence could not have been foreseen by careful and prudent employers
In my opinion, these findings, if made, would not entitle the plaintiff to judgment.
The breach of duty which might be established did not cause any injury and an award of damages in respect of an injury which the defendants could not foresee and had no duty to guard against would lack the necessary support that the injury was caused by their negligence and breach of duty.
A similar situation existed in the case of Carey v. Cork Consumers’ Cas Co. (unreported; 5th March, 1958].
The plaintiff claimed damages against his employers because he contracted silicosis in the course of his work and by reason of the defendants’ failure to provide a safe system to protect him.
Mr. Justice Haugh at the trial withdrew the case from the jury, holding that while there was controversy as to whether the plaintiff had silicosis or some other ailment and as to whether if he had silicosis it was caused by his work, both of which questions might have been determined in the plaintiff’s favour, the evidence could not support a finding that it could reasonably have been foreseen by the employers that the plaintiff in his work would be exposed to the risk. This Court sustained this ruling and the judgment for the defendants stood.
In my opinion, therefore, the trial Judge should have withdrawn the case from the jury and entered judgment for the defendants.
The appeal, in my opinion, should therefore be allowed and judgment should be entered for the defendants.
Burke v. John Paul & Co. Ltd
[1967] IR 277 Supreme Court
Budd J.
In this case the Court has already determined that this appeal should be allowed, and has ordered a retrial. I now state my reasons for that decision.
The plaintiff in these proceedings is a builder’s labourer and the defendants are a limited company engaged in constructional work. The plaintiff brought proceedings against the defendants alleging that he had suffered personal injuries, loss and damage as a result of the negligence and breach of Supreme Court.
duty of the defendants, as his employers, in failing to provide him with a safe system of work; in particular, that they failed to provide him with adequate and suitable appliances for carrying out the work he was engaged to do. A plea of breach of statutory duty was not pursued at the trial of the action. The defendants denied any negligence on their part and pleaded that the damage was too remote.
The plaintiff, in the course of his duties as an employee of the defendants, was on the 16th and 17th June, 1960, engaged in the defendants’ premises at Windy Arbour, County Dublin, in cutting steel bars which were required for building purposes. For the purpose of carrying out this work the plaintiff was supplied with an instrument called a guillotine. This guillotine was an apparatus somewhat like the blades of a large scissors. The lower blade was bolted to a large block of wood with the blade facing upwards. The other blade of the instrument was attached to the block in such a fashion that the blade swivelled at one end. At the other end it had a long handle which enabled the blade to be lifted up and down. The sharp edge of the moveable blade was so placed that it faced the sharp edge of the stationary blade so that, when the moveable blade was lowered down, the sharp cutting edge of the moveable blade lay immediately adjacent to the sharp cutting edge of the stationary blade. The mode of operation of the apparatus was that the moveable blade was lifted upwards by means of the handle and the steel bar which was to be cut was then placed across and at right angles to the lower blade. The moveable blade was then brought downwards by means of lowering the handle until it came in contact with the steel bar and then the operator, by pressing on the handle, cut through the steel bar with the moveable blade.
The plaintiff in the course of his evidence stated that when he was working at the bars on the 16th June, 1960, he found that the blades were badly worn so that he had difficulty in cutting the steel bars. It appeared that the guillotine had been brought in from some other job for the purpose of having the blades renewed, but this had not been done. The result of the blades being worn was, according to the plaintiff, that it required more pressure on his part and the use of extra force on the handle to cut through the steel bars. He says that on that day he complained to the foreman about the blades being badly worn. Nothing, however, was done about them. On the second day he experienced the same difficulty in cutting the bars and at some time during the operation, when he was pressing down on the handle, he says that he felt something snap and he felt a pain at the bottom of his stomach at the right hand side. He later felt a little lump, on the top of thegroin, which was something like a marble. He says he complained about this to the foreman and said he had hurt himself by reason of the blades of the guillotine being worn. After this occurrence the plaintiff apparently continued to work with the defendants, and other employers, but later had an operation to remove the hernia. He complained that despite the operation he was incapacitated for work or, at any rate, heavy work.
Certain medical evidence was adduced at the hearing on behalf of the plaintiff with the object of proving that the hernia was caused by the man being required to work at the cutting of the steel bars with this allegedly blunt instrument. Dr. McCarthy’s evidence was to this effect. For a hernia to develop there is usually an area of congenital weakness on the surface of the abdomen. As a result of muscular exertion and the muscles being caught off-guard a piece of bowel may be pushed through that area, thus causing a hernia. He said that what would be noticed would be a pain in the groin and a swelling, and that what the plaintiff noticed would be consistent with a hernia. He also said, as I understand his evidence, that the exertion of pressure and the condition which the plaintiff noticed would be quite consistent with a hernia resulting from the pressure. Dr. Lucey also said that a hernia comes from pressure on the abdominal muscles. The muscle tears or the pressure and force on the muscles causes the area to break. Her view was that the muscles become weaker having undergone pressure for some time. The gist of her further evidence was that hernia is caused by a strain too great for the muscles, and that the more pressure the workman is obliged to apply the more likely he is to produce a hernia.
At the conclusion of the plaintiff’s case, counsel for the defendants asked the trial judge to non-suit the plaintiff on the ground that the defendants could not reasonably be expected to anticipate and foresee that the plaintiff might develop a hernia from having to exert such extra pressure as might be involved in the use of a blunt instrument. The learned trial judge acceded to this request. I quote two paragraphs from his decision on that application which I think fairly represent his views on the matter:”I do not think I can permit the jury to say that an employer should reasonably have anticipated because a labourer is asked to do labouring work, the kind that was done in this case, that he should anticipate that the labourer might suffer a hernia as a result of overstrain of the muscles of the abdomen . . . There is only one aspect of the evidence that can be taken in this regard and that is that the exertion that he was able to make. his body was not able to take. That is a thing that the employers could not possibly have anticipated.”
The plaintiff appealed to this Court from the order of the High Court on the following grounds:”(a) That the trial judge was wrong in law and in fact in holding that the jury could not reasonably find for the plaintiff. (b) That the trial judge’s said ruling was contrary to the evidence and completely unsupported thereby. (c) That the question of the defendants’ negligence was one for the jury and should have been left for the jury.” On the pleadings, the run of the case and the evidence given, the questions which the jury would have to answer in the affirmative to enable the plaintiff to succeed would be, first, were the defendants negligent in failing to provide the plaintiff with a proper appliance with which to do the work he was required to do, or in failing to maintain it in a proper condition; secondly, if the answer to the first question is in the affirmative, was the hernia caused by the negligent breach of duty; thirdly, if so, was the type of injury suffered one which an employer could and should reasonably have foreseen. The point to be decided is whether a reasonable jury could have answered these questions in the affirmative on the evidence adduced.
With regard to the first matter at issue, the contention of the defendants was that there was not sufficient evidence to show that the plaintiff was supplied with defective equipment. It was submitted that the furthest that the evidence went was that the blades were blunt and that a greater effort was therefore required to cut but that, nevertheless, the instrument was efficient to cut and had not in fact failed to cut. The duty of an employer to his servants is to take reasonable care for their safety in all the circumstances of the case; the contract between them, as Lord Herschell observed in Smith v. Baker & Sons (1), “involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk.” There is the evidence of the plaintiff that the blades of the guillotine were badly worn, that he had difficulty in cutting the steel bars, that it required more pressure and extra force to cut the steel bars (meaning presumably more pressure than if they were sharp), and that he complained to the foreman on the first day about the condition of the instrument. There was thus some evidence upon which a jury could find, if they saw fit, that the defendants had failed to supply the plaintiff with a proper appliance to cut the steel bars or, alternatively, had failed to maintain the appliance
in a proper condition so that the plaintiff was caused to exert a greater pressure on the instrument than would have been necessary if the blades were sharp and in proper condition, thus exposing him to the added risk of injury that the additional pressure might impose on himsuch risk being unnecessary as it was easily avoidable.
With regard to the second submission, that there was insufficient evidence to show that the alleged neglect of duty caused the hernia, it was, as I understood it, suggested that it was left in doubt as to how the injury was caused and that it might have been caused by some unusual sudden movement having nothing to do with the instrument. The plaintiff’s evidence was that he had the same difficulty in cutting the bars on the second day and that, while cutting the bars, he felt something snap and a pain at the bottom of the stomach on the right hand side and that he then felt on the top of the groin a little lump like a marble. That is just what one of the doctors said the plaintiff would notice if he got a hernia; and the gist of the medical evidence, which I need not repeat, is to the effect that the condition which he noticed would be quite consistent with the hernia resulting from the pressure exerted. On this evidence and in all the surrounding circumstances it would seem to me quite open to a reasonable d that the hernia resulted from the extra pressure which the plaintiff had to exert owing to the condition of the guillotine. There was thus ample evidence on which a reasonable jury could hold, if they thought it proper to do so, that the plaintiff’s injuries resulted from the defendants’ neglect of duty as his employers.
There then remains the question of foreseeability. The test of foreseeability as adopted in Overseas Tankship (U.K.) Ltd.v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound) (1)has been accepted in this Court (and indeed was accepted in the argument in this case) and I proceed on the basis that, in determining liability for the consequences of a tortious act of negligence, the test is whether the damage is of such a kind as a reasonable man should have foreseen. What is said by the defendants is that there was no evidence given in this case to show that the type of injuries sustained might reasonably have been anticipated by the defendants. The argument, as it was developed, was that the medical evidence showed that before a person can develop a hernia there must be some congenital weaknesssome predisposition to getting a hernia, and that, since this could not be discovered on any ordinary examination, it was impossible for the defendants to know of any predisposition of the plaintiff to develop a hernia, and that consequently they could not foresee that the use of extra exertion and pressure by the plaintiff in cutting the bars would result in a hernia developing. It was clearly implicit in the medical evidence that unwonted bodily exertion may cause straining or tearing of the muscles. It cannot, I think, be suggested that it is necessary to have the statement of a medical expert that an employer should know that if one of his employees is forced to use great exertion in the course of his work that may cause a straining, or even a tearing, of muscles, as that is a matter of common knowledge; but the point taken is that it could not be reasonably anticipated that a hernia would result without knowledge that the plaintiff had a predisposition to hernia. The answer to this, I think, is what is generally referred to as “the egg-shell skull rule” and I do not think that that rule has been impugned in any way by the Wagon Mound (1) decision.
A somewhat similar point arose in the case of Smith v.Leech Brain & Co. Ltd. (2). The case was a claim by the widow of a workman under the Fatal Accidents Acts, 1846 to 1908, and the Law Reform (Misc Provs.) Act, 1934. The workman suffered an injury by reason of a piece of molten metal striking him on the lower lip and causing a burn. The burn was the promoting cause of cancer from which the workman died. The cancer developed in tissues which already had a pre-malignant condition. It was alleged that the employers were negligent in not providing adequate protection for the workman, the risk of his being burned being one which was readily foreseeable. Lord Parker C.J. took the view that, but for the decision in the Wagon Mound (1) case, it seemed perfectly clear to him that, assuming negligence was proved and the burn caused in whole or in part the cancer and death, the widow would be entitled to recover.
With regard to the effect of the Wagon Mound (1) decision on the case he was dealing with, Lord Parker said at pp. 414 and 415 of the report: “or my part, I am quite satisfied that the Judicial Committee in the Wagon Mound (1) case did not have what I may call, loosely, the thin skull cases in mind. It has always been the law of this country that a tortfeasor takes his victim as he finds him. It is unnecessary to do more than refer to the short passage in the decision of Kennedy J. in Dulieu v. White & Sons (3), where he said: ‘If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.’
. To the same effect is a passage in the judgment of Scrutton L.J. in The Arpad (1). But quite apart from those two references, as is well known, the work of the courts for years and years has gone on on that basis. There is not a day that goes by where some trial judge does not adopt that principle, that the tortfeasor takes his victim as he finds him. If the Judicial Committee had any intention of making an inroad into that doctrine, I am quite satisfied that they would have said so. It is true that if the wording in the advice given by Lord Simonds in the Wagon Mound (2) case is applied strictly to such a case as this, it could be said that they were dealing with this point. But, as I have said, it is to my mind quite impossible to conceive that they were and, indeed, it has been pointed out that they disclose the distinction between such a case as this and the one they were considering when they comment on Smith v. London & South Western Railway Company (3). Lord Simonds in dealing with that case said: ‘Three things may be noted about this case: the first, that for the sweeping proposition laid clown no authority was cited; the second, that the point to which the court directed its mind was not unforeseeable damage of a different kind from that which was foreseen, but more extensive damage of the same kind.’ In other words, Lord Simonds is clearly there drawing a distinction between the question whether a man could reasonably anticipate a type of injury, and the question whether a man could reasonably anticipate the extent of injury of the type which could be foreseen. The Judicial Committee were, I think, disagreeing with the decision in the Polemis (4) case that a man is no longer liable for the type of damage which he could not reasonably anticipate. The Judicial Committee were not, I think, saying that a man is only liable for the extent of damage which he could anticipate, always assuming the type of injury could have been anticipated. I think that view is really supported by the way in which cases of this sort have been dealt with in Scotland. Scotland has never, so far as I know, adopted the principle laid down in Polemis (4), and yet I am quite satisfied that they have throughout proceeded on the basis that the tortfeasor takes the victim as he finds him. In those circumstances, it seems to me that this is plainly a case which comes within the old principle. The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and that he would die. The question is whether these employers could reasonably foresee the type of in jury he suffered, namely, the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim.”
With respect, I entirely adopt the reasoning of Lord Parker. Applying his reasoning to this case, the test is not whether the defendants could reasonably have foreseen that a straining or tearing of the muscles would cause a hernia in this particular man, but the question is rather whether they could have reasonably foreseen the type of injury that he did suffer, namely, the tearing or straining of the muscles which resulted in the hernia. A reasonable jury could, in my view, certainly find on all the facts and circumstances of the case that the defendants ought to have anticipated that a man in the plaintiff’s position, being given a blunt instrument with which to cut steel bars, might, by reason of the unusual exertion he would be called upon to exercise, strain or injure his muscles; it is immaterial that the defendants could not anticipate the full extent of the damage. It follows that a reasonable jury could properly have answered the third question that I have posed in the affirmative, as well as the other two. The case, therefore, should not have been withdrawn from the jury and in the circumstances a new trial becomes necessary.
Reeves v. Carthy
[1984] IR 348
O’Higgins C.J.
These proceedings have been brought by the plaintiff against the two defendants, who are general medical practitioners, because of a serious and incapacitating stroke which he suffered on the 9th June, 1977. The two defendants are members of a medical service known as “Doctor on Call” and each, on separate occasions on that date, answered a call made by the plaintiff’s wife to a designated doctor who was unable to attend. The plaintiff alleges that each defendant, in his attendance upon and treatment of him, was guilty of negligence and breach of duty and that, as a result, later that day the plaintiff suffered a stroke which has seriously and permanently incapacitated him. Theplaintiff’s claim was tried over several days in the High Court before Mr. Justice Gannon and a jury. At the conclusion of all the evidence in the case, the learned trial judge acceded to an application made on behalf of both defendants that the case should be withdrawn from the jury. He did so on the grounds, advanced on behalf of the defendants, that even if there was evidence of negligence or breach of duty against the defendants, or either of them, the occurrence of a stroke was not reasonably foreseeable and, accordingly, liability could not be established. This appeal has been brought by the plaintiff against that decision.
As indicated, the trial which is required to be reviewed by this appeal lasted a number of days. The evidence and submissions cover six books of transcript. It would not be possible or desirable in this judgment to refer to this large amount of evidence in any great detail. I propose, therefore, to set out what I conceive to be the case made by the plaintiff against each defendant, and to consider the salient features of the evidence upon which this case is claimed to rest. Having dealt with the question of negligence in relation to each defendant, I propose then to deal with the relevance of foreseeability in a case such as this and with the legal principles which, in my view, apply.
As against the first defendant (Dr. Carthy), the plaintiff makes two allegations of negligence and breach of duty. He alleges that, although he was obviously ill and in pain, Dr. Carthy proceeded to diagnose the plaintiff’s condition and to treat him without carrying out any physical or medical examination. As a result, the plaintiff complains, the real nature of his illness was not discovered or diagnosed nor was he removed to hospital until it was too late. In the second place, the plaintiff alleges that Dr. Carthy’s treatment was contrary to accepted practice in that, without such examination, he injected the plaintiff with two doses of a drug containing morphine, which masked and concealed the plaintiff’s symptoms and the critical nature of his illness. The plaintiff’s case is that, were it not for these acts of negligence on the part of Dr. Carthy, the serious nature of his illness would have been discovered earlier and, as a consequence, he would not have suffered the stroke which he suffered later that day. The evidence in support of this case was that given by the plaintiff’s wife, Mrs. Reeves, and also the expert opinions of medical witnesses upon the nature of the plaintiff’s illness and upon what was required of Dr. Carthy in the circumstances. Mrs. Reeves said that her husband had had a long history of gastric and stomach upsets which had been treated by the family’s usual medical attendant, Dr. McNiff, and later by a Dr. Fenton. The plaintiff had been referred earlier that year to Dr. Steevens’s Hospital for X-ray examination but with a negative result. Later, following another attack, he had been sent by Dr. Fenton to St. James’s Hospital for tests. Again, apart from a report that the plaintiff suffered constipation and bowel irregularity, the result was unenlightening.
At some time after 8 o’clock on the evening of the 8th June, 1977, while being driven home by his wife, the plaintiff got a sudden and severe gastric, or stomach, upset. He was doubled up in pain and he vomited. His wife got him home and to bed. His pain and distress continued in between periods of dozing. Having tried to summon other medical assistance, Mrs. Reeves eventually was put in contact with “Doctor on Call.” As a result, Dr. Carthy arrived at 3 a.m. on the 9th June. She apologised for calling him at such a late hour. He said that it was quite all right as he had been at a party. She told him of the events of the previous evening and how her husband had been up to then. She also gave him full details of her husband’s previous medical history.
In the bedroom the plaintiff said that he was constipated and he asked for something to kill the pain. Dr. Carthy said____ “You are a great man, you seem to know what is wrong with you, turn over and I will give you an injection.” Dr. Carthy then gave the plaintiff the first injection. When, some time later, the plaintiff said the pain was still there, Dr. Carthy gave him a second injection. Mrs. Reeves was positive that Dr. Carthy did not carry out a physical examination of the plaintiff. She said that he left, leaving two tablets, and telling her____ “I don’t think you’ll need to call us again.” Under cross-examination she could not recall Dr. Carthy taking her husband’s blood pressure or temperature or pulse, but she conceded that these might have been taken without her noticing. She was in no doubt about Dr. Carthy’s failure to carry out a medical examination of her husband and, despite suggestions to the contrary, she repeated many times that he had not done so. She also stated positively that she had told Dr. Carthy of her husband’s vomiting during the previous evening.
While it is not necessary to examine or consider Dr. Carthy’s evidence in so far as it contradicts that of Mrs. Reeves, it is only right to say that he was adamant that he must have examined the plaintiff. Dr. Carthy based this not on a recollection of his having done so but on his clinical notes recorded immediately after his visit. These notes recorded as his clinical findings “epigastric pain . . . no vomiting or diarrhoea.” He said that he could not have recorded epigastric pain without putting his hand on, and examining, the plaintiff’s stomach. He did not deny that Mrs. Reeves could have told him of the vomiting, but he was not asked to explain his entry in this respect. Dr. Carthy did not regard the plaintiff’s condition as serious and diagnosed a peptic ulcer. He agreed that he gave an injection of cyclomorph (a drug containing morphine).
Before dealing with the visit of the second defendant (Dr. O’Kelly), it is necessary now, in relation to the case against Dr. Carthy, to deal with the plaintiff’s admission to hospital and his condition at that time. In dealing with the case against Dr. O’Kelly I must, of course, return to what happened after Dr. Carthy left and before the admission to hospital.
At some time after 12 noon the plaintiff struggled from his bed, shouted for his wife and collapsed at the bannisters outside his bedroom; he was then unable to speak. Mrs. Reeves, in great distress, summoned an ambulance and she travelled with the plaintiff in the ambulance to St. James’s Hospital. On arrival he was given immediate emergency medical aid as his life was obviously in danger. It was recognised that he had suffered a right-sided hemiplegia or stroke and an acute abdominal catastrophe, which meant that there had been an extensive perforation of fluid into his abdomen. As this perforation required surgery, he was prepared for such and was operated on that night. As a result of the operation, it was discovered that the plaintiff suffered from a condition known as Crohn’s disease (which is an inflammation of the bowel) and that this had led to the perforation and abdominal catastrophe. The evidence established that Crohn’s disease was a chronic condition which was extremely difficult, if not impossible, to diagnose without operation; it might cause only mild trouble and then disappear or it could suddenly become acute and cause a perforation, as it did in this case.
Apart from indicating the nature and cause of the plaintiff’s condition on admission to hospital, the medical evidence called on his behalf established other matters which appear to be relevant in considering the case against Dr. Carthy. This evidence is also relevant in considering the case against Dr. O’Kelly, with which I will deal later. This evidence was to the following effect.
A perforation of the abdomen may commence as a small leak through any part of the abdominal wall. As it develops, it affects the circulation of the blood as fluid accumulates in the abdominal cavity. This is called hypotension or a condition of low blood pressure and is extremely dangerous. If the perforation and resulting hypotension condition continue to exist without relief, a condition of shock may set in. When that happens, the arms and legs get very cold because the body shuts off their supply of blood in order to maintain a blood supply to the vital organs the brain, the kidneys and the heart. If this condition continues without relief, a stroke may result because of the death of a portion of the brain. A stroke does not usually occur to a person as young as the plaintiff. However, having Crohn’s disease, he had a mild predisposition to a stroke. Apart from Crohn’s disease, and even in the case of a young person, a prolonged period of hypotension can lead to a stroke. The plaintiff’s stroke could have been averted had he been admitted to hospital earlier than 11.30 a.m., and the acute abdominal catastrophe could have been prevented had he been admitted around 4 a.m. on the same day.
There was also other medical evidence to the effect that any doctor should regard a night call as serious and that, in the circumstances of this case, a failure to carry out a physical examination of the abdomen was wrong medical practice. There was also evidence to the effect that the administration of morphine, without a satisfactory examination and diagnosis, was dangerous. In particular, in relation to a diagnosis of peptic ulcer, which is not a complication, to give such a drug was wrong. The proper treatment and the treatmentindicated in such circumstances is the administration of an anti-acid. A dangerous result of the administration of morphine was the masking of symptoms which, in the case of abdominal pain, could lead to delay in diagnosing an acute abdominal catastrophe and thus endanger the patient’s life.
I turn now to the plaintiff’s case against Dr. O’Kelly. The plaintiff alleges that Dr. O’Kelly, having been informed of the recent and earlier medical history, and having conducted a proper medical examination, failed to communicate to the plaintiff or his wife the serious nature of the plaintiff’s illness. In particular, it is alleged that Dr. O’Kelly failed to apply any, or proper, pressure to have the plaintiff removed to hospital. It is further alleged that, despite symptoms of which he was made aware and his own findings on examination, Dr. O’Kelly injected the plaintiff with a drug which was contra indicated and which was highly dangerous in the circumstances.
In support of these allegations the plaintiff relied on the evidence of his wife, on a medical record of Dr. O’Kelly’s examination and on certain medical evidence to which I will refer. Mrs. Reeves said that the plaintiff slept for some time after Dr. Carthy had left. The plaintiff then awoke and vomited blood. Mrs. Reeves then started telephoning for a doctor. She had great difficulty in making contact. Eventually, shortly before 9 o’clock on the morning of the 9th June, Dr. O’Kelly arrived. Mrs. Reeves told him of Dr. Carthy’s visit and of what he had done. She also gave Dr. O’Kelly a full account of her husband’s stomach attack the previous evening and of his earlier medical history. Having done so, she left Dr. O’Kelly with her husband in the bedroom. When Mrs. Reeves returned, she learned that Dr. O’Kelly had given her husband an injection. Dr. O’Kelly then said to her__ “I can find nothing wrong with him.” Mrs. Reeves expressed amazement and said that she would prefer to have her husband removed to hospital. Dr. O’Kelly said__ “Right. I will try to get him in somewhere.” At that stage the plaintiff was quite confused. Although advised by Dr. O’Kelly, the plaintiff refused to go to hospital and said that all he wanted was to sleep. Dr. O’Kelly said that he could do nothing about it, if the plaintiff refused. He wrote out a note of his examination, which he gave to Mrs. Reeves, and said__ “Leave him until lunchtime. If not better, then ring 999 and they will take him somewhere.”
Dr. O’Kelly’s medical notes indicated that the plaintiff’s complaint was “constant abdominal pain and vomiting (haematemesis) x 12 hours.” This indicates vomiting of blood. The record also shows that the clinical findings were “Abdomen general tenderness and guarding”, that the plaintiff suffered from tachycardia, that his temperature was normal but that his pulse rate was 160. The diagnosis at the end of the record was merely “abdominal pain plus vomiting? cause.” It also indicated that an injection of largactil had been administered.
Professor Neill, who was a consultant physician at St. James’s Hospital and who had examined and treated the plaintiff on his admission to hospital, was asked his view of the findings shown on this medical record of Dr. O’Kelly’s examination. Professor Neill said positively that those findings indicated a very sick man who could only be looked after in hospital. He said that the findings disclosed a diffuse irritation of the lining of the abdominal wall with a very fast pulse rate and indicated a markedly reduced blood pressure. With those clinical findings, he said that the administration of the drug largactil was not only wrong but was highly dangerous. He said that this was so because of its effect on the blood circulation. He said that, in the case of shock arising from the low blood pressure, the effect of largactil would be to prevent the body cutting off the blood supply to the arms and legs in order to protect the brain, the kidneys and the heart. Professor Neill indicated that this could make a stroke more likely. He said that, when he examined the plaintiff, although the plaintiff then had no blood pressure, his arms and legs, which should have been cold, were still warm. Professor Neill added that all doctors should know that, with an acutely ill patient, drugs should be used with care and that, in the case of largactil, the drug information sheet (contained in the box of ampoules) warns about giving it to a patient suffering from tachycardia.
Professor Neill’s evidence was supported by that of Professor James McCormack, who said that the clinical findings disclosed on Dr. O’Kelly’s notes indicated that an acute abdominal emergency was, if not certain, so probable that hospital admission was essential. He regarded Dr. O’Kelly’s efforts to get his patient into hospital as inadequate and not in accordance with what was required of him as a doctor in general practice.
Finally, one other portion of the evidence should be mentioned; it is relevant to the case against both Dr. Carthy and Dr. O’Kelly. Professor Neill was asked, having regard to his knowledge of the plaintiff’s condition on admission to hospital, to give his opinion of the progress of the plaintiff from the time of his attack on the evening of the 8th June down to his admission to hospital. He said that, in his opinion, the plaintiff had Crohn’s disease probably for some months, or even years. This affected the lower part of his small intestine. At some time on the 8th or 9th June, a perforation occurred and the contents of the small intestine leaked into the abdominal cavity. The degree of shock and generalised illness which Professor Neill observed, when the plaintiff was admitted to hospital, indicated that this perforation took place at least 12 hours before admission. He thought it probable, in the circumstances, that it had occurred when the plaintiff’s bout of pain and vomiting commenced at 8 p.m. on the 8th June. When it occurred, a leaking of fluid into the abdomen commenced. He was of the view that the plaintiff was suffering from the effects of this perforation, which had developed into peritonitis, at 3 a.m. when examined by Dr. Carthy. By the time he was seen by Dr. O’Kelly, the plaintiff’s blood pressure would have been very low and he would then have been developing shock. The clinical finding that he had abdominal guarding indicated an inflammation of the peritoneum and indicated that every hour’s delay was a threat to the plaintiff’s life. However, instead of being rushed to hospital, he was then given largactil which dampened down the protective circulatory reflexes. The result was that the blood supply to the brain was reduced more than it should have been. By reason of this, taken in association with the fact that the plaintiff suffered from Crohn’s disease, he developed a stroke by reason of the fact that a small portion of the brain died.
That being the nature of the evidence adduced by the plaintiff in support of his claim against each defendant, I think it proper to consider at this stage what a jury, accepting such evidence, could fairly conclude. It is unnecessary to emphasise that much of this evidence was controverted and denied by the defendants but, as we are considering the propriety of the withdrawal of the case from the jury, it is, in the main, only necessary to consider what the plaintiff’s evidence, if accepted, could have established. If such evidence could establish a case of negligence against both defendants or either one of them, then the issue whether it did establish such a case should have been decided by a jury. In so deciding, the jury would consider all the evidence before them, both that adduced on behalf of the plaintiff and that adduced on behalf of the defendants.
On the evidence which I have outlined, it seems to me that a jury could arrive at the following conclusions__
1. On the 8th June, 1977, the plaintiff, who was suffering from an undiagnosed condition of Crohn’s disease, perforated from the small intestine into the abdominal cavity.
2. Over the ensuing hours this perforation continued to progress and, at 3 a.m. on the 9th June when seen by Dr. Carthy, the plaintiff was suffering from peritonitis.
3. This fact would have been apparent to any doctor who examined the plaintiff’s abdomen.
4. Dr. Carthy failed to carry out such an examination and, as a result, he failed to recognise the plaintiff as an acutely ill person who was in need of immediate hospitalisation.
5. The administration of the drug cyclomorph was, in the circumstances, contrary to accepted medical practice and dangerous because it could mask the plaintiff’s symptoms.
6. Peritonitis affects and lowers the blood supply and, as it persists, weakens the circulatory system. A period of circulatory weakness or hypotension lasting a number of hours involves the risk of a stroke occurring. The existence of such a risk should be known to any doctor attending a patient who exhibits symptoms of circulatory disorder.
7. When Dr. O’Kelly examined the plaintiff, the plaintiff was suffering from peritonitis with a fast, weak pulse or tachycardia; he was exhibiting signs of circulatory weakness and was developing shock. In these circumstances Dr. O’Kelly should have recognised his patient as being acutely ill and in danger of death and should have insisted on his immediate removal to hospital.
8. The administration by Dr. O’Kelly of the drug largactil was, in the circumstances, contrary to proper medical practice and was dangerous because it added to the process of circulatory collapse.
9. The plaintiff’s stroke was caused by circulatory weakness or hypotension lasting over a prolonged period.
On the basis that a jury could reach those conclusions, the question now to be considered is whether a case in negligence has been made out against the defendants, or either of them. To succeed in an action based on negligence it is necessary to establish a breach of that duty to take care which the law requires in the circumstances. It is also necessary to show that such breach of duty has resulted in damage. Carelessness without damage is not actionable; nor is a person who is in breach of duty liable for consequences which he could not reasonably have foreseen.
This is a claim against two doctors. Each of them owed a duty to take care when attending their patient, the plaintiff. This involved bringing to their attendance upon him the ordinary skill, care and diligence which could reasonably be expected of a general practitioner on a night call when visiting a sick patient. The skill of the consultant or the specialist could not be expected, but less than the minimum care and attention of the ordinary practitioner could be faulted. This entails, in my view, that each doctor was expected to apply his medical knowledge to his patient’s history and symptoms, to conduct a careful examination and seek to determine the nature of the illness, and to decide upon treatment. Neither could be blamed for an incorrect diagnosis arrived at after a careful examination, nor for the mere fact that the wrong treatment was given, or that in doing what was done there was a deviation from normal practice. If what a doctor did is called in question, to hold him negligent it must be established that the course he adopted was one which no doctor in the given circumstances would have adopted had he been acting with ordinary care. The matter was put in the following way by Kingsmill Moore J. in Daniels v.Heskin 13 at p. 86 of the report_
“A doctor owes certain well recognised duties to his patient. He must possess such knowledge and skill as conforms to the recognised contemporary standards of his profession and, if he is a specialist, such further and particularised skill and knowledge as he holds himself out to possess. He must use such skill and knowledge to form an honest and considered judgment as to what course, what action, what treatment, is in the best interests of his patient. He must display proper care and attention in treating, or in arranging suitable treatment for, his patient. Any attempt to substitute a rule of law, or even a rule of thumb practice, for the individual judgment of a
qualified doctor, doing what he considers best for the particular patient, would be disastrous. There may be cases where the judgment of the physician is proved by subsequent events to have been wrong, but if it is honest and considered and if, in the circumstances known to him at the time, it can fairly be justified, he is not guilty of negligence. There may indeed be cases where the nature of the judgment formed or the advice given is such as to afford positive evidence that the physician has fallen short of the required standard of knowledge and skill, or that his judgment could not have been honest and considered, but it lies on the plaintiff to adduce evidence from which such a failure of duty can reasonably be inferred.”
In that case it was made clear that, when a doctor follows a general and approved practice in the situation with which he is faced, even if what he did turns out to have been wrong, he cannot be held to be negligent. However, it is important to remember that the existence of a general and approved practice may be one of the issues of fact to be decided by the judge or jury trying the case. As Mr. Justice Walsh said in O’Donovan v. Cork County Council 12 at pp. 193-4 of the report__
“Furthermore, if there be a dispute of fact as to whether or not a particular practice is a general and approved practice, it is a matter for the jury to determine whether or not the impugned treatment is general and approved practice. In such circumstances a jury would be told that if they find that there is such a general and approved practice they must acquit the practitioner where there is not the qualification which I have referred to above. If some witnesses say that a particular practice is a general and approved one and other medical witnesses deny that, then it is an issue of fact to be determined as any other issue of fact. This particular issue cannot be withdrawn from a jury merely because the practice finds support among some medical witnesses if there be others who deny the fact that it is general and approved practice.”
Applying these general considerations to this case and having regard to the conclusions which, on the evidence, were open to the jury, I am of the opinion that there was evidence that Dr. Carthy was negligent in failing to carry out an examination of the plaintiff’s abdomen. He was presented with a patient who was complaining of severe and prolonged stomach pains and who had vomited at an earlier stage the previous evening. His duty was to examine that patient and not merely to act on what the patient or the patient’s wife told him. I am further of the opinion that, had Dr. Carthy carried out such an examination, he would have become aware of the serious nature of the plaintiff’s illness and,
being so aware, could have taken steps for his immediate removal to hospital. The result of Dr. Carthy’s failure properly to examine his patient was that the plaintiff, while suffering from peritonitis, was left without the appropriate hospital treatment as his circulatory system continued to weaken and the consequent danger of a stroke became more real and apparent. I cannot see, and do not accept, that the fact that six hours later the plaintiff was examined by another doctor excuses Dr. Carthy’s apparent negligence in any way. Had Dr. Carthy not been in breach of his duty to the plaintiff, the probability is that the plaintiff would not have been exposed to the necessity of a second medical visit nor to the continuing exposure to the risk of a weakening circulatory system.
As to the injection of morphine, I am of the opinion that, in giving that injection, Dr. Carthy was also careless and did something which was medically wrong and potentially dangerous. I cannot find any evidence, however, that in fact any harm or damage resulted. The inherent danger was that this drug would mask the plaintiff’s symptoms at a later medical examination. It seems to me, however, that this did not happen, and that the plaintiff’s symptoms were sufficiently clear and definite at Dr. O’Kelly’s examination to warrant a correct diagnosis and appropriate action.
As to Dr. O’Kelly, I am also of the view that there was evidence that he was in breach of his duty to the plaintiff. He also was presented with a patient who had constant abdominal pains and who had vomited blood. He observed general tenderness and guarding of the abdomen and a condition of tachycardia with a fast and weak pulse rate of 160. On the medical evidence, this clearly indicated the danger of peritonitis and a serious circulatory upset. It seems to me that, in failing to recognise or diagnose that condition, Dr. O’Kelly failed to display the skill or care expected of him as a general practitioner in the circumstances. In addition, even if his failure to diagnose the true condition were excusable, the fact of his clinical findings should have indicated to him the urgent need for hospitalisation. As I have already indicated, a jury could fairly conclude on the evidence that, in relation to his advice with regard to immediate hospitalisation, Dr. O’Kelly failed to convey the sense of urgency which was warranted in the circumstances. Finally, I am of the view that the evidence would justify a finding that, in administering the drug largactil, Dr. O’Kelly was also at fault and negligent. It does not appear to me to be of relevance on this appeal that there were other opinions given on whether that drug ought to have been administered, or on its safety in the circumstances. In my view, it is sufficient to say on this appeal that the evidence adduced on behalf of the plaintiff to prove that its administration, in the circumstances, was contrary to proper and accepted practice, even when contradicted, raised an issue of fact proper to be decided by a jury.
Being satisfied, as I am, that there was evidence of negligence to go to the jury against both defendants, I have now to consider the ground upon which this case was withdrawn from the jury by the learned trial judge. He formed the
view that even if some want of care or negligence could be established on the part of both defendants, or either one of them, the occurrence of a stroke as a consequence could not reasonably have been foreseen. In making the applications for a direction, on behalf of the respective defendants, both Mr. Liston and Mr. Sutton relied on the fact that the plaintiff had Crohn’s disease. This meant, they submitted, that he had a disposition to a stroke. While the defendants might have foreseen an abdominal perforation, they could not have foreseen the occurrence of a stroke as such was not a consequence of the perforation but of a perforation with Crohn’s disease. The learned trial judge seems to have accepted and adopted that submission. In my view, he was incorrect in doing so.
While undoubtedly Crohn’s disease was a factor, there was a considerable amount of evidence to the effect that, apart altogether from Crohn’s disease, the subjecting of a patient, even of the plaintiff’s age, to a prolonged period of hypotension carried with it the risk of a stroke. There was further evidence that the existence of such a risk would have been known to any doctor. In addition, there was clear evidence that untreated peritonitis leads to circulatory weakness and hypotension. From this it seems to me to follow that any doctor who fails, culpably, to diagnose a perforation must be taken as foreseeing that his failure to do so could lead to hypotension which, if prolonged, could in turn lead to a stroke. In my opinion, the fact that the patient had an additional predisposing medical condition is irrelevant. I appreciate that the administration of largactil by Dr. O’Kelly was, so far as Dr. Carthy is concerned, a complicating factor. However, in my view, a jury could well take the view on the evidence that the administration of that drug was merely an accelerating factor in the circulatory collapse which was inevitable as long as the plaintiff’s condition was not properly diagnosed and treated in hospital, and that for this both defendants could be held responsible.
On the evidence, I have come to the conclusion that, because the result of the defendants’ negligence was an untreated abdominal perforation, the inherent danger therein of a circulatory collapse and prolonged hypotension made the risk of a stroke foreseeable.
Even if the view which I have taken of the effect of the medical evidence be incorrect and if the most that can be said is that foreseeability was limited to the perforation which the plaintiff suffered, I do not see that this can assist the defendants. The stroke was directly caused by the fact that the plaintiff suffered an abdominal perforation which was not diagnosed or treated in time. That another person would not have suffered a stroke or that a doctor, being told of abdominal pains, would not think of the danger of a stroke, or that the plaintiff had Crohn’s disease, are irrelevant considerations to my mind. The failure to diagnose or treat a perforated abdominal cavity was capable of causing great harm to the person concerned, leading eventually to an abdominal catastrophe. The fact that the harm done to the plaintiff, who had Crohn’s
Griffin J.
..The test of foreseeability as adopted in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound) 4 has been accepted in this Court (and indeed was accepted in the argument in this case) and I proceed on the basis that, in determining liability for the consequences of a tortious act of negligence, the test is whether the damage is of such a kind as a reasonable man should have foreseen.”
He went on to say (at p. 285) in relation to the facts of that case__
“. . . the test is not whether the defendants could reasonably have foreseen that a straining or tearing of the muscles would cause a hernia in this particular man, but the question is rather whether they could have reasonably foreseen the type of injury that he did suffer, namely, the tearing or straining of the muscles which resulted in the hernia. A reasonable jury could, in my view, certainly find on all the facts and circumstances of the case that the defendants ought to have anticipated that a man in the plaintiff’s position, being given a blunt instrument with which to cut steel bars, might, by reason of the unusual exertion he would be called upon to exercise, strain or injure his muscles; it is immaterial that the defendants could not anticipate the full extent of the damage.”
It seems to me that that reasoning applies in this case and that the defendants can properly be held liable for what this neglect, if such be established, brought about.
I wish to add that, in my review of the evidence in this case, I have been compelled to act on the evidence adduced by the plaintiff and to regard it as if it had been accepted by a jury. I must emphasise, however, that much of that evidence has been, and will be, controverted. I do not wish to indicate that I have formed any particular view that the defendants or either of them were at fault. Accordingly, for the reasons outlined in this judgment, I would allow this appeal and direct a new trial.
Wall v. Morrissey
[1969] IR 10
Walsh J Supreme Court
On the 16th March, 1965, the defendant employed a contractor named Kenneally to excavate a trench across the width of the public highway for the purpose of bringing a water-supply pipe across the highway to a cattle trough on the defendant’s lands. The roadway was 13 feet 6 inches in width, and the trench was cut to a depth of three to four feet and was itself 18 inches wide. In the previous January the defendant had obtained permission from the local authority to break up the roadway for the purpose in question and he had paid a sum of £3 6s. 0d., being the estimated cost of reinstating the surface which would fall on the local authority. One of the provisions of his agreement with the local authority stipulated that the trench was to be filled, in layers of a depth of six inches, with suitable materials and rammed with a heavy rammer and brought up to within nine inches of the surface of the road. Stone was then to be laid for a depth of six inches and well rammed and wedged, and the level then had to be brought up to road level with a layer of two-inch broken stone covered with chippings or suitable gravel and rammed flush with the adjoining road surface; and the defendant was obliged to maintain the surface flush with the adjoining road surface for a period of two months.
Kenneally used a mechanical digger to excavate the trench and, when the water pipe had been installed, he refilled the trench with the material which had been excavated and (as he said in his evidence) he “packed it down with wheels until it got hard.”He added that he had done similar work for the County Council and that what he did on this occasion was done in what he described as “the usual way.” The whole job took only about one hour. When the job was completed the weather was still dry and the contractor went away. It was seen by a County Council roadworks-ganger who expressed himself as satisfied with it. After the refilling of the trench there was still some of the excavated material left over. There was heavy rain during the night, and next morning it was noticed that the trench filling had dropped three or four inches. It was sufficiently deep and soft to trap a motor vehicle’s wheels on that morning. Then, and again later in the day, the defendant and his son added some of the filling, which had not been used on the previous day, to bring the level of the trench up to road surface again. After the first repair on the 17th March it was seen by the County Council ganger who was again satisfied with its condition. On the 23rd March the County Council engineer saw it and considered that it was not in good condition and directed the County Council employees to deal with it. They excavated about three or four inches of the material and replaced it by gravel.
The accident, of which the plaintiff complains, occurred on the 17th March. At about 10.15 that night, when riding his bicycle along the roadway, his front wheel stuck in the cutting when he was riding across it, with the result that he fell off and sustained personal injuries. Earlier in the evening he had, according to himself, noticed the trench across the road and had dismounted from his bicycle and walked across it. He described it then as being “a foot deep in parts.” However, he had forgotten about it on his return journey with the result, he claimed, that he cycled into it and was thrown off his bicycle because of the defective condition of the refilled trench. According to the defendant he (the defendant) had already levelled up the sagging surface of the trench on two occasions that day: once in the morning at about 9 o’clock and once in the afternoon at about 5 o’clock. He did not see the trench again that day. He said that the amount of filling required in the afternoon was only an inch or two and that when he left it he thought it was all right.
Whatever its condition at the point of time when he left it, it certainly, according to the evidence, deteriorated subsequently because on the 23rd March, as I have stated already, the County Council regarded it as in a bad condition and set to work on it themselves. The only evidence as to its precise condition some hours after the defendant had left it on the 17th March is that given by the plaintiff, where he described what he saw when he dismounted at the trench. Whether that be accurate or not it is not now necessary to consider, and one may proceed on the assumption that the trench had sufficiently subsided to cause the plaintiff to be thrown from his bicycle when he cycled over it later that night.
The plaintiff laid his action in nuisance and also in negligence. The case was tried before Mr. Justice McLoughlin and a jury in Cork on the 20th and 21st July, 1967. At the close of the evidence, the learned trial judge refused the plaintiff’s application to have both the question of nuisance and the question of negligence left to the jury, and the trial judge left only the question of whether the defendant had been negligent. The learned trial judge’s view was that all the issues between the parties were covered by the question of negligence and that there was nothing which could arise on the question of nuisance which would not be raised on the question of negligence. In the result the jury found that the defendant had not been negligent. Against this judgment the plaintiff has appealed on the ground that the learned trial judge misdirected himself in law in refusing the plaintiff’s request to have the issue of nuisance submitted to the jury.
Counsel for the plaintiff, in the course of this appeal, indicated that he had no quarrel with the jury’s finding on the question of negligence but he submitted, as he submitted to the learned trial judge, that the test of foreseeability was of no relevance in the question of nuisance and that it was sufficient for the plaintiff to establish that the defendant had committed a public nuisance and that the injury which the plaintiff suffered had flowed directly from that nuisance.
For the purpose of this appeal I am assuming that the condition of the road which brought about the plaintiff’s accident did amount to a public nuisance.
I do not think that the agreement with the County Council, which was in effect an indemnity to the County Council on the question of the resurfacing of the portion of the highway involved, affects the matter at all. The County Council cannot give a licence to the defendant to commit a public nuisance, nor can it in any way absolve him from the consequences of one. Furthermore, I do not consider that the defendant’s position is in any way altered on the question of nuisance by the fact that he employed an independent contractor. A person who makes an excavation on the highway has imposed upon him a duty of care which cannot be discharged by the employment of an independent contractor, nor can such person delegate to a contractor the work of taking the precautions necessary to prevent the mischievous consequences of the excavation on the highway. The person who procures the excavation is primarily liable for the actionable consequences which may flow therefrom; he is not simply liable vicariously for the acts of the independent contractor.
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.
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: see the examples given by Lord Reid in Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. [The Wagon Mound (No. 2) 15] However, I am also content to adopt the reasoning of Lord Reid in the same case 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.
From such information as the Court has been able to learn from the course of the trial in the High Court, it would appear that the point taken by counsel for the plaintiff in requesting the trial judge to leave the question of nuisance to the jury was the point that foreseeability was not an essential ingredient of that cause of action. That was the course of the trial and in the circumstances, therefore, I am satisfied that it is not necessary or relevant to consider any other matters which might have arisen when the only point which did arise was, in my view, unfounded in law.
During the course of the argument counsel for the plaintiff referred the Court to the decision of Mr. Justice James Murnaghan in Lynch v. Dawson. 16 That case was concerned with the nuisance created by branches of trees overhanging the highway and interfering with the passing traffic, as a result of which a passing lorry was struck and damaged. At first sight that case might appear to be a decision in favour of the proposition that all it is necessary to establish, in the case of an action brought for damages for a public nuisance, is the creation of the nuisance and that injury has flowed to the plaintiff directly from the nuisance. A close examination of the case, however, reveals that the contending points of view of the parties were, on the one hand, the proposition that the owner of the adjoining lands who owned the trees was liable on proof of the fact that a tree overgrows the public road and that this fact alone gave rise to a cause of action if the tree was an obstruction and caused damage. The opposing contention was that liability did not attach to the owner until it was proved that he either knew or ought to have known that the trees were likely to cause an obstruction. The learned judge arrived at the view that the mere fact that a tree by its natural growth caused an obstruction to persons lawfully using the highway gave a right of action to the person injured by the obstruction. It was never claimed in that case that the owner did not know that his trees grew over the roadway but simply that he did not know that they were causing an obstruction. That is tantamount to saying that a reasonable person would not have foreseen that any passing traffic would be likely to be struck by them. The trees were a nuisance only because it was foreseeable that passing traffic might be struck by them. In other words, the necessity of foreseeability had already been assumed by the learned judge. The case is not, therefore, in any way an authority for the proposition that foreseeability is not necessary.
The view that foreseeability is an essential ingredient is supported by the decision of Lavery J. in Gillen v. Fair. 17 That was an action, laid both in nuisance and in negligence, resulting from the branch of a tree growing beside the public highway falling on a passing motor car and killing the driver. The learned judge dismissed the action in negligence on the grounds that the damage was not foreseeable (on the particular facts of that case) and he appears also to have taken the same view on the question of the claim in nuisance which he also dismissed. Finally I turn to the decision of this Court in Cunningham v. McGrath Brothers. 18While in that case the question whether foreseeability was an essential ingredient or not in actionable public nuisance was not in issue, the decision clearly accepted and proceeded on the basis that it was an essential ingredient. The contest was whether, on the evidence, it could be held that the mischief was foreseeable and the answer was in the affirmative.
As this appeal has turned upon the question of whether the trial judge was correct or not in applying the test of foreseeability, I would dismiss the appeal for the reasons I have already given. It is unnecessary to speculate on what other points might have been made at the trial because the action could not succeed in either nuisance or negligence without establishing foreseeability, and for the purposes of this appeal it must be assumed that the jury found that the damage was not foreseeable.
BUDD J. :
I have read the judgment which has been delivered by Mr. Justice Walsh and I agree with it.
Turner v Iarnrod Eireann and Tralee UDC
Flood J. 14th February 1996 High Court
Judgment of Mr. Justice Feargus M. Flood delivered this 14th day of February, 1996.
TThe claim in this matter is for damages for personal injuries sustained by the Plaintiff on June 16th, 1989 through the negligence and breach of duty of the Defendants, or one or other of them, on the First named Defendants’ property on the railway track at or near Tralee in the County of Kerry. THE FACTS The Plaintiff is a 50 year old married woman who resides at 24 Balinorig Close, Tralee. She has a family of three children. In June of 1989 the youngest of the said children, a girl named Gretta, was aged six and a half. Balinorig Close is a housing estate constructed in the late 1970’s by the National Housing Agency on behalf of the – 2 – U2393 Second named Defendants who sold the said houses when constructed to, inter alia, the Plaintiff and her husband. The said houses abut onto the boundary fence of the railway track from Tralee to Mallow. Balinorig Close is in fact a cUl-de-sac. The roadway culminates in a “hammer-head”, th~ northern boundary of which abuts onto to the First named Defendants’ said boundary fence. To the west of the said hammer-head is a field of some ten acres owned by the Second named Defendants and again the northern boundary of the said field abuts onto the First named Defendants’ said fence. The roadway at the said “hammer-head” is boarded by a concrete block wall. Some time after the erection of the said block wall, the residents caused a stile or opening to be made in the said block wall whereby a pedestrian could pass through the said wall into the said field. On the “hammer-head” side of the said block wall and on the northern boundary of the hammer-head, the Urban District Council had erected a chain link fence of approximately four foot in height. On the field side of the said block wall at or adjacent to the junction of the said block wall with the said northern boundary of the said field, there was a post and wire fence, the property of the First named Defendants. It surmounts the bank of the railway track and on the track side thereof the ground sloped down to the railway track and the course ballast on which the railway track is laid with a drop of some six to eight feet with a moderately steep gradient. The said post and wire fence in June 1989 had at the said point only one strand of wire, namely, the top strand and it was quite simple for any ~ 3 – person, whether adult or child, to go through the said fence, down the bank and onto the railway track. In fact there is an industrial estate on the far side of the railway track and it is clear that this was a short cut used to get to the said industrial estate. On June 16th, 1989 the Plaintiff had taken Gretta, her six and a half year old daughter home from school some time before lunch. Having had her lunch, the six and a half year old went out to play in her own garden and ultimately asked her mother to go out in the front which her mother permitted her to do. Some time later probably in or around 2.30, her mother went to look for her child on the roadway of the cul-de-sac but could not find her. She called her and she became extremely worried that her child might have gone down through the said opening which I have described onto the railway track. Her agitation was increased by the fact that she believed there was a train about to pass along the track into Tralee station. In this agitated state she made her way through the said opening in the said fence down the bank looking for her child. As she went down the bank she could see her child up the track towards Tralee but despite the fact that she was calling to her, the child did not react. The Plaintiff began to run and in so doing she did not see two wires of a signal which were at the edge of the ballast of the track. They were supported by small posts and the top one was approximately 15 inches above the ground. She tripped on it and measured her length on the rough ballast of the track and caused herself quite substantial injury to her right knee. – 4 – It is in these circumstances that she brings this claim against the Defendants. In essence, the Plaintiff’s claim is laid in this way. It is contended that the said railway track is an allurement and a danger to young children if they get on to it and that the First named Defenaants owe a duty of care to children including, inter alia, the Plaintiff’s child, to adequately fence the said railway line and to take reasonable steps to ensure that children do not get onto the said railway track. The Plaintiff’s case is that everything that occurred to her is consequent upon the said Defendants’ said breach of duty to children (including the Plaintiff’s child), in that her injuries were sustained in her efforts, in an agitated condition, to rescue her child from the said railway track and its potential dangers thereon. The essence of her case against the Second named Defendants is on very much the same basis, contending that they as the creators and owners of: (a) the housing estate where young families were likely to reside, owed a duty of care to provide appropriate fencing to prevent the children of the estate from having access to the said railway track, and (b) owed a duty of care in relation to the said field where children from the estate were likely to play to likewise fence off the said railway track. The First named Defendants propounded a defence to this claim under three broad headings, namely:- – 5 – 023!J6 They contended that under the provisions that their obligations to fence the railway track are set out in Railway Clauses Consolidation Act, 1845, 8 Victoria, Cap 20, Section 68 which provides:- “And with respect to works for the accommodation of lands adjoining the railway be it enacted as follows: (LXVIII) The Company shall make and at all times thereafter, maintain the following works for the accommodation of the owners and occupiers of lands adjoining the railway (that is to say •.••• ) and also sufficient posts, rails, hedges, ditches, mounds and other fences for separating the land taken for the use of the railway from the adjoining lands not taken and protecting such lands from trespass, or the cattle of the owners or occupiers thereof from straying thereout by reason of the railway . and all necessary stiles and such posts, rails and other fences shall be made forthwith after the taking of any such lands, if the owners thereof shall so require and the said other works as soon as conveniently may be.” It is also provided under Section 73 in terms following:- “The company shall not be compelled to make any further or additional accommodation works for the use of owners and occupiers of lands adjoining the railway – 6 – v°2′., t”‘10.7 ~ after the expiration of the prescribed period or if no period be prescribed, after five years from the completion of the works and the opening of the railway for public use.” The said Defendant contendea that this was the maximum obligation which they had to perform in relation to fencing. They said that in fact a fence had been so provided and though in a dilapidated condition in fact at the date in question, even if it had been in its pristine form, namely, a post and three strand wire fence, a child could get through it. They contended that if they performed it, as they have done so throughout the length of the railway tracks of Ireland, they were absolved from any further obligation to fence. In my view, the purpose of the said statutory obligation was to preclude trespass by animals either from adjacent lands onto the railway or from the railway onto to the said adjacent lands. It was never intended to constitute a discharge of a common law duty of care to anyone to whom the railway company could be said to owe such duty and in my opinion does not constitute a defence to this claim. The second basis upon which it was contended by the First named Defendants that they had no liability to the Plaintiff’s daughter and a fortiori to the Plaintiff was that the railway had been passing along the boundary to the lands upon which the estate had been built for something of the order of 100 years or more. Prior to the building of the estate it was not foreseeable that the railway could – 7 – constitute at that point and in that area an allurement or danger to children in particular and that if it did constitute such a danger and allurement, that danger and allurement was created by the Local Authority who constructed the housing in an area abutting onto the said railway and thereby created the danger. They submitted that if anybody was liable to the Plaintiff’s daughter and a fortiori to the Plaintiff it was the builder/developer who failed to properly fence the estate and that they had no responsibility. I cannot accept this proposition either. In my opinion the existence or non-existence of a duty of care is always circumstance related. If you are the owner of lands upon which an operation which has a potential for being dangerous but in the circumstances in the past in which it was conducted was unlikely to give rise to injury, and if the circumstances change and it is foreseeable that injury could result to a person or class of persons, then a duty of care is imposed upon the person operating the said potential source of danger. In my view, the circumstances under which a duty of care arises were crystallized by McCarthy J. in Ward -v- McMaster, 1988 I.R. at 349 when he said:- “I prefer to express the duty as arising from the proximity of the parties, the foreseeability of the damage in the absence of any compelling exemption based upon public policy. I do not in any fashion seek to exclude the latter consideration although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured – 8 – party his right to redress at the expense of the person or body that injured him.” In my view it is manifest from the photographs that a number of persons had gone through the railway fence and down the bank onto the tracks. There is evidence by Mr. Andy Kearns th~t he actually found a child on the track and I cannot but assume that the use of this pathway through the railway fence was known to the permanent staff of the First named Defendants. There can likewise be no doubt that any inspection of this fence would have disclosed that it provided no impediment whatsoever to a child in getting on to the railway track. The First named Defendants must have been aware that a number of children resided in the said housing estate and, in my view, must have been aware that some or many of them could and would get down to the track through the said railway boundary fence even if it were in good condition, which it clearly was not. Likewise, the First named Defendants would have been aware that children on a railway track are in serious danger of injury. Thus the ingredients of proximity to the source of danger and foreseeability of damage are clearly present and in my opinion there is a total absence of any compelling exemption based on public policy. In my view, the said First named Defendants owed a duty of care to the children in the said estate to adequately fence the railway track in the vicinity of the estate where children were likely to be and to play and that included the field to the west of the said estate where the gap in the railway boundary fence is. It follows that they owed a duty of care to the Plaintiff’s daughter. In my view, the injuries sustained by the Plaintiff is a direct consequence of the Defendants’ breach of the duty of care in failing to adequately fence the said railway~ Her daughter, one of the category of persons to whom the duty of care was owed, was, by virtue of the failure to fence, at risk on the said railway track. She was of very tender years and quite incapable of looking after herself in any form of emergency. Her mother on, failing to find her, was naturally entitled to be agitated and concerned that she was on the track and in that state of agitation in her quest to recover her daughter, failed to see the signal wires and fell over them. Her failure to see the trip wires was due to the agitation and concern which in turn was created by the absence of a proper fence to prevent children going onto the railway line. That agitation was added to by the fact that the Plaintiff believed that a train was likely to pass down the said track within a matter of minutes. Accordingly, in my opinion the First named Defendants are liable for damages to the Plaintiff. I now return to the question as to whether the said First named Defendants are entitled to an indemnity and/or contribution from the Second named Defendants. In having the said houses constructed the Local Authority, the Second named Defendants, were in essence carrying out one of their duties under the Housing Acts. In my view, they did owe a duty of care to potential occupiers and their children to appropriately fence the lands upon which the said houses were built and lands in their ownership contiguous to the said 1 • • • .. – 10 – housing estate where children would be likely to play and render it reasonably secure from children going through the said boundary onto a potentially dangerous area, namely, the adjacent railway. It was certainly foreseeable that children would, unless a reasonable impediment was placed in their . way, go onto to the railway track which is to many children an allurement. It is not sufficient to say the track was there before the housing estate arrived and that it was the obligation of the railway to have their track appropriately fenced. If a Local Authority constructed a housing estate adjacent to a disused mill and mill-race, it would be no answer to a claim against the Local Authority for injury to a child that it was the duty of mill-owner to fence off the mill-race and, in my view, in the circumstances, the First named Defendants are entitled certainly to contribution from the Second named Defendants. In my view, that contribution should be on the basis that the Second named Defendants should contribute 50% to the damages awarded to the Plaintiff against the First named Defendants. I now turn to the question of damages. I have read the medical reports of Surgeon Fionan O’Carroll FRCSI, Dr. Bridget O’Brien and Surgeon Andrew st. F. Hin1ey. I have also borne in mind the evidence of the Plaintiff of the very severe pain and great discomfort which she suffered in the immediate aftermath of the injury which I would think probably extended over a period something in excess of six weeks. Undoubtedly her mobility thereafter was gravely restricted for, I would have thought, a period of some six , I • ..’ . . . – 11 – months but from that point on she was left with residual complaints of stiffness, tightness of the knee and of some discomfort when kneeling. It is common case between all medical practitioners that she did not suffer any boney injury. It is now six years since the injury and while she has some residual discomfort when her leg is stressed either by long walks or by heavy work, I do not think these are very serious. I would think that the Plaintiff would be fairly compensated for the pain and suffering sustained from the date of accident to the date of trial by a sum of £10,000.00 and looking into the future for such discomfort as she may have from time to time a further some of £2,500.00 would be fair and reasonable compensation. To that figure I would add any agreed sum for minor out of pocket expenses which the parties may agree as none were in fact proved in the course of the hearing. I would also award the Plaintiff the costs of the proceedings on the Circuit Court scale and Certificate for one Senior Counsel. Doc No. 3539J (CS)
Doran v. Delaney (No. 2)
[1999] 1 IR 303
Geoghegan J.
This is an action for damages arising out of a purchase by the plaintiffs of a site for a dwellinghouse in circumstances where the plaintiffs were unable to build due to a defective title in a portion of the property sold. The first defendant was the solicitor for the plaintiffs on the purchase. The second and third defendants were the vendors and the fourth and fifth defendants were the solicitors for the vendors.
The action came on for hearing before the High Court (Hamilton P., as he then was) on the 7th and 8th October, 1993. The hearing was further resumed on the 5th October, 1994. It was decided at the hearing that only liability would be determined and that in the event of liability on the part of one or more of the defendants being found, the damages would be assessed on a later date. The High Court (Hamilton P.) delivered judgment on the 12th September, 1995, and he found the first defendant to be in breach of a duty of care owed to the plaintiffs and he also found the second and third defendants to be liable for breach of duty of care to the plaintiffs including negligent misrepresentation. The High Court absolved the fourth and fifth defendants from all liability and dismissed the action as against them.
The plaintiffs appealed to the Supreme Court against the finding of no liability on the part of the fourth and fifth defendants and the appeal was allowed. The High Court judgment is reported at [1996] 1 I.L.R.M. 490, and the judgments in the Supreme Court of Keane and Barron JJ. (Barrington J. concurring) are to be found at [1998] 2 I.R. 61.
The background facts are as follows. The second and third defendants who are the vendors had themselves started to build a house on the site in question pursuant to a planning permission which they had obtained from Wicklow County Council. They fell into dispute with an adjoining owner, a Mrs. McKimm, who alleged encroachment. Building work ceased and it was decided to apply for planning permission for a smaller house on the site and sell on the land with the benefit of that permission. The map accompanying the planning application wrongly included an area of ground measuring 54 square metres which was in the possession of Mrs. McKimm. This small piece of ground was vital for providing access to the builders in order to build a house. None of this dispute was communicated to the plaintiffs on their purchase from the second and third defendants, and in fact the plaintiffs were shown a map by Southern Estates Limited, the selling agents acting on behalf of the second and third defendants, and were told that the maps represented the correct boundaries. The plaintiffs were never told about Mrs. McKimm’s claim. On advice, however, the plaintiffs did request that the boundary be staked out but they were told by their own solicitor that this was unnecessary and that the matter could be dealt with by inserting a clause in the contract requiring the production of an ordnance survey map which would delineate the property. However any such clause in the contract was itself objected to by the second and third defendants on the grounds that the entire of the property comprised in the folio was being sold. The first defendant agreed to the deletion of the special condition without telling the plaintiffs. A contract was entered into on the 12th September, 1990, for the sale of the property for the sum of £25,000.
In response to a requisition on title which asked whether there was any dispute with adjoining owners in relation to party walls or fences, the fourth and fifth defendants replied “vendor says no”. In response to a further requisition as to whether there was any litigation pending or threatened in relation to the property or whether any adverse claim had been made in respect of it, the fourth and fifth defendants replied “vendor says none”. The fifth defendant had apparently known of the dispute with Mrs. McKimm but had been informed that it had been settled but she had made no inquiries as to the terms of the settlement.
The sale was completed on the 9th October, 1990 and the plaintiffs commenced building operations on the 12th October, 1990, having engaged Ballymore Homes as builders. The solicitors for Mrs. McKimm wrote to the builders informing them that they had encroached upon her land and demanded that they should desist from doing so. The small triangular area of land which Mrs. McKimm was claiming was vital to the building operations as the vehicles were unable to achieve access without it. There was an alternative route but that was via a private right of way and no permission from the owners was forthcoming. After exhaustive and unsuccessful attempts to resolve the boundary problem with Mrs. McKimm, the plaintiffs were forced to resell the property for a sum of £20,000. At this stage they owed the builders over £18,000.
The plaintiffs have claimed from all the defendants the sum of £232,623.22 plus general damages.
The sum claimed for special damages comprises effectively eight items. These are:-
1. loss of family home;
2. expenses incurred incidental to land purchase and sale;
3. the amount owing to Ballymore Homes Limited, the builder;
4. loss of earnings by the plaintiffs due to time spent resolving the difficulties;
5. loss of tax relief on the mortgage payments in that by reason of what happened the plaintiffs have been living in rented accommodation;
6. reinstatement expenses if a family home of equivalent value is now purchased;
7. medical expenses;
8. miscellaneous expenses such as travel, telephonesetc.
The claim for loss of earnings has been properly abandoned at the hearing as being too remote.
In order properly to assess the damages it is necessary to consider first what the precise basis of liability of each defendant is. In doing so I will adopt the order followed by the High Court (Hamilton P., as he then was) and deal first with the liability of the second and third defendants.
The High Court found the second and third defendants to be liable to the plaintiffs on a number of different grounds. These can be summarised as follows:-
1. Having regard to the fact that the planning map was being shown to the plaintiffs as representing the boundary of the property sold and having regard to the then knowledge of the second and third defendants as to Mrs. McKimm’s claim, the second and third defendants owed a duty to the plaintiffs to inform them of Mrs. McKimm’s claim to ownership of a portion of the property being sold and that in failing to do so they were in breach of that duty.
2. The second and third defendants made a negligent and therefore actionable misrepresentation to the plaintiffs in indicating to the plaintiffs in their replies to the requisitions on title that there was no dispute with regard to the boundaries and that there was no litigation pending or threatening in relation to the property or any part thereof and that no adverse claim thereto had been made by any person.
3. The second and third defendants had negligently represented to the plaintiffs that the property shown on the map produced to them by Southern Estates Limited represented the property for sale and that it included the 54 square metres area adjoining the public road and that there was no dispute with regard to this area and no adverse claim made in respect thereof and that the plaintiffs relied on these representations.
As a consequence of these breaches of duty by the second and third defendants, the plaintiffs were unable to gain access to the site for the purpose of building thereon and they therefore suffered substantial loss and damage. At the hearing of the action there was a good deal of discussion about distinctions between the measure of damages for breach of contract and the measure of damages in tort. There is of course a theoretical distinction but for the reasons which I will be demonstrating I do not think that it makes any practical difference in this case. If a party to a contract breaks that contract the other party is entitled to be compensated on the basis of what he has lost by reason of the contract not being performed. On the other hand the measure of damages appropriate for the tort of negligence is the loss sustained by reason of the breach of duty or in other words in the case of say negligent misrepresentation the plaintiff must be restored to the position he would have been in if the misrepresentation had not been made. The hallowed phrase used is restitutio in integrum.These rules, whether it be the contractual measure or the tortious measure are always subject to the special principles of mitigation of damages and remoteness of damage. It has been urged on me by counsel for the fourth and fifth defendants that, in relation to his clients at least, I should apply the decision of the High Court (Finlay P., as he then was) in Taylor v. Ryan, (Unreported, High Court, Finlay P., 10th March, 1983). I intend to consider first whether the approach to damages adopted in that judgment is appropriate when considering the liability of the second and third defendants.
Taylor v. Ryan (Unreported, High Court, Finlay P., 10th March, 1983) was an action for damages for negligence and breach of contract against (inter alia) a solicitor who allowed his client purchase what he had thought to be an ordinary licensed premises but it turned out that the licence was in respect of a hotel and it was not possible for the plaintiff to provide the necessary number of bedrooms to render the licence valid. That was a very simple straightforward case and Finlay P., as he then was, effectively adopted what is undoubtedly the prima facie measure of damages in such cases by following the English decision of Ford v. White & Co. [1964] 1 W.L.R. 885. In particular the former President expressly adopted what he described as “the clear statement” at p. 888 in the judgment of Pennycuick J. in White which read as follows:-
“In the simple case of the purchase of property at a price in excess of its market value as a result of wrong advice, the measure of damage must be the difference between (1) the market value of the property at the date of the purchase and (2) the price actually paid.”
In fact the High Court (Finlay P., as he then was) did not keep strictly to that measure in that he pointed out that the defect or want in the legal status of the premises arising from the negligence of the solicitor, whilst it existed at the time of the completion of the sale, was not finally determined by him until much later and that it would be unjust for the plaintiff to have his damages assessed on the basis of the value at the date of the completion of the purchase when he was expressly advised by the solicitor up to that time that there appeared to be at least a reasonable chance of minimising the loss by various alternative applications under the Intoxicating Liquor Acts. In that particular case, the plaintiff did not establish that there was any difference between the market value of the property without a licence and the price which he paid for it. In the event, the plaintiff was only allowed some damages in the form of interest on money lost. There were no complicated issues in respect of the measure of damages in that case. Still less was there any discussion as to the extent if at all that a court can take into account impecuniosity on the part of a plaintiff in the assessment of damages whether in the context of mitigation or in the context of the date on which the loss should be valued. None of these questions arose in that case. If the damages were assessed on a Taylor v. Ryan (Unreported, High Court, Finlay P., 10th March, 1983) basis in this particular case, an injustice would be caused to the plaintiffs in my view. Of course it sometimes happens that an injustice of sorts is caused in the measuring of damages in that part of a plaintiff’s real loss may be considered by the law to be too remote to be recoverable even though he has in fact suffered such loss. In considering the proper measure of damages in this case therefore I must at all times bear that principle in mind and be careful not to assess damages which should be disallowed on the grounds of remoteness. But reasonably foreseeable loss flowing either from a breach of contract or from a negligent misrepresentation relied upon cannot be considered too remote. If I were to adopt the Taylor v. Ryan measure in relation to the second and third defendants’ liability in this case, the measure of damages would be no different than that argued for by counsel for the fourth and fifth defendants (leaving aside any question of general damages) and would consist of the following items as suggested by counsel for the fourth and fifth defendants:-
1. the deficiency of £5,000 in that £25,000 was paid over on completion of the sale and only £20,000 was realised on the resale a year later;
2. loss of interest for approximately a year between the completion of the original sale and the completion of the resale;
3. the costs of the abortive sale;
4. some Courts Act interest for delayed payment.
But I fail to see how this would in any way represent the real loss of the plaintiffs arising from the second and third defendants’ breaches of duty and negligent misrepresentations. At the time that the contract was being entered into the second and third defendants were well aware that the plaintiffs required the property as a site on which to build a house and they could have reasonably foreseen that if there was a bad title to the small triangular area which would be likely to be used for builders’ access, a dispute would ensue with resultant loss to the plaintiffs and in particular debt incurred to the builder without any return for it. It would have been also reasonably foreseeable to the second and third defendants that a young couple such as the plaintiffs, if they were going to incur loss of that kind, would neither themselves have the wherewithal nor have the capacity to procure loan finance to get an alternative site and build the house on it or buy a house of the kind that they wanted with whatever net proceeds would be left to them after liabilities would have been incurred both to the builder and their solicitors, inter alia,arising out of the title problems. If the contract had been performed as intended, the plaintiffs would have built the intended house and would probably still be living in it. By the same token if the truth had been told and the misrepresentations had not been made the plaintiffs would have been able to and would in fact have lawfully rescinded the contract in advance of completion and would then have applied the monies available to them either in buying a suitable house or buying an alternative site and building a suitable house. It seems to me therefore that the same kind of losses flow from either breach of contract or misrepresentation and that the theoretical distinctions between the contract and tortious measure of damages do not, as is indeed so often the case, make any practical difference to the measure of damages in this case.
But what this Court must now consider is whether the court is entitled at all to take into account the impecuniosity of the plaintiffs in considering the real losses. There have been theories that losses arising from impecuniosity are separate losses and do not arise from the wrong of the defendants. There have also been theories that losses arising from impecuniosity are too remote. It seems clear fromMcGregor on Damages that the English courts have been gradually whittling away any idea that impecuniosity cannot be taken into account. I will illustrate this by reference to decided cases which are gone into in some detail in McGregor on Damages, 16th ed., paras. 817 and 216.
The first is Liesbosch Dredger v. Edison S.S. (Owners) [1933] A.C. 449. In this case the House of Lords held that the plaintiff’s lack of funds could not be taken into account and it was the leading authority on this point. But it is quite clear that there has been a steady derogation from it ever since and it is now considered to have been decided on its own facts. The case concerned a ship lost at sea by collision due to the negligence of another vessel. It is I think worth quoting a lengthy passage from the speech of Lord Wright with whom the other Law Lords agreed at page 459:-
“The substantial issue is what in such a case as the present is the true measure of damage. It is not questioned that when a vessel is lost by collision due to the sole negligence of the wrongdoing vessel the owners of the former vessel are entitled to what is called restitutio in integrum, which means that they should recover such a sum as will replace them, so far as can be done by compensation in money, in the same position as if the loss had not been inflicted on them, subject to the rules of law as to remoteness of damage.
The respondents contend that all that is recoverable as damages is the true value to the owners of the lost vessel as at the time and place of loss. Before considering what is involved in this contention, I think it desirable to examine the claim made by the appellants, which found favour with the Registrar and Langton J., and which in effect is that all their circumstances, in particular their want of means, must be taken into account and hence the damages must be based on their actual loss, provided only that, as the Registrar and the judge have found, they acted reasonably in the unfortunate predicament in which they were placed, even though but for their financial embarrassment they could have replaced the Liesbosch at a moderate price and with comparatively short delay. In my judgment the appellants are not entitled to recover damages on this basis. The respondents’ tortious act involved the physical loss of the dredger; that loss must somehow be reduced to terms of money. But the appellants’ actual loss in so far as it was due to their impecuniosity arose from that impecuniosity as a separate and concurrent cause, extraneous to and distinct in character from the tort; the impecuniosity was not traceable to the respondents’ acts, and in my opinion was outside the legal purview of the consequences of these acts. The law cannot take account of everything that follows a wrongful act; it regards some subsequent matters as outside the scope of its selection, because “it were infinite for the law to judge the cause of causes”, or consequences of consequences. Thus the loss of a ship by collision due to the other vessel’s sole fault, may force the shipowner into bankruptcy and that again may involve his family in suffering, loss of education or opportunities in life, but no such loss could be recovered from the wrongdoer. In the varied web of affairs, the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons. In the present case if the appellants’ financial embarrassment is to be regarded as a consequence of the respondents’ tort, I think it is too remote, but I prefer to regard it as an independent cause, though its operative effect was conditioned by the loss of the dredger. The question of remoteness of damage has been considered in many authorities and from many aspects, but no case has been cited to your Lordships which would justify the appellants’ claim.”
Lord Wright went on to express the view that the damages had to be assessed as if the appellants had been able to go into the market and buy a dredger to replace the lost ship.
That this approach is not appropriate in every case became quite clear in later decisions. In Muhammad Issa el Sheikh Ahwad v. Ali [1947] A.C. 414, the Judicial Committee of the English Privy Council permitted the plaintiffs’ impecuniosity to be taken into account in measuring damages on the basis that on the facts of that case such impecuniosity was “not a separate and concurrent cause of the land being sold in execution”. Thebasic facts of the case were that the respondents had agreed to sell certain lands to one H. who made some part payments of the purchase price and by the contract the respondents undertook to pay H. a certain sum of money by way of liquidated damages if they breached the contract. The land was not transferred to H. and later the respondents undertook to sell the land to the appellants by an agreement which provided, inter alia,that the appellants would indemnify the respondents against all claims made by H. up to a particular sum. After completion of the sale by the respondents to the appellants, H. sued the respondents for damages for breach of contract and obtained judgment and an order for payment of the judgment debt by instalments. The appellants paid one instalment and to enforce his judgment H. obtained an order for the sale of other land belonging to the respondents which was sold in execution proceedings after the commencement of the proceedings in question but before the case was heard at a price substantially below its value because of it being an execution sale and out of the proceeds H.’s judgment debt and interest were satisfied. It was held by the Judicial Committee that in the circumstances the loss resulting from the execution salei.e. the difference between the value of the land and the price for which it was sold was not too remote and was also to be taken into account in assessing the damages recoverable.
The derogation from Liesbosch, Dredger v. Edison S.S. (Owners) [1933] A.C. 449 was further developed in Monarch Steamship Co. Ltd. v. Karlshamns Oljefabriker (A/B) [1949] A.C. 196. It is not necessary to go into the facts of that case which were totally different from this but some important principles of law in connection with the assessment of damages can be gleaned from it. I would again cite a lengthy passage from the speech in this particular case of Lord Wright at p. 223:-
“Remoteness of damage is in truth a question of fact, as Viscount Haldane L.C. describes it in the British Westinghouse Electric & Manufacturing Co. Ld. v. Underground Electric Rys. Company of London Ltd. He says with reference to questions as to damages: “In some of the cases, there are expressions as to the principles governing the measure of general damages which at first sight seem difficult to harmonize. The apparent discrepancies are, however, mainly due to the varying nature of the particular questions submitted for decision. The quantum of damage is a question of fact, and the only guidance the law can give is to lay down general principles which afford at times but scanty assistance in dealing with particular cases. The judges who give guidance to juries in these cases have necessarily to look at their special character, and to mould, for the purposes of different
kinds of claim, the expression of the general principles which apply to them, and this is apt to give rise to an appearance of ambiguity”. He then states the broad principle of compensation to which I have already referred and adds a reference to the ancillary duty of minimizing damage. It is I, imagine, with language like that of Viscount Haldane L.C. in his view that Lord Atkin (then Atkin L.J.) in The Susquehanna says:”This is one of those cases dealing with damages which, in my experience I have found to be a branch of the law on which one is less guided by authority laying down definite principles than on almost any other matter that one can consider”. Viscount Haldane L.C. in the passage just cited, had to deal with a case where, as he said, it was necessary “to balance loss and gain” and no simple solution was possible. Again in Liesbosch (Owners) v. Edison (Owners), this House made some observations on the measure of damages, which are of general import. The case was one of tort. The question there was what was the proper sum to award by way of compensation for the loss of a dredger. It was said: “Many, varied and complex are the types of vessels and the modes of employment in which their owners may use them. Hence the difficulties constantly felt in defining rules as to the measure of damages. I think it impossible to lay down any universal formula”.Earlier in the judgment it was said: “The dominant rule of law is the principle ofrestitutio in integrum,and subsidiary rules can only be justified if they give effect to that rule”. In Liesbosch (Owners) v. Edison (Owners), it was held that loss due to the party’s impecuniosity was too remote and therefore to be neglected in the calculation of damages: it was special loss due to his financial position. A different conclusion was arrived at in Muhammad Issa el Sheikh Ahwad v. Ali ,where damages consequent on impecuniosity were held not too remote, because, as I understand, the loss was such as might reasonably be expected to be in the contemplation of the parties as likely to flow from breach of the obligation undertaken (see the judgment of the Judicial Committee delivered by Lord Uthwatt). The difference in result did not depend on the differences (if any) between contract and tort in this connexion. The “reasonable contemplation” as to damages is what the court attributes to the parties. The breach itself is, of course, objective. The constant necessity of picking out from a plurality of items that which is material is also remarked upon in the judgment in Liesbosch (Owners) v. Edison (Owners) .”
It can be seen from these passages, therefore, that loss is not too remote if it could have been reasonably within the contemplation of the parties at the time of entering into the contract (in the case of breach of contract) or at the time of making the misrepresentation or committing the breach of duty (in the case of tort). The modern approach to impecuniosity was also adopted in Dodd Properties (Kent) Ltd. v. Canterbury City Council [1980] 1 W.L.R. 433 and Perry v. Sidney Phillips & Son [1982] 1 W.L.R.. 1297.
In the Perry case at p.1307 Kerr L.J. had this to say:-
“In any event, it seems to me that the authority of what Lord Wright said in The Liesbosch [1933] A.C. 449 is consistently being attenuated in more recent decisions of this court, in particular in Dodd Properties (Kent) Ltd. v. Canterbury City Council [1980] 1 W.L.R. 433 and what was there said, at pp. 458 to 459 by Donaldson L.J. If it is reasonably foreseeable that the plaintiff may be unable to mitigate or remedy the consequence of the other party’s breach as soon as he would have done if he had been provided with the necessary means to do so from the other party, then it seems to me that the principle of The Liesbosch [1933] A.C. 449 no longer applies in its full rigour. In The Liesbosch ,as I see it, it was not reasonably foreseeable that the plaintiff would be put into the difficulties in which he was put by the other party’s breach of duty.”
Impecuniosity has been taken into account in the assessment of damages by the High Court (Finlay P.) in Quinn v. Quality Homes Ltd., [1976-7] I.L.R.M. 314 and by the High Court (McWilliam J.) in his second judgment in Riordan’s Travel v. Acres, [1979] I.L.R.M. 3. Indeed, McWilliam J. makes trenchant criticisms of Liesbosch, Dredger v. Edison S.S. (Owners) [1933] A.C. 449 at p. 9 of the report. In summary, therefore, while theprima facie measure of damages is that set forth in Ford v. White & Co. [1964] 1 W.L.R. 885 as cited above and as approved by the former President in Taylor v. Ryan (Unreported, High Court, Finlay P., 10th March, 1983) this measure is not appropriate where it would be reasonably foreseeable that the person damnified would as a consequence of impecuniosity have been unable to mitigate the loss until recouped by the offending party.
I find as a fact that the plaintiffs in this case acted perfectly reasonably after the debacle had occurred and that losses flowing from their having to salvage the situation as best they could due to their inability to raise alternative funds to put them back in the position which they would have been but for the breaches of duty and misrepresentations are allreasonably foreseeable losses. Of course the plaintiffs also alleged that the first plaintiff made certain decisions in connection with his business and incurred some financial losses in connection therewith which would not have been incurred but for the second and third defendants’ breaches of contract and torts but I already ruled at the hearing of the action and I think it has been accepted by the plaintiffs that these particular losses are too remote.
If my analysis so far is correct, then the plaintiffs must recover from the second and third defendants a sufficient sum now to enable them to acquire the four bedroomed house which they had intended to have together with all other foreseeable losses such as the liability to the builder, cost of the abortive sale, costs owing to their solicitors in connection with trying to have the problems with Mrs. McKimm resolved and the possible exploring of alternative modes of access for the builders by using a private road. That road could only be used with the permission of the owners and in the event that could not be obtained. The plaintiffs very nearly reached an agreement with Mrs. McKimm whereby she would have sold the necessary triangular portion of property but it then emerged that she herself did not have a marketable title and there was no way in which such a title could be made. The plaintiffs cannot be faulted for exploring all these avenues. In my view, they acted reasonably at all times. It might be suggested perhaps that the first plaintiff aggravated the situation by lodging opposition to a planning application of Mrs. McKimm’s. While there is no doubt that this did not endear the first plaintiff to Mrs. McKimm, I think that if anything it did have the effect of speeding up the possible resolution of the disputes in that Mrs. McKimm became anxious to settle with the first plaintiff in order to have his opposition to her planning application withdrawn. In the event, however, a settlement was not possible due to Mrs. McKimm having no marketable title. But I do not think that the first plaintiff’s opposition to the planning application can be regarded as either contributory negligence or a failure to mitigate his losses. I have indicated the general nature of the losses for which the second and third defendants must be held liable. I will attempt to quantify them later on in this judgment.
But I turn now to the question of how the damages against the first defendant should be measured. The High Court (Hamilton P., as he then was) found him in breach of the duty owed by him to the plaintiffs to ensure before the execution of the agreement for sale that such agreement “contains a condition which would clearly establish the extent of the boundaries of the land being acquired by the plaintiffs, that the land beingacquired was the land shown on the map presented to the plaintiffs and that there was access to the land for the purposes of construction thereon”. If the first defendant had performed his legal duty of care which was a duty arising both in contract and in tort the problem about the boundaries would have been discovered and the sale would never have been closed. The £25,000 could then have been put to analogous alternative use. There would of course have been no debt owing to the builders because matters would have never reached the stage where they would have attempted to enter the site. The losses which I have held were reasonably foreseeable as arising from the second and third defendants’ breaches of contract and tortious conduct equally flow from the negligence of the first defendant and it is immaterial whether one considers that negligence from a contractual or a tortious point of view.
Despite counsel for the fourth and fifth defendants’ valiant attempt to argue otherwise, I cannot see that the losses flowing from the negligence of the fourth and fifth defendants,i.e. the solicitors for the vendor are any different either. To illustrate this, I think it appropriate to cite in full the second last passage of the leading judgment in the Supreme Court delivered by Keane J. at p. 77:-
“I conclude, accordingly, that the vendors’ solicitors owed a duty of care to the plaintiffs when they replied to requisition 13.8. It remains to be considered whether they were in breach of that duty. In the circumstances of this case, I am satisfied that they were. There are many instances in which a solicitor acting in a transaction such as this would be perfectly entitled to convey without comment the information furnished to him by his client, but this was not one of them. It is not a question of the vendors’ solicitors having to query the veracity of the instructions being furnished to them by their own client: even if those instructions were perfectly correct, it could have meant that the dispute had been settled on terms that the vendors acknowledged the title of Mrs. McKimm to the triangular area. In failing to ascertain the terms on which the dispute had been settled and conveying that information to the plaintiffs, they were in breach of their duty of care to them. On one view, that urged on behalf of the plaintiffs, they had, in any event, not accurately transmitted the vendors’ instructions, since those merely indicated that the dispute had been settled: they did not indicate, as the reply to the requisition on one reading did, that no claim to the triangular portion was at the date of the reply being made by Mrs. McKimm. At the very least, however, the reply, because of the manner in which it was framed did not convey all the information to which the plaintiffs were entitled and, as I have already said, a partial statement in such circumstances may be equivalent to a misstatement or misrepresentation. It is right to say that no one in this case has suggested that the vendors’ solicitors deliberately intended to mislead the plaintiffs or their solicitor: unfortunately, however, they had, in all the circumstances insufficient regard to the duty which they clearly owed to the plaintiffs. Had they got in touch with Cunningham & Co., it would have transpired that Mrs. McKimm had not abandoned her claim to the 54 square metres and that her claim was well founded in law. The plaintiffs would then clearly have been in a position to rescind the contract and recover their deposit because of the vendors’ misrepresentations.”
In my view, at the stage when the fourth and fifth defendants replied to that requisition, they could have reasonably foreseen that the plaintiffs would not be in a position simply to resell the property at a discount and to purchase and build on an alternative suitable site or purchase an alternative suitable house and they could also have reasonably anticipated that the plaintiffs would incur indebtedness to their builders and solicitors. If the replies to the requisitions had been properly attended to the plaintiffs would not of course have been able to have their contract performed. On the contrary, they would have rescinded it but they would have been in a financial position either to build or procure a similar house elsewhere. I can therefore find no legal justification for differentiating between the fourth and fifth defendants and the other defendants in the measure of the financial loss recoverable by the plaintiffs.
I now turn to what that recoverable financial loss is. The plaintiffs’ claim is set out in detail in up to date particulars dated the 8th June, 1998. There may be some room for argument as to how exactly the reasonably foreseeable financial loss incurred by the plaintiffs ought to be calculated. The largest item of loss claimed is item no. 1 being the loss of the family home. The current market value of a four bedroomed house of the kind which the plaintiffs were intending to build is claimed as £225,000 and that accords with the evidence before me. A calculation has then been done which might possibly be criticised as somewhat artificial whereby the Irish Permanent plc. have worked out the effects that the rental payments which the plaintiffs have had to make in connection with their rented accommodation ever since would have had on their home loan mortgage of £50,000 had the rental payments been paid on foot of a home loan mortgage account instead. The balance that would be due on foot of this home loan mortgage account as of the 31st December, 1998, (being
the date to which the plaintiffs are contractually obliged under their current tenancy agreement) would have been £49,629.23. In making their claim, the plaintiffs are deducting that sum from the £225,000 and they are then making a further deduction of the £20,000 which was the original resale price of the site leaving a net balance of £155,370.77. A possible problem with this approach is that had the original scheme gone ahead as planned the mortgage payments would not have corresponded to the rental payments and what further complicates matters is that there would have been a tax allowance on the mortgage payments but not of course on the rental payments. The evidence of the witness from the Irish Permanent plc. was to the effect that the amounts of the mortgage payments would have fluctuated considerably depending on interest rates and that at different times they could have been greater or less than the rental payments. Taking the tax allowance factor and all other factors into account it seems to me unlikely that the balance due on the mortgage if it had gone ahead as planned as of the 31st December, 1998, would be greater than the sum just short of £50,000 which has been calculated. I think, therefore, that the plaintiffs’ approach can be accepted.
Item no. 2 is expenses incidental to land purchase and sale plus interest. In relation to this item I will allow the principal sum of £6,725.84 but not the interest claimed. It does not seem to me that there would be any cause of action to recover that interest though of course it can be regarded as a loss suffered. After hearing submissions from counsel I will consider whether some element can be recovered by way of interest pursuant to the Court’s Act, 1981.
I will not allow the full amount of item 3, that is to say, the sum of £18,041.38 due to Ballymore Homes Limited. On the evidence which I heard, it seems to me that that claim by the builder was excessive and it is of considerable significance that not one penny of it has ever been paid. I would expect that if the plaintiff recovers a sum of £12,000 under that item Ballymore Homes Limited will be satisfied to accept it in discharge of their debt. I will therefore allow £12,000.
I am of course totally disallowing item 4 being loss of earnings as being too remote.
Having regard to the substantive basis of the plaintiffs’ claim relating the mortgage payments to the rentals I will not allow a separate claim for loss of tax relief as is contained in item 5. I will therefore totally disallow that item.
I will allow the whole of item 6 as it clearly represents the expenses which the plaintiffs undoubtedly will incur in reinstating themselves in a family home of equivalent value. I will also allow item 7, the medical expenses, etc. and the figure of £1,000 for miscellaneous expenses does not seem to me to be unreasonable, i.e. item 8.
The total special damages being allowed amount to £192,198.56.
I now have to consider the question of general damages. I am satisfied that both plaintiffs have been put through a high degree of anxiety and upset as a consequence of the defendants’ negligence. The second plaintiff, in particular, has been badly affected and her health has been undermined. On the other hand, I must take into account the fact that even if the requisitions on title had been accurately answered, there would have been some degree of upset because the sale could not then have been completed and I think that there would have been a good deal of the same hassle connected with trying to get the title cleared and seek alternative access, etc. Nevertheless, the big difference would have been that the plaintiffs would not have parted with their money. In assessing damages, I am particularly having regard to the judgment of the High Court in Roche v. Peilow (Unreported, High Court, Carroll J., 8th July, 1986). I would make a joint award as against all the defendants of £10,000 general damages.
The total damages to which the plaintiffs are entitled, therefore, amount to £202,198.56. On apportionment of liability in relation to the indemnity/contribution claims I will hear counsel further, though the High Court (Hamilton P., as he then was) has already held that the first defendant is entitled to be indemnified by the second and third defendants.
Phillips v Durgan
[1991] ILRM 321 (SC)
Finlay CJ (Hederman J concurring): These are two appeals against two awards made at the hearing of actions heard together by Egan J in the High Court on the 16th February 1989.
The two plaintiffs in this proceedings are husband and wife, and claim damages against the defendant in respect of personal injuries suffered by them in a fire which occurred in the defendant’s house on an occasion when, as the result of a contract made hetween the defendant and the plaintiff Sadie Phillips, she and her husband, the plaintiff Liam Phillips, were commencing to carry out the work of cleaning the kitchen prior to painting and decorating it. In the High Court the learned trial judge found that the defendant was liable, refused to make any finding of contributory negligence against either plaintiff and assessed damages in the case of Sadie Phillips in a sum of £100,000, and in the case of Liam Phillips, in a sum of £34,000.
The defendant has appealed against the finding of liability in each case, and against the failure to make a finding of contributory negligence in each case.
Each plaintiff has appealed against certain individual findings made in the judgment of the learned trial judge concerning the issue of liability …
The facts
The plaintiff, Sadie Phillips, is a sister of the defendant, and in 1981 the defendant who had after the death of his mother in 1975 lived on his own in the family house, which was his property, decided to sell it.
He requested the plaintiff, Sadie Phillips, to paint and decorate the house, and he paid her a sum of £100 to do so. The evidence was that neither of the plaintiffs had been in the kitchen of the house since some time before the death of Sadie Phillips’ mother in 1975. The defendant, upon requesting the work to be carried out by the plaintiff Sadie Phillips, did not give any form of warning of any description to either of the plaintiffs concerning the condition of the house and, in particular, concerning the condition and situation in the kitchen.
On the 19th January 1981, the plaintiff, Sadie Phillips, went to the house in the evening. She was driven there by her husband Liam Phillips, and as the house was some distance from the place where Mr and Mrs Phillips then lived, and since Mrs Phillips did not drive a car herself it is clear that it must have been within the contemplation of the defendant that Mr Phillips would at least be involved in coming with his wife to the house to drive her there and probably would also take part in carrying out the work. The defendant was not present in the house when they arrived. They went first into the kitchen of the house to start the preparatory cleaning prior to painting. The kitchen was in a condition of extreme dirt and filth, most of which consisted of many years’ accumulation of grease from constant frying on a gas cooker which was situated in the kitchen. On the floor was a linoleum which was broken in one particular place, in front of the cooker and out of which there was protruding newspapers which had been originally put as a lining between the linoleum and the tiles below it. Loose on the floor were an accumulation, apparently arising over a long time, of paper bags which were greasy as the result of having contained fried chips or fried fish purchased in them. The cooker itself was deeply embedded with grease on all parts of it, and the wall immediately adjoining it and at the side ofit was heavily coated with grease as well.
The plaintiff, Sadie Phillips, commenced the task of cleaning, as might be expected, by trying to provide herself with hot water, having brought detergents, wire wool and other pieces of equipment with her. The geyser did not work and could not be made to work, and after trying all four of the jets on the cooker, she succeeded in getting one to light in a defective fashion. Upon that jet, which was described by her as stuttering, she placed a kettle of water to boil. There was no hot water running in any system in the
house. Having done that, Sadie Phillips commenced with her right hand to scrape witha tool the side of the cooker and the wall beside it to try and start removing grease from it. In her left hand she had a cloth which was for the purpose of following up and scraping witha cleaning or rubbing movement. She described being down on her “hunkers” and standing up, steadying herself whilst so doing, on the cooker. She apparently slipped or stumbled, due probably to the greasy condition of the floor, and in so doing the cloth in her left hand came in contact with the flame under the kettle. It immediately took light because of the grease which had already accumulated on it, and she dropped it straight away onto the floor, and attempted to put it out by stamping on it. In what is described by both the plaintiffs as an extra-ordinarily short time, the whole area around the cooker, including the floor, the papers on it and the cooker itself, appeared to be on fire, and the plaintiff, Sadie Phillips, was extensively burned as a result of the fire on the floor catching, in the first instance, onto her slippers which she was wearing, and thereafter her clothes as well. She was dragged out by her husband who in the process of dragging
her out and also in having attempted to put out the fire in which in effect she was standing, was also injured.
The judgment
On those facts the finding of the learned trial judge on the issue of liability is contained in a judgment in the following terms:
“Now it is suggested that the defendant in this case should have warned the plaintiffs as to the dirty condition of the floor and, because I regard the floor as being really the relevant dirty thing in this case, but when both plaintiffs arrived they could see quite clearly that the floor was greasy, so his failure to warn them of the greasiness was in my opinion irrelevant, but we are still in the position that a fire started in this dwelling-house which was the property of the defendant and presumably of some value, and the plaintiff was his sister. This fire started – I am not holding the fire started because of the immediate negligence of either party – I am certainly not holding that the fire started because of the negligence of either plaintiff because it didn’t. But the fire did start andI think ona principle which has been used in other countries and which is akin to a rescue principle that here they are situated in a house belonging to the plaintiff’s brother wherea fire has started and a fire is spreading, that in my view they are under a moral, if noat legal, but certainly a moral obligation to do the best they can in the face of this fire to prevent it spreading, to try if possible to put it out because it may well be that the house could have
been in peril of going completely up in flames. Fortunately it didn’t but no one can have known that at the particular time.
On that principle, because it was the plaintiff’s brother’s house and because the dirty
condition of it in some way contributed to this fire occurring, I think these plaintiffs are entitled to succeed.”
The defendant’s submission concerning this finding may thus be summarised.
(a) The principle ofrescue does not apply in Irish law.
(b) Even if the principle ofrescue applies in Irish law it only applies if a fire which has occurred causes danger to persons as distinct from danger to property.
( c) Once the learned trial judge made a finding that the fire was not caused by the
“immediate negligence” of the defendant, the defendant was entitled toa direction.
( d) The learned trial judge was wrong to consider as relevant to the issue of liability the relationship between the plaintiff Sadie Phillips and the defendant.
The law
I have come to the conclusion, with regard to the legal issues arising in this case, that the folIowing is the position. I am satisfied that what is described as the principle of rescue, what is dealt with in the case of Ogwo v Taylor [1987] 3 All ER 961, truly consists 1111l y of a situation in which the court will rule as a foreseeable consequence of the negligent commencement of a fire that persons seeking to put out that fire, either by reason of their duty as officers of a fire brigade or by reason of their desire to prevent damage, whether to persons or property, may be injured by the existence of the fire. It is essentially, therefore, a doctrine of foreseeability and cannot, in my view, come into operation without an initial negligence causing the fire. In those circumstances, it seems to me that the manner in which the learned trial judge appears to have applied what he 1kseribes as the doctrine of rescue is in law correct.
Furthermore, however, I am satisfied that in so far as it is possible to construe the judgment of the learned trial judge in this case as acquitting the defendant of negligence contributing to this fire and these injuries, by reason of the fact that the plaintiffs could see the condition of the premises, that would not be a correct statement of the law which is applicable. Having regard to the decisions of this court in the case of O’Donohoe v
Greene [1967] IR 40, and Morley v The Eye, Ear and Throat Hospital [1967] IR 143, and having regard to the judgment of Griffin J, which is unreported, in the case of Foley v, Musgrave delivered on the 20th December 1985, I am satisfied that the obligation in law of the defendant on this occasion, where he sought to have work carried under a contract in his house, was to warn the plaintiffs of the particular risks and hazards which could reasonably be foreseen in the type of work which he was asking them to carry out, and to provide them either with a means of carrying out that work which was safe, or to issue to them a warning prior to their arrival for the commencement of the work, of the sort of preparations which might be necessary and the sort of equipment which it might be necessary to bring in order to carry out the work with safety.
In so far, therefore, as the learned trial judge held that the defendant was not 11egligent contributing to the happening of this fire, in my view that was a decision which was incorrect in law.
In many instances these two views, acceding in a sense to some of the grounds upon which the defendants rely in their appeal, and also to some of the grounds upon the
plaintiffs rely in their cross-appeal on the issue of liability, would lead to a re-trial of these proceedings.
Having regard, however, to the situation in which the primary facts are nowhere in dispute, either in the form of contradictory evidence or in the form of any suggestion by way of cross-examination, that any account of the condition of the kitchen or the happening of the fire was inaccurate, this court is, in my view, in as good a situation as would be a court of trial to raise inferences from the facts as established in order to reach conclusions with regard to the issue ofliability in this case. Having regard to the fact that the accident out of which these claims arose occurred in 1981 and that this appeal is now being concluded almost ten years later, I have no doubt that the interests of justice are that this court should decide the issues between the parties.
I have come to the conclusion that the defendant was negligent on this occasion. The particular task which he was asking the plaintiffs to carry out in this kitchen was, having regard to the evidence of the condition of the kitchen, a most unusual task of cleaning which no ordinary person could be expected to anticipate. He owed a duty to the people whom he was asking to carry out the work for him to give some consideration to how it might be done with safety. That he cannot have done, having regard to the fact that he neither arranged any method of providing hot water, which was essential, without permitting the lighting of a jet on the cooker, nor gave to the plaintiffs any specific warning, as he should have done, having regard to the condition of the cooker and the failure to work of the geyser, that they would have to provide a system of work involving, presumably, the use of hot water, which avoided the risks associated with the excessively and unusually greasy condition of the cooker and its surrounding area.
The duty of care which the defendant owed and which appears to me to be a reasonable duty, could have been discharged in a number of different ways, the most obvious of which would appear to be that he could have arranged to have the geyser repaired from whatever fault occurred in it before asking anyone to start cleaning the kitchen. The second possible alternative was that he could have specifically warned the plaintiff, Sadie Phillips, when entering into the contract with her, of the fact that there was no method of making hot water otherwise than by the flame, and of the fact that the entire place was excessively and abnormally greasy. Such a warning would, to a person with the ordinary experience of a housekeeper, which the plaintiff Sadie Phillips had, be sufficient for her to devise some method of commencing work which would not have involved the risks which eventually took place. For these reasons I conclude that the defendant was negligent and that his negligence contributed to the fire and to the consequent injuries to both the plaintiffs in this case.
The fact that the plaintiffs could see the condition of the kitchen as soon as they actually got into it is relevant on the issue of contributory negligence. Here it appears to me that the legal position of each of the plaintiffs is different. I do not consider that the plaintiff Liam Phillips could be found guilty of contributory negligence to this accident. What he did after the fire had started was the natural and obvious thing to do, and could not be an act of contributory negligence, namely, an attempt to put out the fire and to save his wife.
With regard to the plaintiff Sadie Phillips, however, the position appears to be different. She was aware, as she was the person who lit it, of the stuttering nature of the flame under the kettle on the gas cooker. She was aware, because she was standing immediately beside it, of the extremely greasy nature of the cooker itself and of the immediately surrounding area, and she was aware of the condition of the floor. In those circumstances it seems to me that a standard of reasonable care for her own safety would
have required that she took some special precautions about where she was working, until such time as the kettle had been boiled and the flame had been turned off.
This was an accident, however, which was, in my view, with regard to the question of culpability by far the greater fault of the defendant who created this task and these uniquely dangerous conditions in which he expected it to be carried out, than the fault of llll’ plaintiff Sadie Phillips. I would assess the level of contributory negligence on her p11rly as I 5 per cent, with 85 per cent on the part of the defendant….
I would, therefore, allow so much of the defendant’s appeal as was against the finding ng of contributory negligence in the case of Sadie Phillips only, and would assess her contributory negligence at 15 per cent; I would dismiss the appeal against the I11,ding of contributory negligence in the case of Liam Phillips; and I would dismiss
The defendant’s appeal against the finding of liability in both cases against him.
Griffin J: I agree with the judgment delivered by the Chief Justice. I would like to add a few comments.
Whilst holding that the fire started without the negligence of either party, the learned trial judge nevertheless held, by applying a principle akin to the “rescue” principle, that because the dirty condition of the house owned by the defendant in some way contributed to the occurrence of the fire, the plaintiffs were entitled to succeed in these nrt ions. On the hearing of the appeal it was accepted by counsel that the “rescue” principle was neither raised nor argued in the High Court. That principle cannot apply unless there has been negligence on the part of the tortfeasor. The principle is succinctly Nlutcd by Lord Denning MR in Videan v British Transport Commission [1963] 3 WLR
171 at 385, where he says:
” if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the
cause of it.”
likewise, in a number of cases of which Ogwo v Taylor [1987] 3 All ER 961 (to which the· Chief Justice has referred) is one, it has been held that where a person who by his negligent act had started the fire, and injuries were suffered by another person as a result of fighting the fire, and the person starting the fire should have foreseen that there was a real risk of injury inherent in the situation, there was a clear duty of care on the part of such person, and with no break in the chain of causation, he would be liable for such injurics as were suffered by the person fighting the fire.
It is clear therefore that in both rescue and fire-fighting cases there can be no liability unless there was negligence on the part of the person creating the situation of peril in the formcr case and on the part of the person starting the fire in the latter case.
On the uncontested facts in this case, the defendant could not, in my opinion, escape a finding of negligence on his part. The walls of the kitchen and the top and sides of the cooker and the floor of the kitchen were all covered with grease. As the plaintiff said in evidcnce, “the grease was so thick on the cooker it was like candle grease.” Three of the four rings on the gas cooker were not working as the jets were all stuffed with grease; on the remaining ring only some of the jets were in working order and the flame from those was unsatisfactory. All these facts were known to the defendant. He should clearly have foreeseen that it would be necessary for his sister to have boiling water available to her for the purpose of cleaning the walls before painting. In its then condition, the gas cooker was an extremely high fire hazard. He should therefore have had the geyser and the gas
cooker put into efficient working order before she commenced the work she was to do for him. He should also have informed her in advance of the condition of the kitchen so that she could bring with her the necessary materials and tools for carrying out the task she was to perform. The defendant did none of these things, and was clearly in breach of the duty he owed to her.
With regard to the finding of the learned trial judge that, when the plaintiffs arrivedon the premises they could see quite clearly that the floor was greasy, and that the failure of the defendant to warn them of the greasiness was therefore irrelevant, that is a finding which in my view is not sustainable. The cases decided by this court to which the Chief Justice has referred in his judgment establish that knowledge on the part of the plaintiff, whether imparted to her by the defendant or independently possessed by her, would not excuse the defendant unless she could, by virtue of such knowledge, efficiently carry out the work for which she was engaged without exposing herself to the risk of injury. Having regard to the condition of the floor and of the cooker in this case, in my view the plaintiff could not efficiently carry out the work she was doing for the defendant without exposing herself to the risk of injury.
It is now almost ten years since the occurrence of this accident. Prior to the hearing in the High Court the plaintiffs and their family had emigrated to Canada. It was necessary for them to return for the hearing in the High Court, and they also returned for the hearing in this court. I entirely agree with the Chief Justice that, in the circumstances of this case, and as the primary facts are not in dispute, the interests of justice require that the issues of liability should be determined by this court. That course obviates a further trial in the High Court and a possible further appeal in this court. I agree with the findings of the Chief Justice on the issues of negligence, contributory negligence and apportionment of degrees of fault … in the case of the plaintiff Sadie Phillips, and with his findings on the issue of negligence and contributory negligence in the case of Liam Phillips, and I would concur in the orders proposed by him.
Re Polemis and Furness, Withy & Co Ltd
Court of Appeal [1921] All ER Rep 40
BANKES LJ: .
In the present case the arbitrators have found as a fact that the falling of the plank was due to the negligence of the defendants’ servants. The fire appears to me to have been directly caused by the falling of the plank. In these circumstances I consider that it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated. The charterers’ junior counsel sought to draw a distinction between the anticipation of the extent of damage resulting from a negligent act, and the anticipation of the type of damage resulting from such an act. He admitted that it could not lie in the mouth of a person whose negligent act had caused damage to say that he could not reasonably have foreseen the extent of the damage, but he contended that the negligent person was entitled to rely upon the fact that he could not reasonably have anticipated the type of damage which resulted from his negligent act. I do not think that the distinction can be admitted. Given the breach of duty which constitutes the negligence, and given the damage as a direct result of that negligence, the anticipations of the person whose negligent act has produced the damage appear to me to be irrelevant. I consider that the damages claimed are not too remote.
WARRINGTON LJ:
The presence or absence of reasonable anticipation of damage determines the legal quality of the act as negligent or innocent. If it be thus determined to be negligent, then the question whether particular damages are recoverable depends only on the answer to the question whether they are the direct consequence of the act . . . In the present case it is clear that the act causing the plank to fall was in law a negligent act, because some damage to the ship might reasonably be anticipated. If this is so then the charterers are liable for the actual loss, that being on the findings of the arbitrators the direct result of
the falling board: see per Lord Sumner in Weld-Blundell v Stephens9 ([1920] AC at p. 983). On the whole, in my opinion, the appeal must be dismissed with costs.
SCRUTTON LJ:
To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage; if he would not, the act is not negligent. But if the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact caused sufficiently directly by the negligent act, and not by the operation of independent causes having no connection with the negligent act, except that they could not avoid its results. Once the act is negligent, the fact that its exact operation was not foreseen is immaterial . . . In the present case it was negligent in discharging cargo to knock down the planks of the temporary staging, for they might easily cause some damage either to workmen, or cargo, or the ship. The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapour which caused a fire, does not relieve the person who was negligent from the damage which his negligent act directly caused. For these reasons the experienced arbitrators and the judge appealed from came, in my opinion, to a correct decision, and the appeal must be dismissed with costs.
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd,
The Wagon Mound
Judicial Committee of the Privy Council [1961] 1 All ER 404
VISCOUNT SIMONDS:
It is inevitable that first consideration should be given to Re Polemis and
Furness, Withy & Co Ltd,1° which will henceforward be referred to as Polemis. For it was avowedly in deference to that decision and to decisions of the Court of Appeal that followed it that the full court was constrained to decide the present case in favour of the respondents . . .
There can be no doubt that the decision of the Court of Appeal in Polemis10 plainly asserts that, if the defendant is guilty of negligence, he is responsible for all the consequences, whether reasonably foreseeable or not. The generality of the proposition is, perhaps, qualified by the fact that each of the lords justices refers to the outbreak of fire as the direct result of the negligent act. There is thus introduced the conception that the negligent actor is not responsible for consequences which are not ‘direct’, whatever that may mean
… Enough has been said to show that the authority of Polemisl° has been severely shaken, though lip-service has from time to time been paid to
it. In their Lordships’ opinion, it should no longer be regarded as good law. It is not probable that many cases will for that reason have a different result, though it is hoped that the law will be thereby simplified, and that, in some cases at least, palpable injustice will be avoided. For it does not seem consonant with current ideas of justice or morality that, for an act of negligence, however slight or venial, which results in some trivial foreseeable damage, the actor should be liable for all consequences, however unforeseeable and however grave, so long as they can be said to be ‘direct’. It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour. This concept, applied to the slowly developing law of negligence, has led to a great variety of expressions which can, as it appears to their Lordships, be harmonised with little difficulty with
the single exception of the so-called rule in Polemis.10 For, if it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them), the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged, by the standard of the reasonable man, that he ought to have foreseen them. Thus it is that, over and over again, it has happened that, in different judgments in the same case and sometimes in a single judgment, liability for a consequence has been imposed on the ground that it was reasonably foreseeable, or alternatively on the ground that it was natural or necessary or probable. The two grounds have been treated as coterminous, and so they largely are. But, where they are not, the question
arises to which the wrong answer was given in Polemis.1° For, if some limitation must be imposed on the consequences for which the negligent actor is to be held responsible—and all are agreed that some limitation there must be—why should that test (reasonable foreseeability) be rejected which, since he is judged by what the reasonable man ought to foresee, corresponds with the common conscience of mankind, and a test (the ‘direct’ consequence) be substituted which leads to nowhere but the never ending and insoluble problems of causation. ‘The lawyer’ said Sir Frederick Pollock ‘cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause.’ Yet this is just what he has most
unfortunately done and must continue to do if the rule in Polemisl° is to
prevail. A conspicuous example occurs when the actor seeks to escape liability on the ground that the ‘chain of causation’ is broken by a ‘nova causa’ or `novus actus interveniens’.
The validity of a rule or principle can sometimes be tested by observing it
in operation. Let the rule in Polemisl° be tested in this way. In The Edison,11 the appellants, whose vessel had been fouled by the respondents, claimed damages under various heads. The respondents were admittedly at fault;
therefore, said the appellants, invoking the rule in Polemis,10 they were responsible for all damage whether reasonably foreseeable or not. Here was the opportunity to deny the rule or to place it secure on its pedestal. But the House of Lords took neither course; on the contrary, it distinguished
Polemisl° on the ground that, in that case, the injuries suffered were the `immediate physical consequences’ of the negligent act. It is not easy to understand why a distinction should be drawn between ‘immediate physical’ and other consequences, nor where the line is to be drawn. It was, perhaps,
this difficulty which led Denning LJ in Roe v Ministry of Health12 to say that foreseeability is only disregarded when the negligence is the immediate or precipitating cause of the damage. This new word may well have been thought as good a word as another for revealing or disguising the fact that he sought loyally to enforce an unworkable rule. In the same connexion may be mentioned the conclusion to which the full court finally came in the present
case. Applying the rule in Polemisl° and holding, therefore, that the unforeseeability of the damage by fire afforded no defence, they went on to consider the remaining question. Was it a ‘direct’ consequence? On this, Manning J said:
`Notwithstanding that, if regard is had separately to each individual occurrence in the chain of events that led to this fire, each occurrence was improbable and, in one sense, improbability was heaped upon improbability, I cannot escape from the conclusion that if the ordinary man in the street had been asked, as a matter of common sense, without any detailed analysis of the circumstances, to state the cause of the fire at Morts Dock, he would unhesitatingly have assigned such cause to spillage of oil by the appellants’ employees.’
Perhaps he would, and probably he would have added ‘I never should have thought it possible.’ But, with great respect to the full court, this is surely
irrelevant, or, if it is relevant, only serves to show that the Polemis rule1° works in a very strange way. After the event even a fool is wise. Yet it is not the hindsight of a fool, but it is the foresight of the reasonable man which
alone can determine responsibility. The Polemis rule,10 by substituting `direct’ for ‘reasonably foreseeable’ consequence, leads to a conclusion equally illogical and unjust.
At an early stage in this judgment, their Lordships intimated that they would deal with the proposition which can best be stated by reference to the
well-known dictum of Lord Sumner:13 ‘This, however, goes to culpability, not to compensation.’ It is with the greatest respect to that very learned judge and to those who have echoed his words that their Lordships find themselves bound to state their view that this proposition is fundamentally false.
It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. But there can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded. Just as (as it has been said) there is no such thing as negligence in the air, so there is no such thing as liability in the air. Suppose an action brought by A for damage caused by the carelessness (a neutral word) of B, for example a fire caused by the careless spillage of oil. It may, of course, become relevant to know what duty B owed to A, but the only liability that is in question is the liability for damage by fire. It is vain to isolate the liability from its context and to say that B is or is not liable, and then to ask for what damage he is liable. For his liability is in respect of that damage and no other. If, as admittedly it is, B’s liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened—the damage in suit? And, if that damage is unforeseeable so as to displace liability at large, how can the liability be restored so as to make compensation payable? But, it is said, a different position arises if B’s careless act has been shown to be negligent and has caused some foreseeable damage to A. Their Lordships have already observed that to hold B liable for consequences, however unforeseeable, of a careless act, if, but only if, he is at the same time liable for some other damage, however trivial, appears to be neither logical nor just. This becomes more clear if it is supposed that similar unforeseeable damage is suffered by A and C, but other foreseeable damage, for which B is liable, by A only. A
system of law which would hold B liable to A but not to C for the similar damage suffered by each of them could not easily be defended. Fortunately, the attempt is not necessary. For the same fallacy is at the root of the proposition. It is irrelevant to the question whether B is liable for unforeseeable damage that he is liable for foreseeable damage, as irrelevant as would the fact that he had trespassed on Whiteacre be to the question whether he had trespassed on Blackacre. Again, suppose a claim by A for damage by fire by the careless act of B. Of what relevance is it to that claim that he has another claim arising out of the same careless act? It would surely not prejudice his claim if that other claim failed; it cannot assist it if it succeeds. Each of them rests on its own bottom and will fail if it can be established that the damage could not reasonably be foreseen. We have come back to the plain common sense stated by Lord Russell of Killowen in Hay
(or Bourhill) v Young.As Denning LJ said in King v Phillips15 . . there
can be no doubt since Hay (or Bourhill) v Young14 that the test of liability for shock is foreseeability of injury by shock. Their Lordships substitute the word
`fire’ for ‘shock’ and indorse this statement of the law.16
Their Lordships conclude this part of the case with some general observations. They have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is ‘direct’. In doing so, they have inevitably insisted that the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen. This accords with the general view thus stated by Lord Atkin in M’Alister (or
Donoghue) v Stevenson:
`The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa,” is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.’
It is a departure from this sovereign principle if liability is made to depend solely on the damage being the ‘direct’ or ‘natural’ consequence of the precedent act. Who knows or can be assumed to know all the processes of nature? But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was ‘direct’ or ‘natural’, equally it would be wrong that he should escape liability, however ‘indirect’ the damage, if he foresaw or could reasonably foresee the intervening events
which led to its being done; cf. Woods v Duncan.18 Thus foreseeability becomes the effective test. In reasserting this principle, their Lordships
conceive that they do not depart from, but follow and develop, the law of negligence as laid down by Alderson B, in Blyth v Birmingham Waterworks
Co.19
It is proper to add that their Lordships have not found it necessary to consider the so-called rule of ‘strict liability’ exemplified in Rylands v
Fletcher2° and the cases that have followed or distinguished it. Nothing that they have said is intended to reflect on that rule
Smith v Leech Brain & Co Ltd
Queen’s Bench Division [1961] 3 All ER 1159
LORD PARKER CJ: . . .
I am confronted with the recent decision of the Privy Council in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd. For convenience, that case is always referred to as The Wagon Mound. But for The Wagon
Mound,21 it seems to me perfectly clear that, assuming negligence proved, assuming that the burn caused in whole or in part the cancer and the death, this plaintiff would be entitled to recover. It is said on the one side by counsel for the defendants, that, although I am not strictly bound by The Wagon
Mound21 since it is a Privy Council case, I should treat myself as free, using the arguments to be derived from that case, to say that other cases in the Court of Appeal have been wrongly decided, and, particularly, that Re
Polemis and Furness, Withy & Co Ltd 22 was wrongly decided, and that a further ground for taking that course is to be found in the various criticisms that have from time to time in the past been made by members of the House
of Lords in regard to Re Polemis.22 On the other hand, it is said by counsel
for the plaintiff that I should hold that Re Polemis22 was rightly decided and, secondly, that, even if that is not so, I must treat myself as completely bound by it. Thirdly, he said that in any event, whatever the true view is in regard to
Re Polemis,22 The Wagon Mound21 has no relevance at all to this case.
For my part, I am quite satisfied that the Judicial Committee in The Wagon
Mound21 did not have what I may call, loosely, the ‘thin skull’ cases in mind. It has always been the law of this country that a tortfeasor takes his victim as
he finds him. It is unnecessary to do more than refer to the short passage in the decision of Kennedy J in Dulieu v White & Sons,23 where he said:
`If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.’
To the same effect is a passage in The Arpad.24 But quite apart from those two references, as is well-known, the work of the courts for years and years has gone on on that basis. There is not a day that goes by where some trial judge does not adopt that principle, that the tortfeasor takes his victim as he finds him. If the Judicial Committee had any intention of making an inroad into that doctrine, I am quite satisfied that they would have said so.
It is true that, if one takes the wording in the advice given by Viscount
Simonds in The Wagon Mound 21 and applies it strictly to such a case as this, it could be said that they were dealing with this point. But, as I have said, it is, to my mind, quite impossible to conceive that they were, and, indeed, it has been pointed out that they disclose the distinction between such a case as this and the one which they were considering, when they comment on Smith v
London & South Western Rly Co.25 Lord Simonds, in dealing with that case in The Wagon Mound21 said this:
`Three things may be noted about this case: the first, that, for the sweeping proposition laid down, no authority was cited; the second, that the point to which the court directed its mind was not unforeseeable damage of a different kind from that which was foreseen, but more extensive damage of the same kind . .
In other words, Lord Simonds is clearly there drawing a distinction between the question whether a man could reasonably anticipate a type of injury, and the question whether a man could reasonably anticipate the extent of injury of the type which could be foreseen. The Judicial Committee were, I think,
disagreeing with the decision in Re Polemis22 that a man is no longer liable for the type of damage which he could not reasonably anticipate. The Judicial Committee were not, I think, saying that a man is only liable for the extent of damage which he could anticipate, always assuming the type of injury could have been anticipated. The view is really supported by the way in which cases of this sort have been dealt with in Scotland. Scotland has never, as far
as I know, adopted the principle laid down in Re Polemis,22 and yet I am quite satisfied that they have throughout proceeded on the basis that the tortfeasor takes the victim as he finds him.
In those circumstances, it seems to me that this is plainly a case which comes within the old principle. The test is not whether these defendants could reasonably have foreseen that a burn would cause cancer and that Mr Smith would die. The question is whether these defendants could reasonably foresee the type of injury which he suffered, namely, the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends on the characteristics and constitution of the victim. Accordingly, I find that the damages which the plaintiff claims are damages for which these defendants are liable. Before leaving that part of the case, I should say, in case the matter goes further, that I would follow, sitting as a trial judge, the
decision in The Wagon Mound;21 or rather, more accurately, I would treat myself, in the light of the arguments in that case, able to follow other
decisions of the Court of Appeal, prior to Re Polemis,22 rather than Re
Polemis22 itself. As I have said, Re Polemis22 has been criticised by individual members of the House of Lords, although followed by the Court of
Appeal in Thurogood v Van Den Berghs and Jurgens Ltd.26 I should treat myself as at liberty to do that, and, for my part, I would do so the more readily, because I think that it is important that the common law, and the development of the common law, should be homogeneous in the various sections of the Commonwealth. It would be lamentable if a court sitting here had to say that, while the common law in the Commonwealth and Scotland has been developed in a particular way, yet we in this country, and sitting in these courts, are going to proceed in a different way. However, as I have said, that does not strictly arise in this case.
Hughes v Lord Advocate
House of Lords [1963] 1 All ER 705
LORD REID: . . .
My Lords, I have had an opportunity of reading the speech which my noble and learned friend Lord Guest is about to deliver. I agree with him that this appeal should be allowed and I shall only add some general observations. I am satisfied that the Post Office workmen were in fault in leaving this open manhole unattended and it is clear that if they had done as they ought to have done this accident would not have happened. It cannot be said that they owed no duty to the appellant. But it has been held that the appellant cannot recover damages.
It was argued that the appellant cannot recover because the damage which he suffered was of a kind which was not foreseeable. That was not the ground of judgment of the First Division or of the Lord Ordinary and the facts proved do not, in my judgment, support this argument. The appellant’s injuries were mainly caused by burns, and it cannot be said that injuries from burns were unforeseeable. As a warning to traffic the workmen had set lighted red lamps around the tent which covered the manhole, and if boys did enter the dark tent it was very likely that they would take one of these lamps with them. If the lamp fell and broke it was not at all unlikely that the boy would be burned and the burns might well be serious. No doubt it was not to
be expected that the injuries would be as serious as those which the appellant in fact sustained. But a defender is liable, although the damage may be a good deal greater in extent than was foreseeable. He can only escape liability if the damage can be regarded as differing in kind from what was foreseeable.
So we have (first) a duty owed by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The ground on which this case has been decided against the appellant is that the accident was of an unforeseeable type. Of course the pursuer has to prove that the defender’s fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way. The explanation of the accident which has been accepted, and which I would not seek to question, is that, when the lamp fell down the manhole and was broken, some paraffin escaped, and enough was vaporized to create an explosive mixture which was detonated by the naked light of the lamp. The experts agree that no one would have expected that to happen: it was so unlikely as to be unforeseeable. The explosion caused the boy to fall into the manhole: whether his injuries were directly caused by the explosion or aggravated by fire which started in the manhole is not at all clear . . .
. . . This accident was caused by a known source of danger, but caused in a way which could not have been foreseen, and in my judgment that affords no defence. I would therefore allow the appeal.
LORD JENKINS:
It is true that the duty of care expected in cases of this sort is confined to reasonably foreseeable dangers, but it does not necessarily follow that liability is escaped because the danger actually materialising is not identical with the danger reasonably foreseen and guarded against. Each case must depend on its own particular facts. For example . . . in the present case the paraffin did the mischief by exploding, not burning, and it is said that, while a paraffin fire (caused, e.g. by the upsetting of the lighted lamp or otherwise allowing its contents to leak out) was a reasonably foreseeable risk so soon as the pursuer got access to the lamp, an explosion was not. To my mind the
distinction drawn between burning and explosion is too fine to warrant acceptance . . .
LORD GUEST: . . .
In dismissing the appellant’s claim the Lord Ordinary and the majority of the judges of the First Division reached the conclusion that the accident which happened was not reasonably foreseeable. In order to establish a coherent chain of causation it is not necessary that the precise details leading up to the accident should have been reasonably foreseeable: it is sufficient if the accident which occurred is of a type which should have been foreseeable by a reasonably careful person (Miller v South of Scotland Electricity Board per
Lord Keith of Avonholm;27 Harvey v Singer Manufacturing Co Ltd per Lord
Patrick28); or as Lord Mackintosh,29 expressed it in Harvey’s case the precise concatenation of circumstances need not be envisaged. Concentration has been placed in the courts below on the explosion which it was said could not have been foreseen because it was caused in a unique fashion by the paraffin forming into vapour and being ignited by the naked flame of the wick. But this, in my opinion, is to concentrate on what is really a non-essential element in the dangerous situation created by the allurement. The test might better be put thus: Was the igniting of paraffin outside the lamp by the flame a foreseeable consequence of the breach of duty? In the circumstances there was a combination of potentially dangerous circumstances against which the Post Office had to protect the appellant. If these formed an allurement to children it might have been foreseen that they would play with the lamp, that it might tip over, that it might be broken, and that when broken the paraffin might spill and be ignited by the flame. All these steps in the chain of causation seem to have been accepted by all the judges in the courts below as foreseeable. But because the explosion was the agent which caused the burning and was unforeseeable, therefore the accident, according to them, was not reasonably foreseeable. In my opinion this reasoning is fallacious. An explosion is only one way in which burning can be caused. Burning can also be caused by the contact between liquid paraffin and a naked flame. In the one case paraffin vapour and in the other case liquid paraffin is ignited by fire. I cannot see that these are two different types of accident. They are both burning accidents and in both cases the injuries would be burning injuries. On this view the explosion was an immaterial event in the chain of causation. It was simply one way in which
burning might be caused by the potentially dangerous paraffin lamp . . .
I have therefore reached the conclusion that the accident which occurred and which caused burning injuries to the appellant was one which ought reasonably to have been foreseen by the Post Office employees and that they were at fault in failing to provide a protection against the appellant entering the shelter and going down the manhole.
I would allow the appeal.
Gaffey v Dundalk Town Council
[2006] I.E.H.C. 436
Judgment of Mr Justice Michael Peart delivered on the 5th day of December 2006:
On the 23rd April 2004 when this young plaintiff was nine years of age, he was playing football with his slightly older sister on a grassed open space close to where he lives in Cooley Park, Dundalk, which is a small housing estate. While doing so he injured himself when accidentally he fell into a fire hydrant which is located on this grassed area, and he sustained a bad cut to his right shin, and an avulsion fracture to his left ankle.
The hydrant is situated 2.6 metres from the gable end of the adjacent house, and 5.7 metres from the front building line of the houses. The lid is easily lifted since it is not of a design which permits it to be looked in place, and it is not heavy. This lid, and therefore also the hole measures 445mm x 280mm (1’5 x 11”), and the space below the lid where the water connections are, and into which the plaintiff fell is 690mm (2’3”) deep. It could be described as being in the middle of the grassy area where they were playing. He had played on this area before this incident. How often is not clear. The plaintiff says that he had played there only a few times before the accident. I think that it is more probable that it was much more than a few times and that this was an area where he and others regularly played. There is no need to be specific as to how many times,
Prior to these children going out to play, someone in the area had obviously lifted the cast iron lid of the fire hydrant, leaving it on the grass, and exposing the hole.
Without realising that this hazard was present the plaintiff’s left leg went down the opening followed by his right leg. His left leg received a nasty gash requiring eleven stitches. Though it was not realised until some days later, he sustained a fracture to his right ankle.
His father arrived shortly thereafter and lifted him out and brought him to hospital. The plaintiff was very distressed at that time.
The plaintiff’s father has given evidence that children frequently play on this area, and also that this lid is frequently removed and left on the grass. He was aware of this happening before the plaintiff was injured and if he saw the lid off as he passed the green area he was in the habit of replacing it. Since this accident he notices it more often and replaces it. He says that he had never warned his children to watch out for the lid being off the hydrant when they were playing. Neither has he, nor any other person has ever told the defendant Council about the fact that persons unknown are removing the lid leaving the hole exposed in the grass.
It is not clear who lifts the lid or why, but the Court can, I think, presume that it is people in the estate of houses and not anyone from the defendant’s fire department. On the occasion on which the plaintiff’s engineer photographed the hole for this case, there was debris at the bottom in the form of a plastic Coca Cola bottle, some paper debris or maybe a beer can, and cigarette butts.
The Court has been told by Martin O’Neill, an Assistant Engineer with the defendant Town Council that it is responsible for cutting this grassed area and does so about every two weeks. The plaintiff has said that when the grass is long the hydrant cannot be seen as easily as when the grass is cut. I have no evidence as to whether on the date of this accident it had been recently cut. One way or another Mr O’Neill has stated that before this accident nobody had brought to the Council’s attention any recurring problem about this lid being removed from the hydrant. He believes that the hydrant is visible to anyone playing on the grass, and that the grass would have to be very long before it would not be visible.
The plaintiff’s engineer, Robert Burke inspected the hydrant for the purposes of his report, and I have already set out the dimensions of the hydrant as given by him. He has stated in his evidence that the lid of the hydrant is removable, and that it has to be, so that the hydrant can be accessed quickly by the fire services should the need arise. For that reason also these lids are not locked in place. He also stated that the lids on hydrants are no longer of the hinged kind where, when opened, the lid remains attached to the structure. This was in the interests of ease of access by the fire services.
But Mr Burke feels that the hydrant would be better placed off the grassy play area and located on the road which runs along the margin of the grassed area. There is no pavement at that point, although there is a narrow pavement at the gable wall of the house itself. The hydrant could not be placed on that pavement because it would be closer to the house than the regulations permit apparently. But he thinks that it would be better placed on the road, away from where the children play, and that there would be no particular difficulty in doing so.
In cross-examination, Kevin Segrave BL suggested that placing the hydrant on the road could not be a sensible suggestion since access to it in any emergency might be compromised by cars being parked on it.
The Court heard evidence also from Mr Pat Kelly, the Station Officer in the Fire Department of the Council. He has thirty eight years experience in that department. He regards the location of the fire hydrant on the grass as being ideal for his purposes. It is easily accessed and is unlikely to be obstructed by vehicles, and it is easy for the fire services to reach. He stated also that these hydrants are rarely constructed using a larger plinth. He also stated that if it was to be located on the road, it could be blocked by cars, and, in addition, it was his experience that when on a road these hydrants can become filled with mud and other debris from the road. These lids are of a lightweight design, and the constant passing of cars over the lid could deform it so that it is not easily removed in any emergency. In such emergencies time can be critical.
Mr Kelly stated that in the area of responsibility of the Council there were about 2500 hydrants around the town.
Liability of the defendant:
It is certainly not clear that the defendant Town Council can be found to have been negligent. Clearly the mere fact that the plaintiff sustained an injury when he accidentally fell into a hydrant the lid of which had been removed does not mean that the Council caused this to happen, and should be held liable in negligence to pay compensation to the plaintiff. Negligence must be established.
There are 2500 hydrants under the control of the Town Council. Nobody told the Council about this lid being often removed and left on the grass, thereby exposing the hole. I am satisfied from the evidence of the plaintiff’s engineer and the Council’s engineer Mr O’Neill that there is nothing inherently dangerous about either the design of the hydrant or its location. Indeed it would appear that in the present case it is appropriately located in the interests of the houses which it may have to serve in an emergency. It cannot be against the gable end of the adjacent house because by regulation it must be a certain distance away from the wall of a house. Neither can it be located on the road itself since it might be obstructed by a car, and rendered inaccessible.
The best that Mr Burke for the plaintiff will say is that the hydrant might be better located on the road surface. But I am satisfied from Mr O’Neill’s evidence and that of the fire officer, Mr Kelly that there are good reasons why it should not be located on the road, particularly since this grassed area was available for it to be located there. The plaintiff suggests that when the grass is long this hydrant is not clearly visible. But the evidence is that the grass is cut each fortnight, and it is submitted by Mr Segrave that in April such a frequency of cutting is reasonable and sufficient.
Given the large number of hydrants in the town, can it be the case that where some unknown people lift off the cover of one of these, and the Council is not even told about it happening, that the Town Council should be liable to compensate a person who falls into it? The only evidence from which negligence might be established is the assertion by Mr Burke that it would be preferable that the hydrant be located off the grassed area. He makes no complaint about the design of the hydrant, and in particular the lid which can be lifted off. In fact he has stated that it must be capable of being lifted off. There is no evidence that the design of the hydrant makes it in any way an inherent danger to which the plaintiff ought not to have been exposed. If it is suggested that the Council ought, as owner of the hydrant, to have ensured that this hydrant was never left with its lid off, then the evidence that there are some 2500 such hydrants in the town is relevant to the question of whether it would be just and reasonable that a duty of such scope be imposed under the law on the Council. It is also the fact, as already stated, that nobody made the Council aware of this recurring problem.
Patricia Moran SC for the plaintiff submits that in deciding to place the hydrant on this area of grass, the defendant ought to have known that this was an area in which children would be inclined to play, and that it represents a hidden trap to such children. There is no evidence from which the Court could conclude that the hydrant itself in its closed condition constitutes such a trap. The plaintiff in my view would have to go a step further and satisfy the Court that the Council ought to have foreseen that persons would from time to time remove the lid, thereby exposing the hole into which the children playing on the grass might fall. In my view that eventuality is not one reasonably foreseeable, and against which it should have taken precautions by way of notice or otherwise. Clearly it is the intervening act of some third party which has rendered an otherwise safe situation into a hazardous one.
A decision on the scope of the duty of care to be imposed on the Council in this regard requires a consideration of the judgment of Keane CJ in Glencar Exploration Co. Ltd v. Mayo County Council [2002] IR. …… in which the question of the scope of the duty of care owed by a public body such as the defendant Town Council was discussed, and there was restatement of the tests to be applied.
The Chief Justice referred as follows to the now notorious case of Donoghue v. Stephenson which needs no introduction to lawyers:
“The starting point is obviously the famous passage in the speech of Lord Atkin in Donoghue v. Stephenson [1932] AC 562 which, however often quoted, must be set out here again, but including an introductory passage, which is of critical importance, and is frequently omitted:
‘At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of ‘culpa’ is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which were called in question.’ “
This passage serves the useful purpose in the present case of stating elegantly what I have already alluded to, namely that simply because a person has received an injury does not mean automatically that some other person must pay compensation to the injured party.
The learned Chief Justice then referred to the so-called two stage test enunciated by Lord Wilberforce in Anns v. Merton Borough Council as being:
“First, one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage, there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. . . .
Thus both proximity and foreseeability were required, followed by consideration of whether there was anything which ought to negative, reduce or limit the scope of the duty. The Chief Justice, having identified some criticisms of this test, went on to refer to a different approach. He stated:
“Ultimately, in Caparo Industries Plc. v. Dickman [1990] 2 AC 605, a different approach was adopted, epitomised in a passage in the judgment of Brennan J in the High Court of Australia in Sutherland Shire Council v. Heyman (1985) 60 ALR 1:
‘It is preferable in my view that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by undefinable considerations which ought to negative, or to reduce or limit the scope of the duty, and the class of person to whom it should be owed.’
In Caparo, Lord Bridge summed up the approach in England as follows:
‘What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there exists between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of proximity’ or ‘neighbourhood’ and the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.’
The Chief Justice then reviewed the law in Ireland and in particular as it appeared from Ward v. McMaster. He referred to a passage from the judgment of Costello J. (as he then was) in the High Court as follows:
“When deciding whether a local authority exercising statutory functions is under a common law duty of care the court must firstly ascertain whether a relationship of proximity existed between the parties such that in the reasonable contemplation of the authority carelessness on their part might cause loss. But all the circumstances of the case must in addition be considered, including the statutory provisions under which the authority is acting. Of particular significance in this connection is the purpose for which the statutory powers were conferred and whether or not the plaintiff is in the class of persons which the statute was designed to assist.
It is material in all cases for the court in reaching its decision on the existence and scope of the alleged duty to consider whether it is just and reasonable that a common law duty of care as alleged should in all the circumstances exist.” (my emphasis)
Of importance is the fact that the Chief Justice also referred to the judgment of McCarthy J. in the Supreme Court wherein the latter stated:
“Whilst Costello J essentially rested his conclusion on the ‘fair and reasonable’ test, I prefer to express the duty as arising from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption based upon public policy. I do not, in any fashion, seek to exclude the latter consideration, although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the expense of the person or body that injured him.”
The Chief Justice went on to state that while this statement by McCarthy J. had been seen as an endorsement of the two stage test of Lord Wilberforce, it was not necessarily so, and he went on to state that what McCarthy J. had stated was ‘obiter’ and concluded:
“Given the far reaching implications of adopting in this jurisdiction a principle of liability in negligence from which there has been such powerful dissent in other common law jurisdictions, I would not be prepared to hold that further consideration of the underlying principles is foreclosed by the dicta of McCarthy J in Ward v. McMaster.”
He concluded his examination of the duty of care on a local authority by stating:
There is, in my view, no reason why courts determining whether a duty of care arises, should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of ‘proximity’ or ‘neighbourhood’ can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff, as held by Costello J at first instance in Ward v. McMaster, by Brennan J in Sutherland Shire Council v. Heyman and by the House of Lords in Caparo Industries plc. v. Dickman. As Brennan J pointed out, there is a significant risk that any other approach will result in what he called a ‘massive extension of a prima facie duty of care restrained only by undefinable considerations…’
This therefore is the test by which the present case should be considered. There is no difficulty in concluding that a relationship of proximity exists between the defendant and a person such as the plaintiff who resides in the estate on which this hydrant is situated. As for forseeability the question is whether it was in the reasonable contemplation of the defendant that placing the hydrant on this grassed area might cause injury to the plaintiff, given the probability that children would play there. One could say with confidence, I think, that the defendant should reasonably foresee that if the hydrant was badly designed or poorly constructed so that it presented a hazard, such children could sustain an injury. I am of the view however that the prospect that mischievous people would lift off the lid and leave it off and that a child such as the plaintiff would fall into the hydrant as a result, is too remote a prospect to be foreseeable. It requires an intervening act.
But even if I am wrong about that, and it was indeed foreseeable, then, under the two stage test in Anns, or as stated by McCarthy J. in Ward v. McMaster, then the plaintiff ought to recover, since there might not exist such a compelling public policy consideration as should deny the plaintiff recovery of compensation.
But under the Glencar test, even if I am wrong in relation to foreseeability, and both ‘proximity’ and ‘foreseeability’ are met, the Court must consider “whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff”.
In this respect, the evidence that there are 2500 such hydrants in the town is important, as is the uncontested fact that neither the plaintiff’s father, nor anybody else had never notified the Council of the fact that the lid of this hydrant was being removed thereby causing a danger to children playing on the grassed area.
It would also be relevant to consider the nature and purpose of the statutory power being exercised by the local authority in placing the hydrant where it is located. In the present case the Council are clearly obliged to place hydrants sufficiently close to houses in the area so that the fire services can be effective in an emergency. Such a duty is an important one, given the capacity for a fire to cause loss of life and serious injury. The design of the lid facilitates the easy access to the water supply in such an emergency. That would need to be balanced against the risk of possible injury by placing the hydrant on this grassed area.
It cannot be reasonable for the Council to have imposed upon it a duty to ensure that the lids are at all times in place on hydrants in the town – the more so in the absence of any information being given to them that lids are being removed. The Council has in place a system of inspection of hydrants on a routine basis to ensure that they are in working order, but it is quite unreal to expect that they could inspect all these installations on a daily basis. As I have stated there is no evidence that the hydrants are inherently dangerous or dangerously located. It requires the mischievous act of an intervening party to create the hazard.
In Whooley v. Dublin Corporation [1960] IR 60, the facts were somewhat similar to the present case. According to the head note of the report of that case, the plaintiff sustained personal injuries through putting her foot into an open fire hydrant box while walking at night along the footpath of a Dublin street. The lid of the hydrant box, which had apparently been removed by some mischievous person, was found on the footpath a short distance from the scene of the accident. The hydrant box was a type no longer being installed, the lid of which could be partially raised by the insertion of a stick in a slot on top of the lid. The type of hydrant in then current use by the defendant local authority had a lid which was heavier, though smaller in diameter, and was designed to be opened by a simple type of key. Both types of hydrant box were so designed as to be easily accessible to the Dublin Corporation fire brigades in case of fire and both types of lid were, consequently, capable of being removed without very great difficulty by mischievous persons. There was evidence that there were instances in which both types of lid were, to the defendants’ knowledge, removed from time to time, but there was no evidence that the older type of lid was removed with an appreciably greater relative frequency than the newer type, or that it was of a type normally easily removed by children.
It was held in the High Court, on appeal from the Circuit Court, that the plaintiff was not entitled to recover damages for negligence against the defendants, since there was no evidence to show that the hydrant box, though old-fashioned, was of a type either intrinsically likely to be interfered with by young irresponsible children or less easily safeguarded than a more modern type against unauthorised interference by mischievous youths and adults. In so deciding, McLoughlin J. stated:
“It is not contended that the Corporation are not under a duty to maintain these hydrants on the footway and that they must be readily accessible for use by the Corporation fire brigade in case of fire, but reliance is placed by the plaintiff on the evidence of an engineer called on her behalf who stated that the type of hydrant and box in this case was thirty to forty years old, that the lid could be removed by a child inserting a stick or some instrument into a slot provided along one side of the lid for that purpose, and that a more modern type has a heavier, though smaller, lid without a slot but with a hole in the centre for the insertion of a simple type of key. He did not, however, suggest that this more modern type of lid was designed to make, or would make, interference by mischievous persons more difficult.
There was evidence also by a lady that some days previous to the accident water was spurting from a hydrant without a lid in Oxford Road which, I am inclined to believe, was this same hydrant.
For the defendant Corporation there was evidence that for paving purposes the hydrants in Oxford Road, including this particular one, were in use during that period, 21st October to 4th November, after which they were inspected and were left in proper and safe condition. There was also evidence of a turncock who was notified of the accident on the same night, shortly after its happening, and inspected this hydrant box and found nothing wrong with it. How the lid came to be replaced is not known.
Having carefully considered all the circumstances and the authorities quoted to me by counsel I cannot find that the Corporation through its officials maintained this hydrant box in a negligent way so as to cause the plaintiff’s injuries. There is, in my view, no reason for holding that this type of hydrant box is of the kind that is likely to be interfered with by young irresponsible children to the knowledge of the Corporation’s officials or that any such knowledge should be imputed to them. It is my opinion that this hydrant was interfered with by some mischievous person and that no other type of hydrant which could be devised, consistent with its necessary purpose, would be safe from such malicious interference.”
I see no meaningful distinction between that case and the present case, and come to a similar conclusion.
Mc Mahon and Binchy in their work ‘The Law of Torts’ cite a case of Kavanagh v. Cork Corporation [DPIJ: Hilary and Easter Terms 1994, p. 78 at p. 80 (HC)] which involved similar facts. I have been unable in the time available to me on circuit to locate a copy of the judgment itself, but the learned authors note that in that case Keane J. (as he then was) stated that
“a fire hydrant, of its nature, has to be readily and quickly accessible to the fire brigade, or anyone else who has to make use of it rapidly in order to deal with an emergency. That is the whole point of it and, consequently , to have them locked in any way would obviously be more dangerous than the dangers caused by the sort of vandalism apparently common in parts of the city…”.
I am satisfied that the hydrant in the present case is designed in a way which facilitates, as it must, easy access to emergency services. It is located in a position which is in conformity with the regulations as to distance from any house, and that for the reasons given in evidence, it could not reasonably and safely placed on the road itself. I am also satisfied that it would not be reasonable to expect that the defendant should itself anticipate and guard against the possibility that the lid would be regularly removed from the hydrant and left on the adjoining grass, thereby exposing playing children to a hazard, even if the fact that children might play there is something which would happen. If the defendant had been notified that the lid was being removed and left off the hydrant, then the Court would have to consider how that might alter the situation, but in the present case it does not arise on the facts.
The plaintiff has failed to establish a breach of the duty of care on the defendant’s part, and with regret the claim must be dismissed.
Djadenko v Dunnes Stores
[2017] IEHC 11, Barr J
JUDGMENT of Mr. Justice Barr delivered on the 18th day of January, 2017
Introduction
1. This action arises out of an accident which occurred on 21st June, 2011. At the time, the plaintiff was working as an assistant chef with the defendant company at its shop premises situated at Ongar Village, Clonee, Dublin 15. It is alleged that on the evening in question, the plaintiff had removed a glass panel from the rear of the hot deli display counter. Having washed the pane of glass, she was holding it in both hands and was about to replace it onto the counter, when suddenly the glass slipped out of the rubber surround and began to fall to the ground. The plaintiff attempted to catch the glass in her left hand and in so doing suffered a jerking injury to her left shoulder the glass fell onto the plaintiff’s ankle, causing a partial tear of the medial ligament in her ankle joint. It is alleged that as a result of this incident, the plaintiff was caused to suffer soft tissue injury to her left shoulder and, left ankle. She also developed psychiatric symptoms.
2. Initially, the defendant entered a full defence to the action, which included a plea of contributory negligence against the plaintiff. This stance on liability was continued until the morning of the hearing of the action, at which stage counsel for the defendant, Mr. Leonard, S.C., informed the plaintiff’s counsel that while he was not formally conceding liability, the defendant would not be cross examining the plaintiff, or her engineer on any liability issues.
3. Prior to the hearing of the action, special damages were agreed between the parties in the sum of €5,246.
The liability evidence and conclusions thereon
4. The plaintiff stated that at approximately 18:00hrs on 21st June, 2011, she had lifted the glass panels from the rear of the hot deli counter, for the purpose of cleaning them. She had removed one of the panes of glass and had washed it. She then lifted the frame for the purpose of putting it back onto the counter. However, the glass panel fell out of the rubber frame in which it had been held and fell towards the floor. The plaintiff stated that she tried to catch the glass, but she was unable to prevent it falling onto her foot. She suffered a strain injury to her left shoulder in attempting to catch the falling pane of glass.
5. The pane of glass fell onto her left ankle and foot. It did not break. A colleague came to her assistance and lifted the pane of glass from her foot.
6. The plaintiff stated that the pane of glass simply slipped out of the rubber frame in which it had been housed.
7. Evidence was given by Mr. Patrick Hayes, consultant engineer, on behalf of the plaintiff. He had prepared a booklet of photographs showing the hot deli counter at the time of his inspection. In particular, he referred to photograph No. 4 which showed that the glass was housed in an aluminium frame. He stated that this was different to the situation which had pertained at the time of the accident, when the glass was housed in a rubber surround. There were two panes of glass and it was designed in such a way that one pane of glass could slide across the other pane of glass, so as to allow staff gain access to the trays of food in the deli counter.
8. Mr. Hayes pointed out that in photographs Nos. 12 – 14, it was possible to see the residue of the rubber channelling in which the glass had originally been housed. It was his opinion that at the time of the accident, the rubber surround on the glass had degraded to such an extent, that the glass was able to slip out in the manner described by the plaintiff.
9. Mr. Hayes pointed out that there were a number of relevant documents included in the documents which had been discovered by the defendant in advance of the hearing. In particular, there was a receipt from Martin Food Equipment dated 24th February, 2011. This indicated that work had been undertaken at the defendant’s shop where the plaintiff worked and had been carried out on a Bailey & Townley Hot Deli, the piece of equipment which the plaintiff was working on at the time of the accident. That receipt noted: “needs sliding glides for glass doors”. Mr. Hayes believed that this referred to the rubber glides in which the glass doors sat.
10. A further receipt from Martin Food Equipment dated 22nd April, 2011, had also been discovered. There was text under the engineer’s report in that receipt, however, same was illegible.
11. A service call history for Bailey & Townley Hot Deli serial 108344, had also been discovered. This document had two entries, the first of which referred to two heat blubs not working. The second entry dated 21st April, 2011, stated: “Hot deli cabinet – doors falling out of door runners. Staff member cut her hand on door last night as a result.” That entry went on to state:- “Resolution: parts not available – recommended [incomplete text]”.
12. Finally, discovery had been made of an email dated 28th April, 2011, from Mr. David Hughes of Martin Food Equipment to Mr. Padraig Kearney of Dunnes Stores. That email stated:-
“Our engineer was on site in Clonsilla as requested to look at the Bailey and Townley Hot Deli cabinet – reported that doors falling into the cabinet on top of food and that one staff member had cut herself on the door runners.
Unfortunately we are unable to get the parts for the Bailey and Townley apart from blubs…Our only available option that we could offer is to recommend changing this machine both because of the condition of the unit and also because it injured a member of staff. I believe we recommended this after a previous visit to site.”
13. Mr. Hayes stated that the conclusion in their initial report, that the probable cause of the accident was degradation of the rubber runners on which the glass vision plates were mounted in the aluminium frame; was supported by the documents which had been discovered by the defendant. These documents indicated that the defendants were aware of the degradation of the “sliding glides” in February 2011. The documentation also indicated that the glass fell out of the door runners causing an injury to a member of staff in April 2011. As such, the defendant, was fully aware of the defective nature of the doors on the hot deli cabinet, prior to the date of the plaintiff’s accident in June 2011.
14. Mr. Hayes further pointed out that the accident report form completed following the plaintiff’s accident, indicated that glass fell out of position onto the plaintiff’s foot at the time of the accident. The defendant’s accident reporting and investigation procedure, as specified in the defendant’s Safety Statement which had been discovered, stated that as part of their response to an incident, the area where an incident occurred, would be made safe. Mr. Hayes stated that it was clear from the documents which had come to hand, that a member of the defendant’s staff had had an incident and suffered injury at least two months prior to the plaintiff’s accident. For the plaintiff’s accident to occur in the manner as described and as detailed in the accident report form, the defendant did not comply with its own Safety Statement or with their statutory duty and did not make the equiptment safe.
15. In addition, Mr. Hayes stated that it was clear that the defendants did not comply with the recommendations of the maintenance engineer to make the equiptment safe. Had the defendants complied with their own Safety Statement and their statutory duty by providing safe working equipment, the plaintiff’s accident could have been avoided.
16. Mr. Hayes stated that in the circumstances outlined, it was his opinion that the defendant had acted in breach of s. 8(2) of the Safety, Health and Welfare at Work Act 2005, and in breach of Regulation 31 of the General Application Regulations 2007, which placed a duty on the employer to maintain plant and equipment in a safe condition. In the circumstances of this case, the equipment had been faulty and there had been two accidents, one of which had been approximately two months before the plaintiff’s accident and nothing had been done to render the equipment safe. In these circumstances, he was of opinion that there was a clear breach of statutory duty by the defendant.
17. Finally, Mr. Hayes stated that there did not appear to be any evidence of contributory negligence on the part of the plaintiff in relation to the circumstances of the accident.
18. This witness was not cross examined.
19. Having regard to the evidence of the plaintiff and to the evidence of Mr. Hayes, I am satisfied that the rubber surround on the glass had become degraded over time. I am satisfied, having regard to the documentation which has been produced on discovery, that the defendant knew of this problem in advance of the plaintiff’s accident. In particular, there had been a previous similar accident where a person had been injured in April 2011. In these circumstances, there was a clear duty at common law and under statute on the employer to ensure that the plant and equipment was rendered safe. They failed to do this. In the circumstances, I am satisfied that liability for this accident must rest with the defendant.
The Plaintiff’s Evidence in Relation to her Injuries
20. The plaintiff stated that when the pane of glass fell onto her left ankle, she suffered immediate severe pain in the ankle. She had also suffered a strain injury to her left shoulder. A colleague came to her assistance and she sat down and put an icepack on her ankle. After some time, she tried to continue working, but was unable to do so. She got her fiancé, who also worked in Dunnes Stores, to bring her home.
21. The plaintiff stated that she took paracetamol for the shoulder and ankle pain. She was not able to sleep that night due to pain. It was very hard to move about and she was unable to lie on her left side.
22. On the following day, her fiancé brought her to her G.P., who prescribed some anti-inflammatory medication and advised that she continue to put ice onto the ankle. Her shoulder pain was also severe and had become worse since the previous evening. Any activity, such as washing dishes, caused her severe pain.
23. On 24th June, 2011, the plaintiff asked her fiancé to bring her to James Connolly Memorial Hospital as she was continuing to experience severe pain in her shoulder and ankle. X-rays were taken and no fracture was shown. An M.R.I. scan taken in 2012, revealed a partial tear of the medial ligament in her ankle joint.
24. The plaintiff stated that in the days and weeks which followed, she continued to experience severe ankle and shoulder pain. She was unable to work. She had difficulty moving about her apartment. She was unable to place any weight on the left leg. She had approximately five sessions of physiotherapy treatment at that time. However, she found this treatment very painful. She became upset when she remained in so much pain after the physiotherapy treatment. The physiotherapist suggested that she should continue to ice her ankle and he referred her back to her G.P. At this time, the plaintiff was only able to wear one pair of shoes, which were low slung and did not touch her ankle joint.
25. The plaintiff stated that she remained disabled in the months which followed. She stated that one of her favourite pastimes had been bringing her dog for a walk. Initially after the accident she was unable to walk at all, without experiencing severe ankle pain. After a while she was able to manage very short walks, lasting for ten to fifteen minutes. She would have to sit down and take a rest during the walk.
26. The plaintiff stated that things were difficult for her and her fiancé as she was unable to work and therefore they had lost the benefit of one income coming into the house. Her fiancé had to take on extra hours, in an effort to bolster their joint finances. The plaintiff stated that over the months which followed, she became progressively more depressed. She was very frustrated and upset by her level of disability. She felt that her personality changed. Prior to the accident, she stated that she had been outgoing and a good communicator and had a good sense of humour. After the accident, she was disabled, in that she was not able to work and could not do things which she had done prior to the accident and which she enjoyed, such as running and hiking. Her friends told her that she was different after the accident. She stated that she stopped socialising and her relationship with her fiancé deteriorated. He was working long hours, but when he came home, she was not able to prepare the dinner for him, or engage in animated conversation.
27. Due to the deterioration in her mood, the plaintiff went to her G.P. He prescribed medication in the form of a Prozac type medication. However, she found this too strong as it caused her to faint on one occasion. The G.P. then changed the medication to a milder one which she took for a longer period. This medication helped in making her calmer and less anxious. Her appetite had gone down. She was slower making decisions. She did not like having to take this medication. Her G.P. also recommended counselling.
28. The plaintiff stated that she had counselling in Roselawn Medical Centre, where she was treated by a psychologist. She did this in blocks of five – eight sessions at a time. Then she would cease having counselling for a period but would return to it later on. She stated that she had had the counselling when she had been unemployed and continued to have it after she returned to work with Dunnes Stores on 19th January, 2012. She thought that in total she had 15 – 20 sessions.
29. The plaintiff stated that in January 2012, she was passed fit to return to work. She returned to Dunnes Stores on 19th January, 2012, and was put initially working on the checkout, so that she would not be standing on her feet all day. However, she continued to have a lot of pain and stiffness in her ankle. She stated that on returning to work, she would feel pain in the ankle come on in the first hour, but the pain was manageable thereafter. After a while she was moved to work at the Electronic Point of Sale, which involved going around the shop and making alterations to the prices of various goods. This was new work, which the plaintiff found more interesting than working at the checkouts. It was easier than working at the hot food counter.
30. The plaintiff stated that her ankle continued to be swollen and painful at the end of the working day. As already noted, an M.R.I. scan of the left ankle was carried out during the summer of 2012. It revealed evidence of a small partial tear of the medial ligament of the ankle joint (deltoid ligament).
31. The plaintiff stated that a number of incidents occurred at her place of employment, which caused her to become very apprehensive about her physical safety. The first incident occurred on 20th April, 2012, when the plaintiff was bending down pricing goods on the lower display shelves. She was hit by a trolley, which was laden with goods and which was being pushed by one of the managers.
32. She stated that while she did not suffer any significant injury, it did cause her considerable upset as she was still symptomatic in relation to her ankle and to a lesser extent in her shoulder.
33. A further incident occurred on 27th December, 2012, when the plaintiff was again pricing goods on a lower shelf, when a box of sweets, weighing 700g, fell from an upper shelf and struck her on the head. The plaintiff stated that this incident had an adverse effect on her mental state. She became afraid to go to work.
34. On 24th February, 2013, the plaintiff was working at the checkout and a large bottle of liquid was caused to topple over and fall, striking her on the right forearm. Four days later on 28th February, 2013, the plaintiff was again working at a checkout, when she became very faint, due to the fact that she was working near a hot air vent. She asked a manager could she be moved, but this request was declined. Some short time later, she became paralysed and short of breath and was not able to give a customer her change. The plaintiff said that she was shaking and felt very weird. She was having a full blown panic attack. She was taken to hospital for treatment. The plaintiff stated that due to an accumulation of all these incidents, she felt unable to return to the defendant’s shop. She could not even bring herself to go to the shop to do her shopping, even though it was the nearest shop to her apartment.
35. The plaintiff stated that her relationship with her fiancé continued to deteriorate. When he would come home in the evening, she was very anxious and nervous and was very upset. She was not a good communicator at that time. She stated that her fiancé had to do all the housework. She felt that her mental and physical condition had had a big impact on their relationship. She felt that she was not a good partner for him at that time, because she could not prepare the dinner or make conversation with him. Eventually, the relationship between the plaintiff and her fiancé broke up in May 2013. The plaintiff had further counselling from 21st May, 2013, until 27th June, 2013.
36. On 28th June, 2013, the plaintiff commenced training as a chef in Milano’s restaurant. The training was carried out during July and August and she commenced working in September 2013. However, she only worked with them for one month, finishing up on 9th October, 2013.
37. On 10th October, 2013, the plaintiff did an interview with the Harvey Norman chain of shops, and secured employment with them, which commenced on 15th October, 2013. On 11th October, 2013, the plaintiff had delivered a letter of resignation to Dunnes Stores, wherein she stated that due to an unsafe work environment and the fact that her mental health was being seriously endangered by job stress, she felt that she had to resign from her position of employment.
38. Since then the plaintiff has taken up her current position of employment, which is with a company called Bath House in Dun Laoghaire. That company designs kitchens and bathrooms and sells them to the public. The plaintiff enjoys her work with that company.
39. In relation to her present condition, the plaintiff stated that she continued to experience some pain in her ankle. If she walks long distances, her ankle swells and is painful. She is not able to go running at all. She is unable to wear high heels, as this causes the ankle to become very painful. She stated that she was very anxious in relation to what shoes she could wear and also what items she could lift. She is not able to lift heavy things. However, she stated that her shoulder was largely better. In relation to her mental health, she stated that she was not on any medication for this and was not having counselling at the present time. She stated that she felt much better. She was happy that she was feeling better and was more optimistic.
40. In cross examination, it was put to the plaintiff that while she had seen her G.P. on a number of occasions in 2011, by 16th January, 2012, it was recorded that her left ankle was “Much better since starting physio and wants to resume work. Feels herself she is fit for same. On exam, no swelling in ankle. Mild tenderness on palpation of anterior aspect of joint”. The plaintiff accepted that there had been slow improvement in relation to her ankle symptoms down to January 2012. At that stage, the G.P. recommended that she could return to light duties at work. However, the defendant had said that she would have to be fully fit before she could return to work. It was put to the plaintiff that she had looked for a new job in December 2011. The plaintiff stated that, when the defendant said that she would not be able to have light work with them, she started to look for other employment.
41. It was put to the plaintiff that by the time she saw Mr. Colville in May 2012, her shoulder pain had improved considerably. She stated that her shoulder pain had not resolved at that time, but had improved. She accepted that her main problem at that time was with her ankle and foot. Mr. Colville had told her that the pain would ease in time.
42. It was put to the plaintiff that when she saw Dr. Leader, Consultant Psychiatrist, on 23rd May, 2012, she had returned to work and her mood had improved considerably. The doctor was of opinion that her symptoms had largely resolved and there were no ongoing mental sequelea. It was also put to the plaintiff that she did not see her G.P. after January 2012 for the rest of that year. The plaintiff thought she had seen her G.P. on other occasions during the year. She had been advised to have counselling, which she had on and off during 2012 and subsequently.
43. It was put to the plaintiff that the reasons why she had only seen her G.P. on two occasions in 2012, was because her symptoms had largely cleared. The plaintiff did not accept this, she stated her ankle and shoulder had improved, but her mood had not improved. She still had bad days and needed counselling.
44. The plaintiff stated that when the incident with the box of sweets falling on her head occurred in December 2012, this caused her mood to further deteriorate. She returned to counselling at that point. Some months later, a bottle of liquid fell onto her right arm. This affected her mental state, as she felt that her employers were negligent and had allowed these accidents to happen. She accepted that they were small incidents, but they were having an effect on her. The plaintiff went on to state that she then had the panic attack on 28th February, 2013, and was not able to return to work with Dunnes Stores after that date.
45. It was put to the plaintiff that her accident had occurred in June 2011 and a lot had happened in her life in the following two years. The plaintiff stated that that was correct. It was put to her that there were some sad personal things which happened, but that these could not be blamed on the accident of 2011, for example, the breakup of her relationship was not due to the accident. The plaintiff did not agree; she stated that if she did not have such mental difficulties after her accident, she would have gone on to marry her fiancé and would have had a family by now. It was put to the plaintiff that Mr. Colville was of opinion that the plaintiff had made a complete recovery. The plaintiff stated that that was dependent upon what one deemed to be a “complete recovery”. She stated that her left ankle looked the same as her right ankle, but she was still not able to wear high heels and she had pain in the ankle, which she never had before the accident.
46. It was put to the plaintiff that she had told Mr. Sharif in April 2014 that she was 90/95% better and only had minor pain, which would last for a number of minutes. The plaintiff stated that it all depended on how she would spend her day. If she did not walk, she would not experience pain in her ankle. If she did not wear high heels, she would not feel pain. If she did not drive for more than an hour, she would not experience pain. But if she did any of these things, then her ankle continued to cause pain.
The Medical Evidence
47. Evidence was given by Dr. Ann Leader, Consultant Psychiatrist, on behalf of the plaintiff. She saw the plaintiff on behalf of the Injuries Board on 23rd May, 2012. At that time, the plaintiff had been distressed by the effects of her injuries and had been given anti-depressant medication by her G.P. She diagnosed the plaintiff as suffering from anxiety symptoms with disturbed sleep. She did not think that the plaintiff was clinically depressed. The plaintiff had had counselling, which was continuing.
48. She next saw the plaintiff in 2014 at the request of her solicitor. The plaintiff had sent her a very detailed email, which set out how her injuries, both physical and psychiatric, had affected her since the time of the accident. This email was incorporated into the body of the doctor’s second medical report. The incident at work had caused the plaintiff to suffer stress and anxiety and she had been treated for depression by her G.P. However, the doctor did not think that she was depressed when she saw her. The subsequent accidents at her place of work, made her dread going to work. She agreed with the diagnosis given by Dr. Sinanan that the plaintiff had suffered a depressive adjustment disorder due to her injuries. She also agreed that she had made a reasonably good recovery from a mental health aspect.
49. Dr. Leader was of opinion that the plaintiff had lost her relationship with her fiancé as a result of her injuries and the effect thereof on her mental health. She was grieving for the loss of that relationship. The doctor noted that her relationship with her fiancé had been fine prior to the accident. The loss of such a relationship was a very distressing event for a young woman. In addition to that, her relationship with her employer had changed since the accident and the subsequent incidents had caused her to become deeply afraid of going to work.
50. In cross examination, Dr. Leader accepted that the plaintiff had not been clinically depressed, when she saw her in 2012, or subsequently in 2014. By May 2012, she had returned to work and was much improved. She felt at that time that there should be no ongoing psychiatric sequelea. There have been a number of distressing incidents at work. However, she accepted that the trolley incident which occurred in April 2012, had not been mentioned to her, when she saw the plaintiff in May 2012.
51. It was put to the witness that the incident involving the falling sweet box in December 2012 and the incident with the falling bottle in February 2013, were not part of this case. Dr. Leader said she accepted that, however, they were part of the reason that the plaintiff wished to leave Dunnes, as being there was very anxious for her for a variety of reasons and she felt that work had become too stressful for her. Dr. Leader stated that these incidents had to be seen as part of a progression. The index accident led to strain in the relationship with the plaintiff’s employers. The other accidents caused her stress and anxiety and caused her to fear going to work in Dunnes, leading ultimately to the panic attack on 28th February, 2013.
52. Dr. Leader stated that all these events were stressful factors, which had occurred to the plaintiff at a time, when she had relationship difficulties with her fiancé. She was of opinion that the first accident was the index event. It put in train the other events. She thought that the accident in June 2011, was a significant event. She accepted that the plaintiff’s mood had substantially recovered by the time she saw her in 2012. Nevertheless, she felt that the first accident set in motion a chain of events causing the plaintiff to have a fear of going to work, which culminated in a panic attack and the subsequent breakup of her relationship. She had no history of depression before the first accident. The witness stated that she agreed with the opinion given by Mr. Sinanan in his report. She was of opinion that the plaintiff’s condition had improved considerably over time.
53. The court was also furnished with a number of medical reports from various doctors. It is only necessary to give a brief summary of these reports, as the findings therein were put to the plaintiff and to Dr. Leader in cross examination.
54. The first report was from the plaintiff’s G.P., Dr. Nicola Stapleton, from an examination on 2nd September, 2011. The plaintiff complained of feeling stiffness in the left ankle all the time, with some swelling intermittently. She experienced sharp stabbing pains in the ankle. She also had parathaesia in her ankle. She walked with a limp and experienced a sharp pain when walking. She also experienced anterior shin discomfort, as well as foot discomfort. Her shoulder had intermittent pain in certain positions e.g. lifting objects, or when she lies down. She was getting headaches since the accident. She had pain in her right leg because of the way she was walking with a limp for this.
55. Dr. Stapleton noted that there had been some progress in her leg symptoms since the accident, but she was still very symptomatic. She had been discharged from physiotherapy as it was not helping. Her shoulder symptoms had not changed. She had ongoing headaches. She had also become depressed and was on antidepressant medication.
56. Dr. Stapleton noted that the leg injury was very slow to improve. The plaintiff was still limping. She was concerned that this might cause long term problems and she needed to be assessed by an orthopaedic specialist to clarify the potential long term consequences of this. The shoulder injury had also seen little improvement. Dr. Stapleton though that she may experience longer term pain with this injury. She also had a reactive depression, for which Dr. Stapleton expected her to be on medication for a period of six – nine months. In relation to the headaches it was unclear if they would be a long term issue or not.
57. The plaintiff was examined by Mr. Hemant Thakore, Consultant Orthopaedic Surgeon, on 12th September, 2011. He formed the opinion that the plaintiff had suffered a soft tissue injury to her left shoulder and left foot. He wished to have sight of x-rays and an M.R.I. scan before giving a definitive diagnosis. However, he thought that the plaintiff had probably damaged her rotator cuff, with signs of impingement on internal rotation and abduction. He thought that the plaintiff probably had tendonitis of the left shoulder and a sprain of the ankle, with inflammation, as a result of the injury. He recommended that the plaintiff should have further physiotherapy to her left shoulder and left foot. He also noted that the plaintiff had suffered a lot of stress as a result of the injury. This required to be addressed by counselling. Overall, his prognosis remained guarded at that time.
58. The plaintiff was seen by Mr. James Colville, Consultant Orthopaedic Surgeon, on 18th April, 2012, which was ten months post accident. The plaintiff complained of experiencing headaches. She also had back pain which began in August 2011. She stated that her foot was not one hundred percent. If she walked far, the foot would become painful. She was unable to walk fast, or run. The plaintiff stated that she also had shoulder pain, which began after the accident. It had improved by the time of the examination, but troubled her for quite some time after the accident. Examination of both shoulders revealed the right to be equal to the left and normal. Examination of the left ankle and foot revealed a full range of movement in the ankle joint. There was no external evidence of injury, the ankle joint was stable and there was no clinical evidence of arthritis. It was noted that the plaintiff walked normally.
59. Mr. Colville stated that the plaintiff’s symptoms were somewhat difficult to understand, with the exception perhaps of the ankle and foot, which was still troubling her to some extent. The soft tissue injury there would be expected to recover completely given time. He anticipated that at two years from the time of the accident, she should have little, if anything, to indicate that she had had an accident. The other symptoms presenting at a later stage, in his opinion, were unrelated to the accident.
60. He recommended that the plaintiff should have an M.R.I. scan of the left ankle and foot.
61. Mr. Colville issued an addendum to his report on 4th July, 2012, having had sight of the M.R.I. scan. It showed evidence of a small partial tear of the medial ligament of the ankle joint (deltoid ligament). He stated that in summary the plaintiff sustained a relatively minor ligamentous injury to the medial aspect of her ankle joint. He anticipated that in time she would make a full recovery. There was no arthritic change in the joint and nothing to suggest that she had a significant injury there. Relating to her other complaints, i.e. headaches and back pain, in his opinion these did not relate to the accident as described to him.
62. The plaintiff was examined by Mr. Imran Sharif, Consultant Orthopaedic Surgeon, on 23rd April, 2014, almost three years post accident. The plaintiff told him that she had improved a lot since the accident. She felt about 90 – 95% better. There were minor symptoms, that did not affect her on a daily basis. She told him that the pain when it came on, lasted for minutes, or for a few hours and it settled down on its own. She did not take any painkillers at that time. She told him that she found most of the days were good, but occasionally if she was standing for long periods of time and doing heavy work, then she would get pain in her ankle.
63. Examination revealed that she walked without a limp. Examination of the left shoulder was normal. In relation to the left ankle, there was no swelling or scarring. She had a full range of movement. The ankle joint was stable. There was tenderness on the anteromedial aspect of her ankle. Other than that there was no other abnormality. The plaintiff told him that her personal and social life had been affected since the accident. She stated that she felt very depressed and because of the accidents, her life had changed a lot and she had required assessment by a psychiatrist. She told him that she had limped a lot initially, but that the limping had gradually cleared up. She found it difficult to stand for long periods of time. She had difficulty wearing high heels and walking on uneven ground.
64. Mr. Sharif was of opinion that the plaintiff had suffered injuries to her left foot and ankle when the glass had fallen onto it. She had also jerked her left shoulder. Both of these had resolved to a state where she was getting minor twinges and aches on and off. These were minor and residual. It was then almost three years since the accident. The plaintiff remained symptomatic, but it was at a minor level. She was not a candidate for any type of surgery. She was getting on with her normal life and the symptoms which she had were not restricting her daily activities. However, her injuries had affected her emotional state and she remained symptomatic with that. He advised that a report should be obtained from a psychiatrist. He believed that the minor symptoms that she had, would gradually settle down fully. He did not anticipate any long term problems arising from this injury. Arthritis was not likely to occur as a consequence of these injuries. However, he thought her psychological symptoms may affect her in the long term.
65. The plaintiff was examined by Dr. Kenneth Sinanan, Consultant Psychiatrist, on 16th November, 2016. Having taken a full history from the plaintiff and having referred to Dr. Leader’s two medical reports, he was of opinion that the plaintiff had suffered a depressive adjustment reaction/disorder following the injury to her ankle and shoulder and the pain in them, from her accident in Dunnes Stores on 21st June, 2011. He stated that from the reports supplied, it appeared that over time she had made a reasonably good recovery from the psychiatric point of view. He had difficulty understanding why the plaintiff was so vague in certain of her answers and why she had so much difficulty remembering some of the details of her past and dates of her work record.
66. Dr. Sinanan was of opinion that the plaintiff had had appropriate treatment for her psychiatric symptoms and was now back working as a sales assistant. While she was emotional and distressed during the consultation, she did smile appropriately on occasion and therefore he believed that her depression had improved considerably. She indicated that she had had no psychiatric treatment, or psychiatric medication, in the previous twelve months.
67. Finally, a report had been furnished by Mr. James Colville from an examination carried out on 23rd November, 2016. At that examination, the plaintiff complained that she had slight pain in the left ankle. It troubled her when she was driving for more than an hour. Using the clutch caused her ankle to be painful. She stated that she was not able to wear high heels, due to ankle pain. She stated that she used to run a lot, but was unable to do that anymore. She did some hiking but not as much as before. She thought that she was getting better slowly. She no longer took any tablets for pain.
68. On examination, Mr. Colville noted that the plaintiff looked healthy. She walked without a limp. Examination of the left lower limb and comparing it with the right, revealed no muscle wasting. The joints of the foot were equal to the opposite side. There were no clinical signs of arthritis or instability.
69. Mr. Colville was of opinion that the plaintiff sustained a painful injury to her ankle, which would have necessitated her being away from very physical activities for a period of time – perhaps as long as six months. However, beyond that time, as far as her ankle was concerned, in his opinion the plaintiff should have made a good recovery. Based on his assessment of her at that examination, there was no residual evidence of injury and it should be anticipated that she had already returned to her pre-accident state.
Conclusions on Quantum
70. The first matter that needs to be dealt with, is a submission which was made by counsel for the plaintiff during the opening of the case. He stated that liability had initially been put in issue by the defendant in its defence. This defence was in a fairly standard form. It denied negligence and liability and also alleged contributory negligence on the part of the plaintiff.
71. That defence had been delivered on 25th February, 2014. Mr. Byrne, S.C., submitted that the plaintiff had had to live with the stress and anxiety which were caused by virtue of the fact that liability had been put in issue in the pleadings. He stated that it was only on the morning of the hearing of the action, that counsel for the defendant indicated that while he was not formally conceding liability, he would not be cross examining the plaintiff, or her engineer, in relation to any liability aspects. In these circumstances, it was submitted that the plaintiff was entitled to be compensated for the stress of having to deal with High Court litigation in which liability had been put in issue.
72. I do not think that that submission is a sound one in law. Parties are always free to adopt whatever line they wish in relation to a case that is brought against them. Often defendants will enter a full defence, with a plea of contributory negligence at the outset of the action. After further investigation of the matter and in particular when an engineer’s report is to hand, or when the relevant documents have been examined, the defendant and/or its insurer, may change their minds and decide to concede the issue of liability. It is in the interests of justice and in particular in the interests of promoting the most efficient use of court time, that parties should be encouraged to narrow the issues as much as possible prior to the action coming on for hearing.
73. If I were to penalise the defendant for its decision to concede liability, albeit very late in the day, this would send a message out to other defendants, that they should not change their stance on liability, as to do so might expose them to a claim for additional damages. This would not promote the efficient use of court time and would not serve the interests of justice.
74. It seems to me that a defendant is always entitled to concede liability if it wishes to do so in advance of the hearing of the action. I do not think that they should be penalised for taking that step. Different considerations might apply if the defence which had been filed by the defendant, effectively alleged or inferred that the plaintiff was bringing a fraudulent claim, or was being dishonest in relation to the circumstances of the accident or as to the extent of her injuries. If there had been a plea to that effect and if that had been withdrawn on the eve of the hearing, a court may well decide that the defendant should be penalised for the period of time during which it put forward that unfounded claim. However, this does not arise in the present case. Accordingly, I decline to penalise the defendant for changing its stance on liability.
75. I turn now to deal with the award of damages in this case. The plaintiff is 35 years of age, having been born on 4th April, 1981. All of the available evidence, suggests that prior to her accident on 21st June, 2011, she was a fit and healthy young woman, who was in a stable long term relationship and indeed was engaged to be married to her fiancé. There is no suggestion that she had any physical or psychiatric difficulties prior to the time of the accident.
76. I am satisfied, having observed the plaintiff give her evidence in the witness box and having regard to the frank concessions which she made when being examined by various doctors, that the plaintiff is a truthful witness, who has given a fair and accurate account of her symptoms since the time of the accident.
77. As a result of the accident, she suffered a jerking injury to her left shoulder, a partial tear of the medial ligament of the left ankle and she experienced psychiatric sequelea, in the form of a depressive adjustment reaction/disorder. In the weeks and months following the accident, she experienced constant and at times severe pain in her ankle. It appears that she was rendered significantly disabled and was effectively confined to her apartment in the early months. Thereafter, she was able to take very short walks, but had to rest while so doing. She was rendered unfit for work for approximately six months from 21st June, 2011, until 19th January, 2012.
78. During the period that she was out of work, her mood deteriorated significantly. Her fiancé was obliged to take on extra hours at work, so as to augment the family budget. Due to her injuries and depressed mood, the plaintiff was not able to cook dinner for her partner, nor was she able to engage in meaningful conversation when he came home. She described how she was often distressed and upset by the end of the day. When the plaintiff’s friends and her fiancé told her that she had changed since the accident, she felt it necessary to attend with her G.P., who prescribed antidepressant medication.
79. The plaintiff was also advised to have counselling and she had this in blocks of five/eight sessions at a time. She had counselling during the period that she was out of work and after she returned to work with Dunnes Stores in January 2012. In all, she estimated that she had fifteen/twenty sessions of counselling.
80. The plaintiff came under the care of Dr. Ann Leader, Consultant Psychiatrist, who saw her for the first time on 23rd May, 2012, at the request of the Injuries Board. She diagnosed that the plaintiff was suffering from reactive anxiety and stress, secondary to the injury sustained at work. The plaintiff had described her condition after the accident as being “depressed, anxious, emotionally drained and apathetic”. She stated that she had not been like that before the accident. After the accident, she was more easily stressed. She could not concentrate and was slow at making decisions. The plaintiff was asked to write out an account of her mental and physical condition, which she did in the course of a long email, which was incorporated into the body of the medical report furnished by Dr. Leader dated 4th July, 2014. The court has had regard to the content of this statement. The court is satisfied that it gives a fair and balanced account of her injuries and difficulties since the time of the accident. The court is satisfied that the plaintiff has not, at any stage, overstated her injuries.
81. Unfortunately, the plaintiff was involved in a number of small accidents at her place of work. She was hit by a trolley on 20th April, 2012, a box of sweets fell on her head on 27th December, 2012 and a bottle toppled over at the checkout and fell onto her arm on 24th February, 2013. Finally, the plaintiff had a full blown panic attack on 28th February, 2013, for which she was brought to hospital for treatment. She did not return to work for Dunnes Stores after that date.
82. However, the plaintiff did not remain idle. She secured employment in Milano’s restaurant and subsequently in the Harvey Norman store. More recently, she has taken up employment in a company called Bath House in Dun Laoghaire, which designs and manufactures kitchens and bathrooms. The plaintiff is very happy in her job with that company.
83. In May 2013, the plaintiff broke up with her fiancé. The plaintiff is of the view that the injuries which she sustained, both physical and mental, in the accident in June 2011, were the catalyst, which, combined with the subsequent smaller accidents at her place of work, led to the significant deterioration in her mental health, which in turn resulted in the breakup of her relationship. When it was put to the plaintiff in the course of cross examination that the breakup of her relationship almost two years after the date of the accident, could not be ascribed to that accident, she stated that it was her view that, had she not suffered the injuries which she did in June 2011, she would by now be a married woman and would possibly have had children in the interim.
84. There is support for this assertion in the medical report dated 4th July, 2014, furnished by Dr. Leader in which she stated as follows:-
“Olga’s situation in life has changed greatly due to the loss of her relationship. She finds herself alone at 33 and is grieving the breakup with her boyfriend. It is well recognised that ongoing pain, disability and depression can damage interpersonal relationships. Her most recent account of what she suffered as a result of the accident is very clear and outlines the changes in her circumstances as a result of the accident.”
85. In her evidence, Dr. Leader agreed with the diagnosis given by Dr. Sinanan, that the plaintiff had suffered a depressive adjustment reaction/disorder as a result of the accident, for which she had been treated with anti-depressant medication and 15/20 sessions of counselling. In relation to the breakup of the plaintiff’s engagement, she was of opinion that the accident in June 2011, could be seen as the trigger event which, combined with the other small accidents and the panic attack, led to the deterioration in the plaintiff’s mental health to such extent that her relationship broke up.
86. On this aspect of the case, Mr. Leonard, S.C., made the following submission on behalf of the defendant: he submitted that the psychiatric aspect of the plaintiff’s injury, had largely resolved by May 2012. He stated that any continuing symptoms after that date, were not referable to the accident. He stated that there was no evidence of depression when the plaintiff was examined by Dr. Leader in 2012, or 2014. He submitted that any continuing sequelea beyond May 2012, were not caused by the accident in June 2011. In particular, the breakdown of the plaintiff’s relationship with her finance in May 2013, was not a foreseeable consequence of the accident in June 2011. Where it was not reasonably foreseeable that the relationship may break up, the defendant should not be held responsible for that eventuality.
87. In response, Mr. Byrne, S.C., stated that the accident had had a significant impact on the plaintiff’s health. As a result of her injury, this 33 year old woman was no longer able to wear high heeled shoes. He submitted that this was a significant disability for a woman of her age.
88. In relation to the psychiatric aspect, he pointed out that the plaintiff had been in a stable relationship prior to the accident. Due to the injuries sustained in the accident, she was no longer able to care for her partner or make conversation with him, as she had done prior to the accident. Her psychiatric injury had been significant, which was evidenced by the fact that she had to be put on anti-depressant medication and required counselling. He pointed out that the circumstances relating to the deterioration in her relationship were described in detail in the email, which she sent to Dr. Leader. That doctor was of opinion that the accident and the injuries sustained therein, had been the dominant cause of the breakup of the relationship. In such circumstances, it was an event which was directly referable to the injuries sustained by the plaintiff and accordingly should constitute part of the award of damages.
89. In considering the question of the remoteness of damage, one has to bear in mind the principle long established in Irish law, that the defendant must take his victim as he finds him. In McCarthy v. Murphy [1998] IEHC 23, McCracken J. was dealing with a case where the plaintiff had suffered foreseeable soft tissue injury in a minor traffic accident caused by the defendant’s negligence, but had gone on to develop a depressive reaction which was attributable in part to an underlying depressive condition. In the course of his judgment, McCracken J. observed as follows:-
“Of course the Defendant could not have anticipated that [the plaintiff] was a person with a pre-disposition to depression, but he could have reasonably foreseen a soft tissue injury, and that being so, he is liable for damage which flows from that injury, as he has to take the Plaintiff as he finds her.”
90. In Walsh v. South Tipperary County Council [2012] 1 I.R. 522, which was a case concerning liability for a negligent misrepresentation, Clarke J. had the following general observations on the question of remoteness of damage in personal injury actions:-
“[46] A driver who knocks down a young man causing a relatively straightforward broken leg (likely to be fully cured within six months) might be very surprised indeed to find a claim in damages which included an allegation of lost earnings running to many millions of euro. However, if it transpired that the plaintiff was a young South American football star having a brief holiday in Ireland before going to sign an arranged contract with a major premiership football club, then a loss of wages for a football season running into numbers of millions would be likely to be sustained. The fact that the quantum might be surprising is not the issue. It is foreseeable that causing an injury to a party may lead them to be unable to work and that there will be a loss in the shape of a loss of wages. Once a loss of wages is foreseeable the fact that, in the peculiar and unusual circumstances of the case, the amount might be surprisingly large does not render those damages unforeseeable.
[47] Likewise, in the oft-quoted case of the injured party with the so-called ‘eggshell skull’ it can, on occasion, turn out that, due to some weakness or predisposition, a particular injured party suffers much more severe consequences from a relatively innocuous incident than might be expected. However, it again remains the case that, if personal injury is a foreseeable consequence of whatever wrongdoing is concerned (say the negligent driving of a motor vehicle), then the fact that those injuries may, in the peculiar circumstances of the case, be much more severe than might have been expected, does not deprive the injured party from an entitlement to recover whatever may be appropriate for those injuries.”
91. Clarke J. cited with approval the opinion expressed by the learned authors of McMahon & Binchy, Law of Torts (3rd Ed.) at para. 3.32, which is reproduced in the 4th Ed. at para. 3.36 as follows:-
“The eggshell skull rule has survived the reasonable foreseeability rule introduced by Wagon Mound (No. 1). According to this rule if the defendant could foresee a particular type of physical or psychological injury to the plaintiff then he or she will be liable for all the physical or psychological injury that follows on account of the plaintiff’s particularly vulnerable pre-accident condition, even if it turns out that the injuries to the plaintiff were far more than might reasonably have been expected in normal circumstances.”
92. The learned authors went on to point out that in England in Page v. Smith [1996] 1 AC 155, the House of Lords by a majority went so far as to hold that, where the defendant negligently risks causing personal injury and the plaintiff sustained an unforeseeable psychiatric injury, liability should be imposed. Lord Lloyd observed:-
“The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff….
There is no justification for regarding physical and psychiatric injury as different ‘kinds’ of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both.”
93. While that approach was criticised by Goff L.J. in his dissenting judgment in White v. Chief Constable of South Yorkshire Police [1999] 2 AC 455, in Ireland the Supreme Court in Fletcher v. Commissioner of Public Works [2003] 1 IR 465, was far less hostile to that approach. In the course of his judgment, Keane C.J. stated:-
“The test in every case ought to be whether the law should apply the ‘eggshell skull’ test in cases of psychiatric illness. Lord Goff may be right in saying that, in cases where there is no physical injury, this is to translate a rule relating to compensation into a general principle of liability. The fact remains that the test is applied routinely in personal injury cases in our courts: one is well familiar with minor soft tissue injuries which have, according to medical evidence, caused the plaintiff acute psychiatric injury which, one is assured, is of real significance to the plaintiff, however surprising his or her reaction is to the objective finder of fact. It seems to me that, logically, the same considerations should apply where there is no physical injury.”
94. Based on these authorities, I am satisfied that once it was reasonably foreseeable that the plaintiff might suffer personal injury if the defendant was negligent, then she could recover for mental injury as well as for physical injury. I am satisfied that personal injury was foreseeable in the circumstances of this case. Accordingly, the plaintiff is entitled to recover damages in respect of the injuries to her left shoulder and left ankle. She is also entitled to be compensated for the psychiatric injury suffered by her in the form of a depressive adjustment reaction/disorder as found by Dr. Leader and Dr. Sinanan.
95. As to the recovery of damages for the breakup of her relationship, I am satisfied that in principal, it could, in certain circumstances, be possible to establish that a person’s physical and psychiatric injuries were of such gravity, that they led to the breakup of a long term relationship with a spouse or partner. However, one would need very clear evidence of a causal link between the plaintiff’s physical or psychiatric condition and the demise of the relationship, before it could be recoverable as a component of general damages. It seems to me that it would need evidence not only from the plaintiff, but also probably from her former partner and other family members, to the effect that her injuries had been such that they led to a breakdown in the relationship.
96. In this case, the plaintiff has not presented sufficient evidence to enable the court to award damages in respect of the breakup of her engagement in 2013. The court notes that she had been able to return to work in January 2012, which was some eighteen months prior to the breakup of the relationship. She was able to cope with the demands of her work until she made the decision to leave Dunnes in February 2013, due to the smaller accidents and due to her panic attack in that month. Thereafter, she had secured alternative employment reasonably quickly. We have not heard from the plaintiff’s former partner as to his reasons for the breakdown in relations. The court cannot speculate as to what reason he might have had for calling off the engagement.
97. A relationship between two people may break up for a variety of reasons. Indeed, there may well be more than one reason leading to the breakup of the relationship. On the evidence in this case, it is not possible to lay the blame for the breakup of the plaintiff’s relationship with her fiancé, at the door of the accident, which occurred two years previously in June 2011. Accordingly, I decline to make any award of damages in respect of the breakup of her relationship.
98. In relation to her current mental health, it would appear that her psychiatric health issues are now behind her. She has not required any psychiatric medication or counselling in the last year.
99. In relation to her physical injuries, when seen by Mr. Colville on 23rd November, 2016, the plaintiff had the following complaints: slight pain in the left ankle when driving for more than an hour, an inability to wear high heels due to ankle pain, an inability to go running as she had done prior to the accident, however, she was able to do some hiking, but not as much as prior to the accident. I think that this represents a fair account of her current physical capabilities.
100. While the plaintiff herself did not make a huge issue of these continuing sequelea, she was upset that she was still not able to wear high heeled shoes at the time this action came on for hearing, some five years post-accident. This represents a significant continuing disability for the plaintiff. She is a young single woman, who may well want to wear high heeled shoes when going out to formal functions, such as weddings, birthday parties or dinner dances, or she may want to wear them when going out to a restaurant with a boyfriend or male companion. This continuing disability, allied to her other complaints to Mr. Colville, merit a modest award of damages into the future.
101. Taking all of these matters into consideration, I award the plaintiff the sum of €45,000 for general damages to date, together with the sum of €15,000 in respect of her continuing disability. To this must be added the sum of €5,246 as agreed special damages. This gives an overall award of €65,246.
Wilcynska v Dunnes Stores
[2017] IEHC 305
JUDGMENT of Mr. Justice Barr delivered on the 11th day of May, 2017
Introduction
1. This action arises out of an accident which occurred on 11th December, 2013 at the Dunnes Stores shop in Kilkenny city. The plaintiff was employed as a sales assistant in the Kilkenny store at the time of the accident. She remains so employed today.
2. On the day of the accident, the plaintiff was operating one of the “express checkouts” in the store. The workstation at these checkouts, involved a wraparound workstation, at which the operative sat in front of the weighing scales and scanning machine. Customers would place a basket with goods in it, in a depression or well to the left of the checkout operative. The sales assistant would lift the produce from the basket, place it on the scales or run it past the scanner and then place the goods in another well to her right, where they would be put into a bag by the customer. The cash register was situated to the right of the operative.
3. On the day of the accident, the plaintiff had returned from a break and was taking over from another employee. She pulled out the chair on which she was going to sit and sat down on it. As she wished to adjust the height of her chair, the plaintiff put her right hand beneath the seat of the chair and pulled the height adjustment lever upwards, which would release the spring and cause the chair to descend. It is the plaintiff’s case that the chair descended very rapidly, causing the fingers on her right hand, which was still holding the lever, to become trapped between the underside of the lever and the top of a cashbox, which was housed in shelving to her right. As a result the plaintiff suffered injury to her right hand.
4. The defendant acceptes that the accident occurred in the manner alleged by the plaintiff. However they deny that the accident was caused by any negligence or breach of duty on its part. The defence also containes a plea of contributory negligence against the plaintiff.
The plaintiff’s case
5. The plaintiff moved to Ireland in 2006. She has worked in the defendant’s company in the position of sales assistant every since. She is 31 years of age. She lives with her partner and has one daughter.
6. It is the plaintiff’s case that she was returning to her workstation after a twenty minute break. Her workstation had been used by another employee for the duration of her break. The workstation was one of the express checkouts, of which there were two in the store at that time.
7. The plaintiff claims that when she returned to her workstation, the height on her chair had been changed, to facilitate the employee who had been sitting there during her break. As a result, the plaintiff needed to adjust the height of the chair, which she did by pulling the height adjusting lever, which was located beneath the seat and on the right of the chair. The plaintiff stated that the chair descended very quickly, resulting in her hand becoming caught between the lever and a cashbox, located in shelving to the right of the chair. The plaintiff was sitting in the chair, when she activated the height adjustment lever. After the accident, the plaintiff reported it to Ms. Fiona O’Reilly, the H.R. Manager at the store. She received first aid treatment from a trained member of staff. She then took a taxi to hospital.
8. The accident occurred in “express checkout no. 1”. This checkout is no longer in existence, as the “express checkouts” were replaced with self-service checkouts soon after the accident. The plaintiff’s workstation, featured a cashbox for storage of a till tray containing cash, when an employee took a break. It was located to the right of the employee when seated. These cashboxes were located to the left of the employee in the larger checkout in which conveyer belts were used, referred to as “belted checkouts”. The plaintiff stated that the “belted checkouts” were much more spacious than the “express checkouts”. She stated that there was little room to move about in the “express checkout” workspace and that entering the space necessitated that the chair be removed from the workstation to allow the sales assistant to enter.
9. The plaintiff set out in her personal injuries summons, dated 4th June 2015, the particulars of negligence and breach of duty, which she alleged against the defendant as follows:-
“The defendant, its officers, servants or agents were guilty of negligence and breach of duty (including breach of statutory duty and breach of contractual duty) in:-
(a) Providing the plaintiff with a chair which was dangerous and defective;
(b) Failing to provide the plaintiff with a suitable chair;
(c) Failing to ensure that the chair which was provided to the plaintiff was defect free;
(d) Causing, allowing or permitting the chair in question to be or to remain in a defective or dangerous condition, such that the seat collapsed rapidly when the lever was pulled;
(e) Failing to take any or any proper or effective measure to ensure that the chair in question was secure and would not collapse when the lever was pulled;
(f) Failing to enforce any adequate system for the inspection and maintenance of the chair in question to ensure that it was safe and secure;
(g) Exposing the plaintiff to a danger of which it was aware or of which it ought to have been aware;
(h) Exposing the plaintiff to an unsafe system of work;
(i) Failing to adequately assess the risk to which the plaintiff was exposed;
(j) Failing to take any or any adequate steps to minimise the risk to which the plaintiff was exposed;
(k) Being in breach of the implied term of the plaintiff’s contract of employment that she would be provided with a safe place of work and a safe system of work;
(l) Being in breach of the Safety, Health and Welfare at Work Act 2005 and the regulations made thereunder for the reasons pleaded heretofore;
(m) Being guilty of such further and other acts of negligence and breach of duty (including breach of statutory duty and breach of contractual duty) as may be pleaded prior to the hearing of this action and/or as may transpire during the course of the hearing thereof. The plaintiff reserves her position in this regard;
(n) The plaintiff should further rely on the doctrine or res ipsa loquitur to affix the defendant with liability for the reasons as pleaded heretofore”
10. In her application to the Injuries Board the plaintiff made the case that the chair she was using was in a dangerous and defective condition and that her injury was caused by the chair dropping rapidly.
11. At the date of issuing the personal injury summons, the plaintiff’s case focussed on a liability on the part of the defendant for supplying a faulty chair. In particular, it was alleged that liability for the accident arose due to the speed with which the chair descended and the potential for injury arising from this and was not concerned with potentially hazardous objects in the area adjacent to the chair. The plaintiff’s engineer inspected the chair at a joint engineering inspection, which was carried out in May 2015. He accepted that the chair which was made available to him for examination, was in proper working condition at the time that he examined it.
12. The defendant’s security manager, Ms. Jodie Maher, stated that approximately ten minutes after the plaintiff’s accident, after she had ascertained that the plaintiff was being medically treated, she went to the plaintiff’s workstation and removed the chair. She directed a male member of staff to bring it to the back office. There she placed a notice on it, stating that it was not to be put back into circulation. She confirmed that the chair in question had been retained by her in the back office and it was that chair which had been made available to the engineers for their inspection.
13. In her evidence, the plaintiff did not accept that the chair which had been examined by the engineers, was in fact the chair on which she had been sitting at the time of the accident, as there was a significant time lapse between the time of her accident and the time when the chair was removed from the workstation. The plaintiff further stated that there had been ongoing issues concerning the lack of chairs on the shop floor and also in relation to the condition of the chairs on the shop floor. She stated that members of staff often moved chairs from one workstation to another, to ensure that they had the most comfortable chair available, as many of the chairs were defective. The plaintiff stated that she and other sales assistants had complained to Mr. Declan Forrister and Ms. Fiona O’Reilly about the malfunctioning of the chairs. These concerns had been raised at various “communication meetings”, which were attended by staff. Counsel for the defendant accepted that there had been an ongoing issue in relation to there being too few chairs, being available for use by sales assistants at the checkout area, but Counsel did not accept that there was an ongoing issue with broken or malfunctioning chairs.
14. The plaintiff stated that the cause of the accident, was the chair dropping too quickly and the location of the cashbox, which constituted a danger to persons using the chair at that workstation. She maintained that Dunnes Stores had not provided an appropriate workspace and as a result of this, when she used the lever on the right hand side of the chair, her hand became caught between the cashbox and the chair lever, causing her injury. The plaintiff claimed that this was an accident waiting to happen, as the chair height had to be adjusted to accommodate height differences between employees.
15. In a notice of further and better particulars of negligence and breach of duty dated 30th November, 2015, the plaintiff pleaded the following particulars of negligence and breach of duty against the defendant:-
“(a) Placing the steel cashbox at the express checkout till in a region proximate to the seat level adjustment lever, with the result that the lever was liable to – and did – make contact with the cashbox in the course of its descent;
(b) Positioning the steel cashbox too close to the seat level adjustment lever on the chair provided to employees;
(c) Placing the steel cashbox to the right hand side of the express checkout till, where it was within the descent path of the seat adjustment lever;
(d) Failing to design the express checkout till area in such a way as to ensure that the cashbox was located in a region which was clear of the adjustable range of the seat;
(e) Failing to place the cashbox at the express checkout till to the left hand side of the till, the position at which it was located at all other tills in the store;
(f) Designing and constructing the express checkout till in an unsafe and cramped manner;
(g) Requiring the plaintiff to work in an unsafe workplace;
(h) Exposing the plaintiff to a foreseeable risk of suffering an entrapment injury by reason of the design and layout of the express checkout till area;
(i) Being in breach of sections 8, 9, 10, 15 and 19 of the Safety, Health and Welfare at Work Act 2005 for the reasons as aforesaid;
(j) Being in breach of regulations 17, 28, 29 and 30 of the Safety, Health and Welfare at Work (General Application) Regulations 2007 for the reasons as aforesaid….”
16. The steel cashbox, the stationary object the plaintiff’s hand came in contact with, causing injury, was a common piece of security equipment in Dunnes Stores retail outlets. The function of this secure steel box, with a lock and key, was to allow employees to store their till trays, containing a cash float, or the takings from earlier in their shift, during breaks. The plaintiff stated that the steel cashbox at “express checkout No. 1”, the location of the accident, was not operational at the time of the accident, due to the doors being broken on that cashbox. A sales assistant who was going on a break from that workstation, would have to leave that post with their till tray and carry it to a cashbox at a different checkout for it to be securely stored during the break.
17. The plaintiff stated there was a busy “belted checkout” located behind the “express checkout”, where she was working. As a result, she had to move her chair into the work space quickly, when returning to her seat. The plaintiff stated that as the accident occurred in December, a busy time of year in the store approaching the Christmas period, her focus while lowering the chair was to quickly get ready to serve customers.
18. The plaintiff stated in cross examination that she believed that she had positioned the chair centrally in the workspace, when the accident occurred. She denied that she had moved the chair over to the right of the workstation so as to be on top of the cashbox. She also contended that the workstation in the “express checkout”, was very narrow and required that a sales assistant remove the chair from the workstation, before entering it, as it was not possible to enter the station with the chair in situ, as this space was too narrow.
19. Mr. Jack O’Reilly, the plaintiff’s engineer, described the construction and function of the chair and the workstation in question. There were two levers to the right hand side of the chair, one to the front to adjust the height of the chair and one to the back to adjust the back of the seat. He stated that the lever used to raise and lower the height of the chair projected 30mm beyond the edge of the seat. It would be approximately four inches from the steel cashbox, when the chair was located in the centre of the workstation. If an operative, for whatever reason, brought the seat over to the right of the workstation, rather than the left, the lever would be directly over the top of the cashbox. If this happened, the lever would come into contact with the top of the cashbox when lowered, potentially trapping the operative’s fingers.
20. Mr. O’Reilly stated that the chair was of a standard design. It was commonly used in shops and offices throughout the country. He explained the mechanical operation of the chair, stating that the cylinder below the seat, was equipped with a spring, such that when the operative pulled the lever upwards and sat on the seat, the spring compressed, lowering the height of the seat. When they removed their weight from the seat, while pulling the lever, the seat would rise. The height on the seat was usually adjusted by an operative putting their right hand down the side of the seat and onto the lever; they would raise the lever and adjust the seat to the required height, using their body weight to cause the seat to descend. He stated that an experienced operative would not normally look down at the lever when adjusting the height of the chair. In a checkout situation, the operative’s focus would have been on the checkout and not on the operation of the lever. Using the photographs taken on the day of the accident, the plaintiff’s engineer estimated that the cashbox projected about two inches beyond the self on which it was sitting. He stated that if an operative placed their seat too far to the right hand side of the workstation, then the lever, as it projected 30mm beyond the edge of the seat, would be in a position directly over the cashbox, causing a risk of entrapment. Mr. O’Reilly stated that this risk of entrapment should have been eliminated by moving the cashbox back, so that it would be flush with the till above, or moved to the left hand side of the operative, where there was no adjustment lever on the chair.
21. Mr. O’Reilly was questioned by defence counsel about the routine nature of this task; to which he replied that the entrapment occurred, because the seat was moved a very small amount off centre to the right. Employers were required to carry out a risk assessment for the avoidance of risks in the workplace. Mr. O’Reilly stated that what had existed in this case, was a clear risk that should have been addressed by the employer. Employers had a duty to ensure that risks to the health and safety of their employees were avoided, even where the employee was distracted by other matters.
22. In his report, Mr. O’Reilly acknowledged that it was clear that employees would change frequently at any particular checkout and these employees would require their seats to be at different heights and as a result, height adjustable seating was appropriate. If this workstation had been properly risk assessed, the fact that the seat could have caused an entrapment, should have been seen and should have been dealt with, either by moving the cashbox, or recessing it within the shelving. Mr. O’Reilly stated that in preparing a safety statement, an employer was required to carry out a risk assessment, under which the risks arising were to be addressed. Preventive measures in compliance with the Safety, Health and Welfare at Work (General Application) Regulations 2007 should have been implemented. He stated that the primary purpose of a safety statement was the avoidance of the risk of injury to the employee. He stated that an assessor, when assessing this workstation, should have seen the entrapment risk that existed in the workstation.
The Defendant’s Case
23. In its defence delivered on 29th October, 2015, the defendant stated as follows:-
“The grounds upon which the defendant claims that it is not liable for any injury suffered by the plaintiff (the existence of same being denied) are as follows:-
a. The incident which occurred was in the nature of an unfortunate accident in respect of which this defendant does not have the alleged or any culpability;
b. The occurrence of the said incident was not foreseeable or reasonably foreseeable on the part of the defendant, its servants or agents;
c. Further or in the alternative, the plaintiff in respect if such injury, loss or damage as she may have sustained (and no concession being made in that regard) was the author of her own misfortune;
d. Further or in the alternative and strictly without prejudice to the foregoing, the plaintiff was guilty of contributory negligence.”
24. The grounds upon which the defendant alleged that some or all of the personal injuries contended for by the plaintiff (the existence of which injuries were denied) were occasioned in whole or in part by the plaintiff’s own acts, were pleaded as follows:-
“The grounds upon which the defendant alleges that some or all of the personal injuries contended for by the plaintiff (the existence of which is denied) were occasioned in whole or in part by the plaintiff’s own acts:-
a. Lowered the chair in circumstances where it was situate at or over the steel cashbox.
b. Failed to ensure that the way was clear prior to the lowering or attempted lowering of the chair;
c. Placed her hand between the base of the chair and the steel cashbox;
d. Failed to use her common sense;
e. Failed to bring her knowledge and experience of the work place to bear;
f. Failed to appreciate that the chair once the lever was pulled, would lower;
g. Failed to consider what the effect of the lowering of the chair would be having regards to the surrounding circumstances;
h. Exposed herself to the risk which materialised.”
25. The defendant contended that there was a necessity in locating the steel cashbox in the region in which it was located, to the right of the sales assistant and under the till, as it allowed a sales assistant to easily, and with minimal security risk, lift the till tray from the steel cashbox into the till box. The location of the steel cashbox in this area, was to prevent staff having to walk around with large amounts of cash and also to facilitate the large numbers of staff changes at the checkouts daily. Counsel for the defendant accepted that the cashbox at “express checkout No. 1” was broken at the time of the accident.
26. Counsel for the defendant accepted that the express checkouts were a confined workspace. Mr. Donal Terry, the defendant’s engineer, stated that the type of work undertaken in these workspaces necessitated that these be a confined workspace. In the traditional conveyor belt checkouts, still in operation in the store today, items would be left on the belt by the customer, the item is then taken off the belt by the sales assistant and scanned or weighed as necessary. The item was then placed on a different conveyor belt, or was pushed down a slight slope by the sales assistant, returning the item to the bagging area. In the express checkout situation that was in operation in the Dunnes Stores retail outlet in Kilkenny, which Mr. Terry described as a “basket driven transaction”, the customer placed their basket into a depression or well to the right of the sales assistant. The sales assistant then picked the items from the basket for scanning or weighing and returned it to the customer in an alternative depression or well to the sales assistant’s left. It was the defendant’s case that the workspace in this checkout was necessary smaller than on the belted checkout, as the aid of a conveyor belt was not provided for in this type of checkout, necessitating that the sales assistant would pick items out of and drop them into the wells on either side of them. If this workstation was a wide space, it would necessitate the sales assistant stretching to reach into the well to pick items from it and stretching to place the items back in the returning well. This would have constituted a risk of injury to an operative’s neck, shoulders and upper back.
27. Mr. Terry described the “express checkout no. 1” workstation, as set out in Ms. Maher’s photographs taken on the day of the accident. The optical scanner was located left of centre line of the scales, to allow an operative to use the till screen with their right hand. He described this is as an ergonomically designed workstation, that was built around the operative, who was centrally located in the workstation. Mr. Terry calculated, based on Ms. Maher’s photographs, that the workstation was approximately 2ft, 4 inches wide. He stated that the chair was moved approximately six inches to the right between photographs no. 3 and 4. It was this movement that resulted in the lever on the chair being placed over the steel cashbox. He stated that moving the chair over 6 inches to the right, as had been done in photograph 3, negated the usefulness of the ergonomic workspace. He stated that the scanner, scales and till screen were located in front of the operative for convenience. The till box was located to the right of the operative, as there would only be one cash transaction with every sale, but numerous items to scan and weigh. The defendant’s engineer stated that for the entrapment to occur, the chair must have been dramatically brought to the right of the workstation. Mr. Terry stated that in compliance with health and safety provisions, an employee should be seated where it was easiest to carry out the operation when sitting. In evidence, the plaintiff agreed that it was important that she did not have to reach too far to pick up items and that was why the express checkout had been organised as it was. She agreed that the cashbox had an important security function. She accepted that she was very familiar with the layout of the express checkout and that the cashbox was fixed in the position that it was in.
28. Ms. Maher, the security manager, stated that the plaintiff was not replaced by another member of staff in “express checkout no. 1” after the accident. She stated that when she went to the checkout, some ten minutes after the accident, there was one girl at the other “express checkout”. She stated that she placed the chair that was at “express checkout no. 1” in the cash office, with a note specifying that it was not to be returned into circulation. Ms. Maher stated that she used an identical chair to carry out the reconstruction soon after the accident, for the purposes of her photographs. She stated that as security manager, it was her role to investigate accidents in the immediate aftermath thereof. To this end, she would fill in an accident report form, take statements from relevant witnesses, preserve any physical evidence, and take photographs showing the locus of the accident. Ms. Maher also stated that part of her role as security manager, was to receive any complaints that were made by staff in relation to broken equipment. She would then resolve these issues. She stated that she had no recollection of any chair being brought to her attention as being broken, in the years that she worked in the Dunnes Stores Kilkenny retail outlet.
29. The H.R. manager at the time of the plaintiff’s accident, Ms. Fiona O’Reilly, stated in evidence that at each express checkout, the operative using the checkout would be changed eight to nine times per day, as these checkouts were particularly busy. Dunnes Stores did not allocate a particular checkout to a particular member of staff. They would be rotated among all the checkouts. Counsel for the defendant stated that based on the figure given, of the operatives changing eight to nine times per day, the chairs in the “express checkout” could be adjusted up to 6,000 times per year to facilitate the changing of operatives.
30. Ms. O’Reilly stated that she had attended all the staff “communication meetings”, where any complaints in relation to equipment would be brought up. There had not been any complaints that any of the chairs were defective. There had been complaints that there were not enough chairs on the shop floor. As a result, they had ordered more chairs. However, she was adamant that there were never any complaints about the operation of the chairs.
31. The plaintiff at the time of the accident, had worked in the store for six years. She stated that she had never had any difficulty in adjusting the height of her chair before this accident. She stated that she only had difficulty on this occasion, because the chair had lowered at a faster speed than she had anticipated. The plaintiff also stated in cross examination, that she had no knowledge of any other sales assistant having any difficulty with the adjustment of the height of a chair, or suffering an entrapment injury similar to her own.
32. Counsel for the defendant put it to the plaintiff that for the entrapment to have occurred in the manner she described, the plaintiff would have had to have moved her chair off centre to the right of the workstation. She further put it to the plaintiff, that this accident could have been easily avoided, if she had moved her chair back to the centre, or to the left of the workspace, where there were no potential obstacles. The plaintiff accepted the contention put to her by counsel for the defendant, that people occasionally have accidents that were not the fault of anyone in particular. However, she stated that the cause of her accident was the fact of the chair lowering quickly and the steel cashbox being in a location that created a risk of entrapment.
33. Mr. Terry, the defendant’s engineer, discussed how risk assessments are carried out. He stated that the number of accidents would be divided by the number of times an operation is conducted, to develop a risk assessment. He stated that all movements of a moving object near a fixed object create a potential risk of entrapment. It was the degree of this risk, that was the key consideration. Mr. Terry stated that hazards were numerous in a working environment, especially in relation to moving objects coming into contact with stationary objects. He distinguished between a hazard and a risk, stating that the potential for the hazard to operate is the risk. There were numerous hazards in any workplace. Moving devices in a fixed workspace created the hazard of entrapment. He accepted that the cashbox was an unnecessary hazard, but stated that the absence of any prior accident was informative in the concept of risk and the risk assessment. There was only one moving part in this workstation, the only variable in the workspace was the chair itself.
34. The defendant’s engineer stated that there was no suggestion at the inspection, that the chair which they inspected, was other than the chair which had been involved in the plaintiff’s accident. He stated that the chair which he had inspected was working properly. He stated that the use of this type of chair, was almost universal in retail and office workspaces.
35. Mr. Terry stated that he did not consider the plaintiff’s workstation to have constituted a sufficient risk of entrapment, for the employer to have to alter the configuration of the workstation. He considered the workstation, as pictured in photographs 1 – 13, a safe working environment. He stated that he had never seen an accident of this nature before, nor had he been told of any accident of this nature by any colleague of his. Mr. Terry stated that he was of the opinion that the system of work in operation at “express checkout No. 1”, was safe. As a risk assessor, he would not have recognised the potential entrapment that occurred, as a risk. It was put to Mr. Terry that the hazard could have been removed by carrying out remedial work to the workstation. He stated that he did not believe that the workstation created a risk and, therefore, remedial work did not need to be carried out to it.
Conclusions
36. This action arises out of an accident which occurred on 11th December, 2013. At that time the plaintiff, while acting in the course of her employment as a sales assistant in the Dunnes Stores shop in Kilkenny City, suffered injury while lowering the height of the chair on which she was going to sit at the checkout. At the time, she was working at “express checkout No. 1”. This was a somewhat confined workstation. She placed her right hand beneath her chair and pulled the height adjustment lever. The plaintiff says that this caused her chair to descend rapidly, causing her fingers to become trapped between the underside of the lever and the top of a steel cashbox, which was on shelving to her right.
37. While the defendant accepts that the accident occurred in the manner alleged by the plaintiff, it denies that the accident was caused due to any negligence or breach of duty on its part and further denies that the particular accident was reasonably foreseeable. There is also a plea of contributory negligence against the plaintiff.
38. The first issue which the court must decide, is whether the chair, which was examined by the plaintiff’s engineer in May 2015, was the chair, which the plaintiff had been using on the day of the accident. The workstation at which the plaintiff had been working, had not been taken over by any other employee in the immediate aftermath of the accident, so there was no need for any other employee to interfere with, or move, the chair. The court accepts the evidence of Ms. Maher that within approximately ten minutes of the accident, she went to the plaintiff’s workstation and removed the chair. She retained the chair in a back office. She put a notice on it, stating it should not be put back into circulation.
39. In these circumstances, the court finds that the chair which was examined by the engineers in May 2015, was one and the same chair as used by the plaintiff at the time of the accident. As both engineers were in agreement that the chair which they inspected was in proper working order, the court finds that the accident was not caused by any defect in the operation of the chair.
40. It was accepted at the hearing, that the particular cashbox, against which the plaintiff’s fingers became trapped, was not working on the day of the accident. It appears that the doors thereon were malfunctioning. However, the cashbox was a stationary object, which was bolted to the shelf on which it stood. The fact that the cashbox could not be used on this particular occasion, due to the defective condition of the doors thereon, was not relevant to the circumstances of this accident.
41. The court is satisfied from viewing Ms. Maher’s photographs, that the cashbox jutted out from the edge of the shelf on which it stood by some distance. It is very difficult to give an accurate assessment of this distance, but doing the best that I can, I would estimate the distance at approximately one inch or perhaps a little more. Mr. Terry, the defendant’s engineer, accepted that the cashbox was sitting proud of the shelf, but thought that it was flush with the position of the till box on the cash register above it. The fact that the cashbox was sitting proud of the shelf, would have meant that it was possible for the plaintiff to move her chair close to the shelving to her right, and thereby put her hand, when holding the lever, in a position above the cashbox itself.
42. Some complaint has been made by the plaintiff that the workstation was somewhat cramped. I am satisfied having regard to the evidence given by Mr. Terry that this workstation was an ergonomically designed wraparound workstation. It was of a somewhat confined design. This was due to the fact that it was designed for customers, who would have a basket containing a relatively small number of items. The basket would be put into a well to the left or right of the checkout operative. The operative would pick up items from the basket, place them on the weighing scales or across the scanner and then put them into the well on the opposite side, where they would be put into a bag by the customer. The operative would be working from a seated position. To avoid a strain injury to the neck, shoulders and upper back, it was necessary to design the workstation such that the two wells, to either side of the scanner, were close together. Accordingly, I do not accept that there was any negligence in the design of the workstation itself.
43. The court accepts that this accident could have been avoided if the cashbox had been placed on a shelf to the left of the checkout operative. However, that is very much a counsel of perfection, made with the benefit of hindsight. The duty on an employer is to take reasonable care to prevent injury to an employee from a cause that is reasonably foreseeable. Or to put it another way, the accident must have been reasonably foreseeable. In this case, the accident could only have occurred if the operative chose to alter the height of her chair, while the chair itself was positioned at the extreme right of the workstation. The normal position for the chair was in the centre of the workstation, in front of the weighing scales and the scanner. The plaintiff would have been looking at that area when adjusting the height of the chair to the required height. If the chair was positioned centrally within the workstation, which was the normal position for it to be in, the operative could adjust the height of the chair without any danger of entrapment to her fingers, between the height adjustment lever and the cashbox. While the plaintiff did not have to move the chair far, to be in a position of danger of entrapment, some two to four inches would have sufficed, it still required the chair to be positioned significantly off centre for the danger of entrapment to occur.
44. In looking at the question of foreseeability of this injury, the court has had regard to the evidence of Ms. Fiona O’Reilly that in her seven years experience with Dunnes Stores, she has never come across this type of accident before. The court also accepts the evidence of Mr. Terry, that in his twenty years experience as a forensic engineer, he has never seen this type of accident, nor has he heard of any similar accident. He was of the opinion that this accident would not have been reasonably foreseeable to any employer carrying out a risk assessment of the system of work carried on at this workstation.
45. The plaintiff also fairly conceded that she was not aware of any similar accident to any of her fellow employees. The court has also had regard to the fact that at the time of this accident, there were two express checkouts in operation in the Kilkenny shop. The shop was open from 08:00 to 22:00hrs each day. The checkout operatives at the express checkouts, were rotated every 60-90 minutes. Thus, it was probable that there were a considerable number of height adjustments made to the chairs during any given year. The fact that there was no similar accident to that suffered by the plaintiff, is significant.
46. Taking all relevant matters into consideration, the court finds that this accident was not reasonably foreseeable. It was an unfortunate accident, which occurred in very unusual circumstances. However, it was not one that was reasonably foreseeable to anyone looking at the system of work carried on at this workstation. Accordingly, I must dismiss the plaintiff’s case against the defendant.
Kenny -v- Cowley
[2006] IESC 37
Date of Delivery: 21 June 2006
Court: Supreme Court
Composition of Court: Denham J., Hardiman J., McCracken J.
Judgment by: Denham J.
Status of Judgment: Approved
Judgments by
Result
Concurring
Denham J.
Appeal allowed – vary High Court Order
Hardiman J., McCracken J.
Outcome: Allow And Vary
Judgment delivered the 21st day of June 2006 by Denham J.
1. Appeal
This appeal relates to an assessment of damages. James Kenny, the plaintiff/appellant, hereinafter referred to as the plaintiff, submitted that the High Court erred in the assessment. Liability is not an issue.
2. Collision
The case arose out of a collision with cattle. The plaintiff was driving his car on the evening of 10th April, 2000, at Rathlee, Easkey, Co. Sligo, when his car collided with cattle, owned by John Cowley, the defendant/respondent, hereinafter referred to as the defendant, which had strayed and blocked the highway.
3. Special Damages
The matter came before the High Court on the 16th and 20th July, 2004. Special damages were agreed at €4,480.
4. General Damages
At issue in the High Court were general damages, a claim arising out of physical injuries and a claim for loss of earnings in the future. No claim was made for loss of earnings to the date of the High Court hearing.
5. High Court judgment
The High Court stated that the plaintiff had a perfectly genuine claim against the defendant for his injuries sustained in the accident. The learned High Court judge expressed concern in relation to a claim for €550,000 for loss of employment into the future in view of the employment history of the plaintiff prior to the accident. The High Court stated, quite correctly in my view, that the plaintiff was to be treated under the “eggshell” rule. The learned High Court judge accepted that the plaintiff suffered pain in the past and would in the future. It was noted that the plaintiff made no claim for loss of wages in the past. The High Court agreed that there was an entitlement for loss of wages in the future based on evidence, which, however, the learned High Court judge considered was not good enough and he did not allow for loss of wages in the future. As to general damages, for the injuries sustained to date and into the future, the High Court allowed a sum of €90,000. Special damages being agreed at €4,480, there was a judgment for €94,480.
6. Grounds of appeal
Against that judgment the plaintiff has appealed to this Court. Ten grounds of appeal were filed, as set out below:
(a) The learned Trial Judge failed to have proper regard to the evidence adduced by and on behalf of the plaintiff in respect of his injuries and losses.
(b) The learned Trial Judge erred in fact and in law in assessing general damages for the past and the future in the amount of €90,000.00 given the uncontroverted evidence of the effects of the serious injuries on the plaintiff.
(c) The learned Trial Judge erred in fact and in law in rejecting the plaintiff’s claim for:
(i) loss of future income for the plaintiff and or in the alternative;
(ii) loss of opportunity in the future for the plaintiff.
(d) The learned Trial Judge was wrong in law in refusing to apportion the award of general damages into categories for general damages to date and general damages into the future.
(e) The learned Trial Judge did not give the plaintiff a fair trial on any of the relevant issues before the Court.
(f) The learned Trial Judge erred in law and in fact when referring in his judgment to a claim of the plaintiff for €550,000.00 and in his determination that “the plaintiff has chosen to hoodwink” the Court.
(g) The learned Trial Judge erred in law and in fact in rejecting the evidence of the Vocational Assessment witness Consultant and in his assessment of her evidence.
(h) The learned Trial Judge erred in law and in fact in his judgment in finding and referring to the possibility that “this case would have been settled on Friday had an honest and reasonable approach been adopted by the plaintiff” when there was no evidence or suggestion by the defendant or by the plaintiff to the learned Trial Judge of same.
(i) The learned Trial Judge erred in his treatment of and the weight which he attached to the questions of Senior Counsel for the Defendant in cross-examination of the plaintiff and particularly when the defendant failed to call the witnesses purportedly available to the Defendant to support the allegations of Senior Counsel for the defendant in cross-examination.
(j) The learned Trial Judge erred in law and in the exercise of his discretion when disallowing the costs of the second day of the trial and the expense of a witness and proposed witness for the Trial particularly when:
(i) the trial only commenced at 2 p.m. on Friday the 16th of July 2004 through no fault of the plaintiff.
(ii) the trial was interrupted by the learned Trial Judge for approximately ten minutes on Friday the 16th July 2004 in order to ensure that the parties agreed a timescale for the adducing of evidence from the Vocational Assessment consultant,
(iii) the trial ended at 2 p.m. on Tuesday the 20th July 2004 when Junior Counsel for the defendant without any advance warning indicated that no evidence would be called on behalf of the defendant.
7. Issues
7.1 Special Damages
There is no issue as to the special damages in this case; they remain at the figure of €4,480.
7.2 General Damages
The issue for the Court is one of general damages. The general damages relate essentially to loss and damage arising from the injury to his eye and loss of earnings into the future.
7.3 Damage to eye
First I shall consider the issue relating to the damage to the plaintiff’s right eye. As the learned trial judge stated, the plaintiff has to be treated under the eggshell principle. This arises because of the previous problems with his left eye. Prior to the accident the plaintiff had a lazy left eye and he depended on his right eye. His right eye was damaged consequent on the accident, and he has now very limited sight in it. In addition he has double vision which affects his left eye and gives him dizziness. He uses a blank darkened lens to cover his right eye as this cuts down on the double vision and dizziness. He is now dependent on the left eye. However, the sight in this eye is not good.
The uncontroverted medical evidence before the High Court was that:
“This patient has a background of high myopia or shortsight and a lazy left eye (amblyopia i.e. impaired sight). He sustained a whiplash injury which was followed two days later by a retinal detachment in the right which required surgical repair. He has been left with impaired vision in the right and existing impaired vision in the left. He has a constant large right upward deviation of the eye, resulting in constant doublevision and an unsightly appearance.
He reports being able to function as a mechanic prior to the accident but now his vision is poor in both eyes and he has doublevision in them as well and both of these factors impair his ability to work, so he has become unemployed and cannot drive.
The injury itself did not directly cause the retinal detachment but did so indirectly by the whiplash injury causing severe shaking of the head and disturbance of the vitreous jelly in the right eye leading to a tear in the retina. The patient was already at risk from retinal tears because of his high myopia but probably would not have developed a retinal detachment if he had not sustained a whiplash injury. The doublevision is partly due to his impaired sight and pre-existing lazy eye. However, the restriction of movement of the right eye and the drifting upwards of this eye is also a well-known complication of retinal detachment surgery. I did not have the opportunity to assist this man’s motility prior to his retinal detachment or his injury, so I cannot describe the relative contributions of the various factors involved in this. At any rate, all of the factors involved are related directly or indirectly to his injury.
He is now developing a cataract in the right eye, which will further impair his vision in this eye increasingly over the next couple of years.
I do not believe the vision in his previously lazy left eye will improve spontaneously because the impairment of vision in the right eye is not sufficiently severe to allow the left eye to take over.
This patient has severe visual impairment in his previously better eye (the right eye) as a result of retinal detachment following a whiplash injury. In addition to impaired vision in each eye, he has debilitating and constant doublevision. This has prevented him from working or driving. It is a constant source of difficulty for him in everyday life. Closing one eye to get rid of the doublevision further impairs his overall vision by effectively making him one-eyed. The better of the two eyes has poor vision of a level no better than 6/12, which would be barely acceptable for driving, if it were present in both eyes. The outlook for visual rehabilitation is poor. Vision in the right eye will not improve further in my view and that in the left is unlikely to do so either. His doublevision may be amenable to surgical correction but it may require several operations and there is approximately a 50-60% chance of him achieving single vision with or without the use of additional prisms in his glasses.
The reason for this poor success rate is that eye muscle problems developing after retinal detachment surgery are notoriously difficult to solve and the fact that his vision is poor in both eyes mitigates against him achieving binocular vision, which requires good visual acuity in each eye.
. . . “.
Thus the plaintiff is essentially in the position where an eye has been lost, and he is relying on the vision of an eye with poor sight, and he suffers from double vision.
As to the current value of a case where an eye is lost, I sought to refer to the P.I.A.B. Valuation Book. However, I understand that it does not quantify damages for the loss of an eye, as yet. From previous experience with such cases it appears to me that a figure of €90,000 is significantly too low a figure for such damage and loss, especially in the circumstances of the plaintiff.
In addition, the plaintiff suffered other less serious injuries which should be considered. These injuries were soft tissue injuries to his back and neck and a depression which followed the events.
Consequently, considering both the eye and other injuries I am satisfied that there was an error in the level of damages awarded by the High Court.
7.4 Future loss of earnings
The second major issue is the value of the loss of the plaintiff’s future earnings. In the High Court counsel for the defendant objected to an actuarially based claim.
The learned High Court judge held that on the authority of Reddy v. Bates [1983] I.R. 141 that the basis for mounting an actuarial claim had not been made out and he deemed the defendant’s objection sustained. It was directed that Mr. Logan not be called to give evidence. The learned High Court judge stated that this did not mean that there was not a claim into the future, but he held it would not be on actuarial evidence.
I would affirm this decision of the High Court. There was no grounds laid for an actuarial approach to the assessment.
The position as to loss of earnings in the future has to be considered in all the circumstances of the case. It was stated by the plaintiff that following serious problems with his kidneys in 1995/1996 he had largely ceased to work and only ‘tipped around’ mending engines locally for friends for which he received occasional payment. The evidence was that for three or four years prior to the accident the plaintiff was in receipt of unemployment benefit. However, it was the plaintiff’s case that, in 1999 he had taken all the necessary steps to fit out a workshop and commence the business of marine engine servicing and repair with assistance from his father-in-law and a loan from a local bank.
On behalf of the defendant it was submitted that the plaintiff did not work before the accident and was now doing as much work on engines as he did before the accident.
The evidence established that the plaintiff was not a trained mechanic. Thus a figure of €573,300, based as it was on a trained person’s work, bears no relationship to the situation. The Assessor’s Report of Ann Doherty concluded:
“Save for the accident he could now be working on servicing different engines. Seasonally there are good opportunities for service/repair of marine engines. It is difficult to give a precise level of earnings. The minimum hourly rate if €7.00 and the minimum rate for a mechanic is €15.50 per hour. If working on boats the rates are substantially higher.”
It was on foot of such a conclusion that the figure of €573,300 was promulgated
In her report Ms. Doherty noted that the plaintiff finished formal education with his Group Certificate. She gives his employment history, 1986 – 1991, as part-time fishing with his father, and 1990 – 1991 as ‘Carthys Road and WaterWorks’. It is important to note that she did not state that he was a mechanic. Rather the report recites:
“Over the years he had a keen interest in engines, marine and cars, and gained experience with his cousin. His father-in-law had given him a workshop to start up his own business, repairing engines. He had bought tools and equipment. In 1999 he joined the Coast and Cliff Rescue and was advised he would be sent on courses to deal with boat mechanics etc. He is also paid for call outs”.
In evidence she stated it was not necessary to have a certification as a mechanic to do the work envisaged, that there would be good seasonal business – on the recreational side and for the fishing. She gave evidence that the loss of the right eye, the loss of the eye on the dominant side, would decrease his field of vision and affect his manual dexterity, which would affect him in areas of work. As to work in general in the Killala area, she was of the opinion that his chances were not great. She was of the opinion that with the loss in his right eye, and his difficulties with the left eye, and his geographic location, the effects of the accident were catastrophic, that his chances of getting work were very poor. However, this evidence has to be viewed in the circumstances that he had not been working for years prior to the accident, largely owing to unrelated illness.
Thus, the analysis of loss and damage as regards future earnings is hampered by the previous history, lack of precise information as to his work, the fact that he was ill for several years and off work, the fact that he was receiving State benefit prior to the accident, and the unhelpful evidence as to a mechanic’s earning power which bore no relation to the plaintiff’s situation.
The picture painted is of a man who has not been working consistently, who planned to establish a business but of which there was no evidence, a man who because of illness has been receiving State benefits, but who did do some bit of work, variously described – such as ‘tipping around’. Altogether it was not evidence which established a consistent work pattern of regular paid work. There was evidence that the plaintiff did the odd job before the accident. It may be that he did very few jobs. The evidence was that ‘he did lots of tipping around’, ‘he did the odd job’. The evidence was not such as would base an actuarial report. Consequently, as stated previously, I am satisfied that the learned trial judge was correct in holding that a basis for mounting an actuarial claim had not been made out. The learned trial judge pointed out, correctly in my view, that this did not mean that there was not a claim into the future. Thus, it is necessary, on the evidence before the Court, to consider this aspect of the claim.
While the plaintiff gave evidence of taking initial steps to set up a business, there was no evidence of it being established. I am satisfied that the evidence showed that the plaintiff did some sporadic work which paid him irregular sums of money.
7.5 Hoodwinked
The High Court stated that the plaintiff had chosen to hoodwink the Court with a claim for loss of earnings into the future of €550,000. However, on reading all the evidence, I am satisfied that the plaintiff’s evidence did not advance such a claim. The figure arose from an assessor’s report which was partly based on incorrect information – that the plaintiff was a mechanic.
This concern by the High Court, that it was being hoodwinked, highlights the need for care by legal advisers of a plaintiff in preparation of a case. The law as to exaggerated claims is a matter which should be addressed at the preparation stage by legal advisers with a plaintiff. I am not satisfied that there was any collusion by the plaintiff so as to make an exaggerated claim. While there was absolutely no basis for a claim for €550,000, or indeed any significant sum of money for loss of future earnings, in the circumstances of the case that figure should not be a basis either to award the plaintiff or to penalize him. I am satisfied that this is not a concocted claim, a fraudulent claim. Nor is it a case where the injuries were exaggerated by the claimant because of a subjective belief that the injuries have had a worse effect than they have. Nor is it a case where the plaintiff has deliberately exaggerated his injuries. Thus the decision of Shelley-Morris v. Bus Atha Cliath/Dublin Bus [2003] 1 IR 232 does not apply.
The evidence prepared as to future loss of earnings bore little relationship to the position of the plaintiff. However, from the evidence of the plaintiff, I do not believe he was seeking to establish a fraudulent claim. Problems arose from the preparation of the evidence for the trial. In view of the developing law on the issue of exaggerated claims it behoves legal advisers to address such issues, for, amongst other results, an unrealistic approach to expert evidence which is not relevant could give rise to an entire claim being deemed fraudulent. However, in all the circumstances, it is clear that this is not such a case.
7.6 Settled
On behalf of the plaintiff it was submitted that the High Court erred in finding that this case would have been settled on Friday had an honest and reasonable approach been adopted by the plaintiff. I am satisfied that this was not the situation. Even if it had been, which it was not, it would not have been a factor detrimental to the plaintiff’s claim. The facts were that the case commenced on Friday the 16th and, the evidence not having been completed, it resumed on Tuesday 20th. There were no grounds to indicate that there were any matters relating to a settlement on Friday in which the plaintiff had not taken a reasonable approach.
7.7 Taxation
It may be that there is an issue of taxation on the little work the plaintiff did over the years prior to the accident. This does not necessarily mean that such sums may not be considered by a court on an assessment: Downing v. O’Flynn [2000] 4 IR 383. In the circumstances of this case it is not a relevant factor.
8. Decision
8.1 For the reasons given I am satisfied that the award of €90,000 for general damages was an error. The sum was inadequate for injuries alone, the injuries being primarily the loss of a right eye, the necessity of relying henceforth on an impaired left eye, double vision, soft tissue injuries and depression. It appears to me that a figure of €120,000 would be more appropriate in all the circumstances of the case.
8.2 There was no claim for loss of earnings in the past, and there was no basis for an actuarial based claim for the future. While the plaintiff had a genuine claim there was very little evidence to rely upon. The plaintiff has been on social welfare payments for the past few years. The evidence established he did a little work ‘tipping around’. In the circumstances I am satisfied that the plaintiff is entitled to a limited sum on foot of this loss, which I would determine as €40,000.
8.3 The issue of costs of the High Court should be addressed with the matter of the costs of this appeal, after delivery of the judgment.
9. Conclusion
For the reasons given I would allow the appeal, and in place of the award of the High Court make a total award to the plaintiff in the amount of €164,480.
Reeves v Rogers
[2018] IEHC 451 (25 July 2018)
JUDGMENT of Ms. Justice O’Hanlon delivered on the 25th day of July, 2018
1. The court has already dealt with the liability issue between the parties at the request of the parties, and delivered judgment on this issue on 23rd day of January, 2018. This matter has now been heard before this court for the purposes of assessment of damages. The accident which gave rise to these proceedings occurred on the 21st day of March, 2008. This court took the view that the plaintiff’s evidence to the court correctly represented how the accident occurred. The plaintiff was the sole occupant of his motor vehicle at the date of the accident and a truck appeared to scrape his vehicle from the rear to the front, forcing his car off the road surface. At the point of exit from two lanes, with a yield sign at the locus on to a roundabout, there was sufficient room for both vehicles. The court found that the plaintiff had not broken the rule of the roads nor was he on the yellow hatch portion. The court found that it was highly probable that this position, ready to take off to the left on to the roundabout, represented the correct version of events as to how accident occurred.
2. In opening the case, counsel for the plaintiff explained that there was now a full fight on the issue of quantum. After the accident the plaintiff was extremely upset and agitated and presented to his general practitioner with psychological symptoms. He was given Xanax and he took that medication for a two-week period. He later returned to his general practitioner with symptoms of pain and discomfort in the neck and paraesthesia of the left arm. One-month post-accident he had an MRI scan and objectively, there was pain and evidence of discomfort and evidence that he had suffered a significant injury as a result of this accident. He had no pre-accident difficulties in the neck of shoulder area. It is asserted on his behalf that his complaints are consistent with the original symptoms of paraesthesia in the left arm, small finger and finger beside it, and more symptoms on the left side. The court was told that Mr. Gilmore, Consultant, will be called. He will say that he has some degeneration of the neck and that this was aggravated by the accident. Dr. Conroy injected his neck and shoulder and will say that while the results were good, that they are wearing off now and that the plaintiff wants to be treated conservatively, although denervation was discussed with him and he will, therefore, face repeat injections every eighteen months.
3. The court was told that Mr. Meehan, Orthopaedic Surgeon, also treated the plaintiff and that he is now deceased. Dr. Spillane examined the plaintiff on behalf of the defendant. The plaintiff’s GP, Dr. Comer, will also give evidence. The court was told that in 2014, the plaintiff had to undergo a triple bypass operation for heart problems and that he suffered significant absence from work as a result. The plaintiff is described as being a little highly strung and that initially he missed three weeks of work with the impact to his neck but that he was adamant that he would continue to work and that the monitors and screens at work were causing him difficulty. The total items of special damage sought are €29,037.38.
The Plaintiff’s Evidence
4. The plaintiff confirmed his date of birth as 30th January, 1963, and that he was married with three adult children between the ages of 24 and 28 years. He further confirmed that he is a production technician with Visticom. This witness described how on 21st March, 2008, immediately following this accident, he was totally confused and very upset and did not sleep at all for that bank holiday weekend and was very emotional. He went to his general practitioner in an emotional state and was given Xanax for four to five days and that calmed him. He returned to his doctor with symptoms of pain in his neck and back and stiffness on the left side. He described himself as very nervous on the public road for the number of months. He went back to work because he had a child doing the Leaving Certificate and had to provide for his children, as they come first.
5. This witness described how it took him six months post-accident to calm down properly and that his neck was very sore and that his arm was numb down to the two smallest fingers on the left. That sensation never went away. He said that he cannot sleep on his left side. He sleeps on the right side but has some bother from that.
6. In the first twelve months, he attended a chiropractor concerning who diagnosed a curve in his neck. He got some relief and had nine to ten sessions with the chiropractor. He got physiotherapy later on.
7. Although this witness was in pain, he said that he had to provide for his family and that he found since the accident that he cannot look up too well. He could not go under machines at work, for example, for a couple of months but his colleagues assisted him.
8. This witness described how he had physiotherapy recently and a heat wrap and that he uses a high chair and that before the accident he never had problems on his left or right arm. He described his wife as doing anything that required heavy lifting and that he could not steer. He had a son who played rugby. He dropped him to the rugby but he could not take the same part in it. He had played golf twice a week pre-accident but he tried to play golf again nine months post-accident and found he was in too much pain. He tried at all costs to avoid aggravating his neck.
9. This witness said that he cannot get into a smaller car. For example, a taxi would cause agony for him lowering his head. He is a tall man, as the court has noted, and he said that although he used to go rugby matches on a high stand, he now watches down at the lower level in line with the pitch. He has also bought a car which is higher and that has mirrors because he cannot turn to the right.
10. This witness described how his neck would lock and that in winter, he tried to avoid this happening as much as possible by wearing a scarf. In 2016, this witness began to have injection therapy. His nephew is a physiotherapist who showed him how to do exercises to strengthen his neck. He did these for five minutes every day. His wife used a rubber ball to work on his neck. He is 6ft 3 in height. In the course of his employment he attended the general practitioner who referred him for an MRI scan. He was given medication and sent to Dr. Conroy straight away. He felt that the first set of injections were working on the neck but not on the left arm.
11. The second set of injections, four or five, were given to him in the arm and it took about a week to ten days to work. He said for the last twenty months that he felt better as a result. He said he had pain in the last month and that he was due to see Dr. Conroy again. He said that possibility of denervation had been discussed with him by Dr. Conroy but that he would prefer not to have an operation and to have injection therapy. The fact that he had a bypass heart operation disinclines him to opt for an operation.
12. This witness told the court that it took him eight years to find Dr. Conroy and that it has made a significant different to the pain levels. The numbness on his left side has shown major improvement to what it was in October last year. He explained that he can play “pitch and putt” a little and that he now does 90% – 95% of chores in the family home.
13. Under cross-examination, he was asked what analgesics and physiotherapy were prescribed by his general practitioner and he said that he was given Xanax and what he thought was a muscle relaxant.
14. It was put to him in cross examination that he saw his general practitioner in January 2010 for a medical report after the scan but that from 24th April, 2010, he had not gone back to the GP at all. His response to this was that the general practitioner had advised physiotherapy and that his sister brought him to a chiropractor where he had eight treatments. He confirmed, however, that he got no treatment after that and never went back to the general practitioner. He confirmed that he was out for three weeks after the accident and he denied that he had been scheduled to be off in any event. He denied that he told Dr. Spillane that. He said he did work the night after the accident and on Saturday 22nd of that month. It was put to him that he told Dr. Spillane that he had a few days off as scheduled. He explained that his shift was scheduled for him to work Thursday and Friday of the week of the accident and that he had gone to Mr. Paul Murray for physiotherapy and not to his nephew.
15. He said that it was Mr. Meenan, Orthopaedic Surgeon, who suggested that he get more physiotherapy. It was pointed out that from January 2011 till 2016, he had no physiotherapy and no medical treatment and he confirmed that that was the case.
16. He confirmed that the general practitioner at work saw him in 2016 and caused him to have the second MRI scan which occurred in July 2012.
17. It was put to this witness that neither his GP nor his work doctor but rather his solicitor referred him to Mr. Gilmore in 2012. The plaintiff’s response to this was that he was given the same exercises by those he consulted and they all told him to do the same thing.
18. This witness was queried as to why he had left it so long to seek this treatment. He said that doctors cost €50 a visit and that he had two children in university and that the family has to come first. He confirmed, however, that the medical service and doctor at work was free and that he knew how to alleviate the pain and that that helped a lot. It worked until 2016.
19. This witness confirmed that Dr. McCurtain, his work doctor, sent him for the second MRI scan. He was asked what medication he took from 2008 until 2016, to which he replied he had taken paracetamol and has used home remedies and exercises. He said that he was still on painkillers and at the moment he was taking paracetamol.
20. It was put to this witness that his total chemist’s bill was €172.21 over a ten-year period. This witness responded that he knew how to control pain and he used paracetamol to keep it at bay. He said that there was always the numbness in the left arm which pains him. He said that he may have gone to a work doctor at one stage and that he did not claim for that. That was in 2015. It was put to him that eight sessions of physiotherapy helped greatly and he confirmed that was the case. It was put to him that he got no treatment from January 2011 and he said that he was doing it himself. He was asked about whether both hands were going numb and he said it was mostly on the left side.
21. The second MRI scan took place on 18th December, 2012. Mr. Gilmore reported compression of C5/C6. It was put to this witness that it was difficult whether to relate this to the accident or not and he said he did not know the answer to that. This witness said that in the year 2000, he had no neck pain. It was put to him that Dr. Stafford would say that there is degeneration of the neck on the C3/C4 and that there is growth on the spine which predates the accident and that his problems were pre-existing. He did not agree with that.
22. He saw Dr. Gilmore on 13th April, 2015, and was asked what treatment he got between 3rd July, 2012 and 13th April, 2015. He said that he only had home remedies, that he got no treatment and that in 2014, he had the bypass.
23. It was put to this witness that he told Dr. Spillane that his neck was better most of the time and for the period 2008 to 2011, but he denies this. He confirmed that he saw Dr. Conway on 23rd August, 2016 and that he had the third MRI of the humerus in September/October 2016. He confirmed that this examined the acromo-clavicular joint and was in July/August 2016, when he had injections and that he had no difficulties since.
24. Regarding the items of special damage, this witness said he never received any money for the car damage and that his insurance paid for the car. His insurance company was Royal Sun Alliance. He paid €200 excess on the policy.
25. It was put to this witness that he was not in pain but that he suffered from anxiety after the accident and that he had told Dr. Spillane that it was mild and that he had difficulty for two to three weeks, not six months. He denied this and he said he went back to work two to three weeks after the accident still in pain. He described himself as a regular walker for exercise.
26. It was put to this witness that in December 2008 when he saw Dr. Spillane for the first time, he thought that he was given a muscle relaxant for ten days after the accident. This witness said that he had ten sessions of physiotherapy which was not working and he went to the doctor.
Evidence of Dr. Comber
27. Dr. Comber gave evidence of his qualifications. He is a retired general practitioner.
28. This witness said that the plaintiff never went to him about his chest. When he went to see this GP on 25th March, 2008, he had not seen a GP for two years prior to this and for three years prior to that again. He said he may have renewed a script with another doctor in the practice and that he was not sure whether he saw some other doctor. Dr. Comber described how his secretary would often have telephoned about the renewal of a prescription for him to sanction same.
29. Dr. Comber described this man as a very infrequent attendee at his practice and that it was not all due to finances. He was what one would describe as an easy patient. He said on 9th May, 2006, there was an insurance policy attendance and on 25th June, 2003, he had come for low back pain. Following the accident, he described this patient as very upset. He prescribed Xanax. Three days later he came with pain in the neck and arm. He did not need hospitalisation or a referral to psychiatrist.
30. There was evidence of difficulty on the ulnar outside left hand going into the little and ring finger. This witness confirmed that he did the first report on 3rd January, 2010 for PIAB, using his attendances with the plaintiff and records in his office. He described him as having a stiff neck and pain on passive movement of the neck. He predicted he would need analgesics and physiotherapy. He confined this to physical problems and made no reference to mental state examination. He said he ticked two boxes concerning moderate difficulty in reaching and bending and severe difficulty in both lifting and carrying.
31. On 29th June, 2012, he did a follow up report in January 2010. He said the plaintiff had persistent pain of pins and needles in both hands with pain and stiffness of the neck. He had had a lot of physiotherapy and home exercises and heat wraps at night. He had attended the surgery for prescriptions.
32. Four years post the accident the plaintiff had chronic pain. His assessment was that it was unlikely that he would improve. He would be able to cope with work and day to day living. His examination at the time showed passive movement of the arm. Flexion and twisting was limited due to pain. Two years after the previous report, he found that he had pain and stiffness in the neck with a consistent clicking in the neck. He said only the patient would hear the clicking. A doctor would not necessarily hear it. He said he had to hire a car and found it hard to get in and out of car. He had to get a jeep-type vehicle. He bought an orthopaedic mattress. He confirmed that he had pins and needles down his arms in bed and had stiffness in the neck caused by the discomfort. He said six years post-accident, he felt it was unlikely to change. In June 2017, he said that the situation was unchanged. He stated that he had pins and needles, mostly confined to the left arm, and that he had pain on movement of the neck, mostly to the right. He had given up sport and just walked for exercise as per previous reports.
Under Cross-Examination
33. With reference to the 3rd January, 2010, he confirmed that the report he did was for PIAB at the request of the plaintiff’s solicitor. On 25th March, 2010 he said that four days post the accident, he was the first person to treat the plaintiff. He said he had no visible physical injury i.e. no bleeding or broken bones but that he was very agitated and that that was why he came to see the doctor. He referred him for an MRI scan. He was referred to an extract from his file dated 24th April, 2008 from Dr. Stafford to him. It was put to this witness that the injury to the neck was a result of a muscle spasm. This witness said that most people have some degenerative change. This witness agreed that there was nothing structural and that two years post-accident there was no reason to think it would go on as it did.
34. This witness was asked about his second report of the 29th June, 2012 and he explained that he saw the patient at the request of the patient’s solicitor who wanted another report.
35. He was asked about the fact that the patient had eight physiotherapy sessions and eight chiropractor sessions. This doctor said that anything over six sessions of physiotherapy would be deemed to be a lot and that he himself does not use a chiropractor. He said some people get benefit from it, that it is like faith/like counselling. This doctor confirmed that six weeks post the accident all anxiety had subsided. He confirmed that there was one other G.P. working in his practice and that sometimes if a person came in for a renewed prescription his secretary would check with him and then give out the repeat. He was asked what the reference on his file notes to K.R./L.O. where and he said it may be a reference from Barrington’s hospital. He confirmed that the patient would have to see him to get a report. He said he did not come for treatment for six years post the accident. He was not on medication that would need a prescription. There were two types of patients – those who came often and those who did not essentially. He said when people have pain they do all kinds of things. Some do not go to the General Practitioner when maybe they should and he would not find that unusual. He said himself gave up on conventional medicine in relation to this accident. This was in relation to being asked why, from January 2011 until 2016, he had not attended the General Practitioner.
Dr. Brian McNamara
36. This witness explained that he is a consultant in neurophysiology in University College Cork and in practices at the Mercy Hospital in Cork. This witness said that he undertook nerve conduction tests, looking at the outline function of the ulnar nerve on a referral from Dr. Conroy and trying to find the cause of tingling/paraesthesia of the hand. He saw the patient and did the first test on 13th June, 2018. He did four tests in all, on the medial nerve, the first on the first, second and third fingers. He then did tests on the ulnar nerve and the little and ring fingers of both hands. He said that on the ulnar side there was a problem, particularly at the elbow on each side. He said regarding the medial/radial side that there was a suggestion of carpal tunnel in the wrist. He confirmed later in his evidence that he does have carpal tunnel syndrome. He concluded firstly, that there was damage to the nerves on the elbow of both arms. This was contributed to by damage to the medial nerve at the wrist.
37. Secondly, there was impact at speed. He said the query was why there was no immediate reference to this medically. He said that often a person concentrates on their soft tissue injuries immediately post-accident. He said that within seven days of this type of problem they become conscious of it. He said it is not a black and white situation, that there were no symptoms pre-accident but post-accident there was paraesthesia.
38. This witness confirmed his finding that the plaintiff has carpal tunnel syndrome from an electro-physical point of view. He described three treatments for same:
1. Splinting.
2. Near nerve injection with a steroid or pain killer or a mixture of the two.
3. Surgical decompression with splinting, to allow the nerve to breathe.
39. Regarding the ulnar nerve there is a freeing problem which can be resolved by:
(a) Opening up the site;
(b) moving and protecting the nerve; and
(c) reducing movement at the elbow, for example, with splints and injecting near the nerve.
This witness described the medial and ulnar as supplying small vessels of the hand and that it depends on the sort of tasks in question one has to do, around the house for example, as to the impact.
40. He interpreted his own findings as a finding of carpal tunnel on the right especially and difficulty with the medial on both sides. He said he was interested in the General Practitioner saying that he found it hard to differentiate the right from the left side in this patient as giving more trouble because he found the difficulty on both sides.
41. He said that with a trauma one does get local nerve entrapment. He said he relies on two items, firstly the electro examination and secondly the unprompted story of pins and needles within a week of the accident. He said he sees patients with severe problems where they only seek comfort treatment after ten years whereas another person will come very quickly and that each patient is different and that he treats them as they come. He grades the carpal tunnel difficulty as moderate and if he were to use a pain level from 0 to 6 he puts the plaintiff at 3 on that range. He grades the ulnar problem as moderate also.
Evidence of Mr. Brendan Conroy
42. This witness qualified in medicine in Trinity College, Dublin. He has a fellowship in anaesthetics and is a specialist in anaesthesia and pain medicine. He practices in Limerick, Cork and Tralee. The patient was referred to him by his locum doctor, Dr. MacCurtain, who works in Castleconnell as well. He is well acquainted with her. He first saw the patient with difficulties of the left arm, left shoulder, and a clicking sensation in the neck which he compensated by turning using his waist. He marked him as 4 out of 10 in terms of the pain intensity although he said that is not a good measure for assessing chronic pain. He said that the last MRI scan showed facet degeneration and that he looks for a lack of fluid in the joint. He said it is quite tricky to treat the neck, that there is muscle tenderness around the shoulder going up to the neck and difficulties at the facet C5/C6 and C6/C7 on rotation to the left and right. He said he found, as his best guess scenario, micro-facial pain in the muscle and a thin inflamed membrane around the muscle. He said the plaintiff was a goal orientated person and he wanted to be back to work in as short a time as possible. He said he was a fairly stoic patient. He injected him again in August and saw him on the 23rd September. He improved for two months but in terms of his biceps and triceps he was failing miserably to relieve the pain. He said he did not have a good angle on some of his arm pain. He said where there is narrowness and boniness on the first MRI scan that one has a choice to deal conservatively or surgically with the matter. He said he would not be rushing to do an operation with a bypass patient.
43. He described given injections to the cervical facet joint. He said he gave the first injection to the C5/C6 and the second injection on both sides. He gave four injections in the neck area and a small injection to the rhomboid area. He did not see the patient for one and half years. He said he does not know, if a person does not come back, whether he has failed or the person has done well, or that maybe the patient did not like him. He said it is now going pear-shaped. He is always going to have to go down the route of least attendance with doctors and he said he is surprised that he has lasted that long without further intervention.
44. He described the cost of a day case for these injections, depending on which facility fee one is paying, as between €500 and €800 for a day case and between €300 and €600 for a doctor per visit.
45. He was cross-examined with regard to the 29th August, 2017 and he said at that point in time the plaintiff was not in pain but that the pain was beginning to come back.
Evidence of Dr. Alex Stafford
46. Dr. Stafford described how he had worked in the public sector as a consultant radiologist and had now retired from that and was in private practice as a radiologist.
47. He referred to the fact that he had carried out two MRI investigations, the first in 2008 and a further MRI in 2012. He amended his report to correctly reflect the date of this accident as the 21st of March, 2008 and he said that the first MRI scan was carried out by him on 24th of April, four and half to five weeks post-accident, in other words, within a close timeframe.
48. He found a loss of lordosis of the cervical spine and gave his opinion that this indicates a muscle spasm and that it can refer to muscular, ligamentous, soft tissue difficulties which more than likely were caused by some recent issue regarding the neck.
49. This witness found minor compression/deformity of the upper C4/C5 from the 2008 MRI. It would not be possible to put a date on when that occurred.
50. He said that there was recent bone injury with reference to the 2008 scan and that he did not see a sequence in it. It was an older machine than the one he used for the second MRI scan.
51. He found degenerative change of minor to moderate in the C3/C4, C4/C5, C5/C6, C6/C7 areas with no disc bulging, save for C6/C7, a minor osteophyte degeneration on the left side. He noted again that this was four weeks post the accident. He felt that this was indicative of trauma. He said that the General Practitioner, Dr. Comber, would be in a better position than himself to say what the cause was.
52. He noted that there was no increased signal to indicate that it was of recent origin and he said there was a small C3/C4 protrusion, a small bulge, not pressing on anything and therefore not going to have neurological consequences. This witness stressed that his report was purely a radiology one.
53. A follow-up second scan was carried out which he reviewed on the 12th of October, 2012, the scan having taken place on the 18th of September, 2012, four years post-accident.
54. Again, his clinical findings indicated a loss of lordosis with the minor protrusion at C4/C5. He felt that the scan machine brought ten years was more modern technology and therefore that it gave a better result than the 2008 scan. He said that from 2010 on with the new machine it could be put on disc and be magnified and the lighting could be adjusted in it to give a better view to a doctor.
55. Again, he noted the C4/C5 minor disc protrusion, C5/C6 minor degenerative change, C6/C7 minor degenerative change and C3/C6 mid-line degeneration. In other words he noticed a minor focal protrusion. He noticed in the second scan that there was nothing pressing on the spine and that they were pre-existing deformities as seen in 2008 and were more likely caused by the accident. He was asked about prior cause. He said he did not have that information but that the accident could have aggravated an older injury. The likely cause of this could not be said with any certainty. He said that the C3/C4 issue could have arisen as a result of the accident but it could not have caused neurological pain because it is not a large protrusion. He said that his finding regarding C5 and C6 was not there in 2008. He said there was muscle spasm there both in 2008 and 2012 and that both show that it was uncomfortable. He said it is up to the clinicians and clinician evidence to link these MRI scans together as a continuous process or not. He would bow to a pain specialist rather than to a radiologist.
56. This witness was asked regarding the issue at C4/C5 whether this deformity was as a result of trauma or whether it predated the accident. He said he could not be certain.
57. This witness was asked about the issue at C4/C5 and he described it as a difficulty at the top of the vertebrae. He said there was a slight depression at the top of C4/C5 from the top view. He said that wear and tear gave rise to an occasional situation which could lead to gradual compression resulting in a deformity. He said this was true also of a person who fell off a ladder. It is possible that this incident triggered a weakness. This witness took the example of where a person might have fallen on steps five years earlier. They could have compressed it without knowing it. This accident, for example, could have compressed it even more. He felt that it was unlikely that this patient’s difficulties were wholly attributable to the recent accident. This witness said that recent trauma could have triggered it further and that the MRIs provide a road map for the clinicians. He was asked in all probability whether the degenerative issues pre-existed the accident and he said that they had. He confirmed that the osteophyte formation at C6/C7 was degeneration. He said that the second scan was more descriptive and he described the condition as moderate.
58. This witness was asked about a minor focal protrusion projecting to the right. He said if both MRIs had been carried out on the same machine he would agree with that but he said in 2010 there is a ten year technical superiority in the machine and you could see more on the image.
59. This witness said that in the 2008 scan this difficulty could have been there but that the scan did not show it up and it was explicable by virtue of a more superior image than in 2008. In all likelihood this patient had degenerative change at C6/C7 and the likelihood was that it was there in 2008. He described the neck rotating involving two lower disc spaces and he said a disc complex osteophyte complaint with minor disc bulging.
60. It was put to this witness that the accident had raised symptoms of degeneration which were there prior to the accident and he agreed with this.
61. Under re-examination, given that the report of Dr. Stafford had been raised in oral evidence, this witness was asked to specifically identify his two reports, which he did.
Evidence of Mrs. Reeves, Wife of the Plaintiff
62. This witness confirmed that her husband had had no problems with his arms at all prior to this accident. Post-accident, she told the court that he had difficulty with his neck and hands, that he was very careful of himself, that he used scarves in winter and that he was minding his neck and went out of his way not to do damage.
63. She described a mobile home which belonged to their wider family circle where they used to spend at least a fortnight and other weekends during the year. She said that now, because of the soft furnishings in it, her husband would spend no more than one day there. At home, they had purchased an orthopaedic mattress with shaped pillows to suit his neck. This witness told the court that her husband does not get a whole night’s sleep and suffers from numbness and rubbing his hands when he is awake during the night.
64. This witness’s own nephew is a physiotherapist and he gave her exercises to do with her husband such as rolling a ball along his neck, deep heat, and heat wraps in cold weather.
65. This witness confirmed to the court that prior to the accident her husband played golf. He now walks instead for health and enjoyment.
66. The witness says that her husband is and always was easy going but that he gets irritated with himself and that it causes him to be contrary. They have one son who has special needs. He needs his dad more than the others.
67. Under cross-examination this witness confirmed that her son does not have a physical disability, rather that he is a slow learner with a language disorder.
Evidence of Mr. Gilmore, Consultant Orthopaedic Surgeon, Galway
68. This witness confirmed that he saw the plaintiff for the first time on the 24th of July, 2012 and that he was having difficulty sleeping, had numbness in both hands and that the ring and little finger on both sides were causing him difficulty with numbness.
69. He described the plaintiff’s neck as locking in cold weather with a clicking in the neck, pins and needles, and difficulties getting in and out of a motor vehicle.
70. He had a negative previous history with no further injuries subsequent to the accident.
71. The plaintiff told him that he was driving to work, that he had a head-rest on the seat of his car when a trailer pushed him to the left along an embankment and that he hit his head off the roof of the car.
72. On examination of the cervical spine, this witness made the clinical finding that the plaintiff had 50% extension with pain on pushing and he had no obvious neurological defect.
73. He said that the MRI of the 24th of April, 2008 showed significant loss of normal lordosis of the C4/C5 with an indicator of spasm around the neck. He said he had a soft tissue injury to the neck with continuous difficulties or neurological numbness.
74. The MRI was carried out on the 18th of September, 2012 and he reviewed it on the 27th of September, 2012. This witness could not confirm that there was a compression deformity as a result of trauma on the first MRI although the scan was within one month and there was degenerative changes and minor bulging. The plaintiff continued to have ongoing difficulties with very good reason for his complaints. He noted that the plaintiff had adapted his lifestyle to minimise the difficulties. He noted that Dr. McNamara had tested the ulnar nerves on both hands and of the medial nerve on both wrists but did not anticipate surgery.
75. He noted that the plaintiff had done home exercises, took paracetamol and Xanax and had neck stiffness and numbness in both arms which would keep him awake. He thought that it might have been positional at that stage. He defers to Mr. McNamara on that point however. He noted that the plaintiff was off work for eight months and had only recently gone back to work when he saw him on the 13th of April, 2015.
76. On clinical examination, he noted that he had 50% movement and tenderness on the inner right Trapezius muscles. In his opinion, the man’s age now and the time which had passed since the accident confirmed his view that he did not anticipate any significant change in his condition.
77. He noted the difficulties in the cervical and lumbar spine in the shoulder area. Three further MRIs were carried out. The plaintiff was taking no medication at that time.
78. The plaintiff enjoyed great relief from injections. He used a high collar and a scarf to protect himself. He suffered from numbness and slept mostly on the right side. In terms of the range of movement he said discomfort was 50% at the end of the range with normal flexion.
79. An MRI of the cervical spine was carried out on the 16th of April, 2016. This again confirmed loss of normal lordosis C6/C7 with pressure. He noted again that Mr. McNamara felt that he had compression. He compared the C6/C7 and found more extensive difficulty on the left side. In his opinion, nine years post-accident, the discomfort was going to persist. The plaintiff had an MRI of his shoulder and of his humerus which showed no abnormality
80. Under cross-examination, this witness confirmed that the plaintiff went to his G.P. the Tuesday after a bank holiday following this accident. He got Xanax and then attended a chiropractor but received no treatment until January 2011. He was managing to get by and there were no debilitating systems.
81. In relation to the scan on the 24th of April, 2008 this witness confirmed that the disc bulge showing the degenerative change at C4/C5 predated the accident and was not necessarily a result of trauma. He said he did not comment on any degeneration but it was reasonable to say that it predated the accident.
82. In relation to the C4/C5 difficulty, he said he would defer to Dr. Stafford who says it was at C3/C4, i.e. higher up. He said he saw nothing like that on the initial scan in 2008 and that he did not pick it up when he viewed the scan.
83. It was put to this witness that he saw the plaintiff in 2012 and he said he referred to that regarding his report on the MRI scan. The next date of significance then, it was put to him, was April 2015. He was asked whether he was on any treatment at all. He said that he had an occasional paracetamol, Xanax and home exercises. The doctor said that he thought that it was positional numbness at the time and he also added that if the plaintiff had degeneration in the neck that it would advance regardless of trauma.
84. Regarding the compression deformity, it was put to this witness that this amounted to normal deformity. He agreed that this happens to all of us.
85. This witness referred to Dr. McNamara’s findings showing carpal tunnel difficulty. He said clinically he found no evidence of a neurological defect and that his left side was the worse side.
86. This witness confirmed that the MRI of the left humerus showed no abnormality. He felt that his difficulties however were going to persist, that he will have good and bad days and that he has benefited from seeing Dr. McNamara.
87. He was asked whether he would disagree with the findings of Mr. Hobnet, radiologist, and the presence of posterior osteophytes and degenerative disc disease. He said he was not disagreeing with that.
88. In relation to re-examination, he said that trauma aggravated the injury and rendered it symptomatic. He said that this plaintiff had a degree of degenerative change pre-accident and may have progressed without trouble. He said that the findings in terms of the medial nerve difficulty were significant from a neuropsychological point of view. Clinically, he does not doubt but that the plaintiff gets numbness.
89. The plaintiff’s counsel referred to C5/C6 difficulties. He said that if the plaintiff has symptoms which warrant nerve compression, he does not think he has these symptoms at the moment. He does not have symptoms significantly clinical in nature to require surgery. His neck in winter causes him difficulty but he will continue to have neck problems and arthritis/degenerative change.
90. The matter of damage to his motor vehicle goes on appeal. The plaintiff will be entitled only as a trustee. The sum will be paid on the basis that his client is liable for the sum. The plaintiff can only get the percentage entitled to if there were an apportionment of liability on appeal.
Evidence of Dr. Brian Spillane for the Defendant
91. Dr. Spillane saw the plaintiff on the 4th of December, 2008. He said that wear and tear predated the accident, that he had mild anxiety and he had soft tissue to cervical spine superimposed on degenerative change. He said that he had stiffness and that occasionally, for example twice a year, his neck locked. His neck had locked the previously November prior to him seeing the plaintiff.
92. He was asked about the fact that the plaintiff did not attend a doctor from 2011 to 2016. He said that his symptoms were manageable and not very severe and that he felt that the soft issue difficulty should have been resolved. He said that age and time and natural progression and joint disease have to be looked at. The plaintiff is now 55 years of age and one would expect more advanced changes. It is very likely that he would have had neck problems even if the accident had not occurred.
93. This witness said that where a person has a pre-existing condition they will have less movement and they will have a greater degree of soft tissue injury and delayed recovery as a result of an accident.
94. Under cross-exanimation this witness said that he had an orthopaedic fellowship and he does accident and emergency medicine two days a week in Limerick. He said that he did ask the plaintiff whether he had had any previous injuries to see whether he had a prior history of a neck injury or a history of a road traffic accidents. He said that prior accidents suggest previous injury and a predisposition to one. This witness was asked whether trauma contributes to acceleration of such a condition and he said it is not inevitable; rather, that it is a contributory factor only.
95. He was asked about the basis of his disagreement with Dr. Gilmore and he said that it is natural as people get older they get stiffer. He said that he agreed that he would defer to Dr. Gilmore.
96. It was put to him that they would say that the trauma accelerated degenerative change. His response was that was possible rather than probable.
97. It was put to this witness that the plaintiff’s General Practitioner was of the view that if he had not had the accident he might not have had these problems at all. He said that he agrees that the G.P. has 35 years experience.
98. This witness confirmed that it was 2011 since he last saw the plaintiff. He was referred to the last page of his second report and it was put to him that it may have been aggravated by the accident. In relation to page 15 of his second report, he was asked about referring to what are described as differences in language between himself and the plaintiff’s doctors. He accepted that his condition may have been aggravated by the accident.
Conclusion
99. This Court finds that this accident did aggravate a pre-existing degenerative condition, as a matter of probability. This Court prefers the medical evidence adduced on behalf of the plaintiff but takes a cautious approach given the lack of a pattern of treatment which one would otherwise expect. The Court notes the fact that the plaintiff takes no medication at present for this injury, although this Court accepts that the plaintiff has the symptoms complained of.
100. This Court was very impressed by the evidence of the plaintiff’s general practitioner and that of Dr. McNamara and notes that the plaintiff is highly likely to adopt a conservative approach to his treatment in terms of possible medical approaches given that he has had a by-pass operation.
101. This Court awards €60,000 for pain and suffering to date and into the future. The court notes the position regarding the plaintiff’s motor vehicle and allows a total figure of €20,000 in respect of the items of special damages, measuring the said damages and award in the total sum of €80,000.
Kelly -v- Lackabeg Ltd t/a The Arc
[2016] IEHC 63 (29 January 2016)
JUDGMENT of Mr. Justice Barr delivered on the 29th day of January, 2016
Introduction
1. The plaintiff is a married woman and is forty-four years of age, having been born on 5th July, 1971. The defendant is the owner of a large public house premises, which contains a number of bars, a restaurant and a nightclub, known as the Arc Café Bar, Liffey Valley, Fonthill Road, Dublin.
2. The plaintiff alleges that at approximately 01.17hrs on 29th May, 2011, she was in the defendant’s premises attending a birthday party for her sister-in-law, when she decided to go to the toilet. She states that while traversing a wooden floor area in the Lobby Bar, she was caused to slip and fall to the ground, due to the presence of liquid on the floor surface.
3. It is alleged that as a result of falling to the floor, the plaintiff suffered injury to her right thumb, which was dislocated, and an injury to the muscles and ligaments in her neck.
4. The defendant denies that there was any water or other liquid on the floor surface. The defendant maintains that it had a comprehensive cleaning system in operation on the night in question. Accordingly, it is denied that the defendant company is liable for the injuries suffered by the plaintiff.
Liability
5. The Arc Café Bar is a large premises covering some 20,000 square feet. It has a number of bars, a restaurant, and a nightclub spread over four floors. It is licensed to hold seven hundred and twenty patrons. There was a bar in the basement area known as the Garden Bar. The plaintiff was attending a party in that area on the night in question. The main bar was situate on the ground floor level and was known as the Lobby Bar. This included an area of seating which was used as a restaurant. There was a smaller Public Bar just off the Lobby Bar. It was not in operation on the night in question. Above the lobby bar there was a mezzanine area, which did not have any bar, it merely contained a seating area. On the next floor up there was a nightclub/disco bar. This was in use on the night in question. There was also what was referred to as a rooftop garden bar which was used as an exterior smoking area. The bars, nightclub and restaurant area are all under the same roof and could be accessed by means of internal stairs.
6. On the night of 28th/29th May, 2011, the Champions League Final was being shown on a television screen in the Lobby Bar and also on a much larger drop down screen in the disco bar. On the night, the defendant was holding a drinks promotion, whereby patrons could get two drinks for the price of one in the disco bar for the duration of the match, to include the pre-match and post-match analysis. In addition to the regular patrons on the premises, the plaintiff’s sister-in-law was having her 30th birthday party in the Garden Bar area.
7. The plaintiff arrived on the premises circa 19.30hrs and was watching the match with her husband in the Lobby Bar. When the match ended, the plaintiff joined the birthday party in the Garden Bar. She stated that she had consumed five bottles of Budweiser in the course of the night. At approximately, 01.15hrs, she decided to go to the toilet. She ascended a small flight of stairs leading from the Garden Bar to the Lobby Bar. She then traversed an area on which there was wooden parquet flooring, as shown in photograph No. 6 of the plaintiff’s engineer’s booklet of photographs. The plaintiff was walking across this area going towards the Public Bar, when she slipped and fell forwards onto her hands and knees.
8. The plaintiff stated that when she fell onto the ground, her hands and the knee area of her jeans were wet. She was very clear in her evidence that the floor surface was wet. She states that she stood up immediately as she felt somewhat embarrassed. The plaintiff’s fall was captured on CCTV. The court was shown this CCTV recording and also had the benefit of still photographs taken from the recording.
9. The plaintiff states that a security man came to her aid some short time after the accident. She moved with him into the public bar area, which was just adjacent to the Lobby Bar. This area was quiet as the bar was closed. Some short while later, the manager of the premises, Mr. Tom Reilly, came over to ask the plaintiff how she was. According to Mr. Reilly, the plaintiff held out her right hand and it was clear that her thumb had been dislocated. According to the manager, the plaintiff asked him to pop the thumb back into place and said that she had sufficient drink taken to allow this to be done. However, Mr. Reilly said that he would not be able to do any such treatment. He stated that an ambulance had been called. The plaintiff’s husband then arrived on the scene and the plaintiff told him that she had slipped on a wet floor. An ambulance was called and the plaintiff was taken to hospital.
10. The plaintiff stated that on the evening in question, she had been wearing shoes with four inch heels on them. She was also wearing bootleg jeans.
11. Evidence was given by Ms. Elaine Ritchie, who stated that the plaintiff was related to her sister through marriage. It was her sister’s thirtieth birthday party which was being held on the premises that evening. Ms. Ritchie stated that she arrived at the bar at approximately 20.00hrs. Some short while later, she went to the disabled toilet as she has a slight physical disability. She stated that the toilet bowl in the disabled toilet was full and for this reason she went to the ladies’ toilet next door. She found that there was water on the floor of the ladies’ toilet. On her way back to the party, she complained about the condition of the toilet to staff at the main bar.
12. Ms. Ritchie stated that at approximately 21.30/22.00hrs, she went to the toilet again, this time accompanied by Ms. Mandy McAuley, who was the lady whose birthday was being celebrated that evening. Ms. Ritchie stated that the toilets were still in a bad condition. There was still water on the floor. She stated that the water may have been transferred into the public bar area by being brought in on the soles of patrons’ feet. She stated that she made another complaint to the bar staff about the condition of the toilet.
13. Ms. Ritchie stated that she went to the toilet again shortly after the plaintiff’s fall. She had a brief conversation with the plaintiff while on her way to the toilet. She stated that the toilets were still in a bad condition. She stated that the premises was very busy and the bars and nightclub were open. She left the premises at 02.30hrs. She stated that she did not see any staff cleaning up, nor did she any improvement in the state of the ladies’ toilet in the course of the evening.
14. In cross examination, she stated that the disabled toilet bowl had been almost overflowing. She stated that there was water and toilet rolls on the floor of the ladies’ toilet. She stated that her sister, Caroline, had been with her at the time of her first visit to the ladies’ toilet. She accepted that it was unusual for the toilet to be in such a bad condition that early in the night. She stated that they complained about the condition of the toilet at the main bar on the way back to the party.
15. She felt that due to the condition of the floor in the ladies’ toilet, patrons may have brought water into the main bar on the soles of their feet. She stated that she did not complain to the barman on the third occasion on which she had gone to the toilet as she had made previous complaints in the course of the night.
16. Evidence was given by Ms. Mandy McAuley whose birthday party had been taking place at the premises on the night in question. She stated that she had arrived at approximately 20.30hrs and had been stopped at the door by security staff who said that the place was very busy. She stated that when she told them that it was her birthday party which was being held in the premises, she was allowed in.
17. She stated that during the course of the early part of the evening, her sister Elaine told her that she had complained about the condition of the ladies’ toilet. At 22,00hrs she went to the ladies’ toilet and found that it was in a bad condition. There was water all over the floor and there was toilet paper strewn across the floor. She stated that the general hygiene of the area seemed very bad. On this account, on her way back to the party, she made a complaint about the condition of the toilets at the main bar.
18. Ms. McAuley stated that at approximately midnight, she made a complaint to a female employee about the condition of the floor at the top of the stairs shown in photograph No. 6. She said that this floor area was wet. She stated that she felt unsteady on her feet due to the condition of the floor in this area. This was the area where the plaintiff subsequently met with her accident.
19. In cross examination, the witness said that the premises was very busy when they arrived and it got even busier after 23.30hrs. She stated that up to midnight, she had just made one complaint about the condition of the ladies’ toilet. When she went to the toilet at midnight, she made a complaint about the area at the top of the stairs, leading from the garden bar to the Lobby Bar. She stated that she made that complaint and then proceeded to the toilet. She thought that she may have mentioned to her sister, Elaine, about the state of the floor in the ladies’ toilet. She did not say anything to the plaintiff about this toilet, as the plaintiff was sitting far away from her.
20. She stated that the floor area in the Lobby Bar was so wet that she made complaint to an employee of the defendant. She stated that this area was in a bad condition at midnight. She stated that she did not see anyone clean up the area. The employee said that they would see to it.
21. In the course of cross examination, a toilet cleaning checklist was put to the witness. This checklist was in a format that is commonly seen in toilets in hotels, bars and other public premises. It was divided into a number of columns. In the first column, it was divided into one hour slots up to 7pm and thereafter was divided into slots of thirty minutes. Opposite each time period, there were a number of rows dealing with items in the toilet area, such as: floor, mirror, cubicles, urinal, wall, paper, and soap. The second last column was headed “corrective action” and the final column provided a space for the signature of the person who carried out the inspection. The particular checklist only began at 20.00hrs, as that was the time when these particular toilets were opened for public use. In the particular checklist, there were ticks against most of the relevant items. There were also a small number of “x’s” against some areas where corrective action had been needed. Each of the relevant inspections had been carried out by an employee called “Deirdre” whose name appeared in the column on the right hand side.
22. It was put to the witness that according to this cleaning schedule, the defendant had carried out regular periodic inspections of the ladies’ toilet throughout the night. The checklist showed that on most of these occasions, the toilet area was in good condition and did not need any corrective action being taken. Where there were a number of small items needing corrective action, this was taken by the person who made the inspection. Ms. Mandy McAuley did not agree that the checklist painted a picture of the ladies’ toilet having been in a good condition. She said that when she went to the toilet again at 02.20hrs, she found that it was in such a bad condition that she decided to wait until she went home to go to the toilet.
23. Evidence was given on behalf of the defendant by Mr. Tom Reilly, the bar manager. He stated that on the night in question there were eight bar staff working in the various bars in the premises. There were three people working behind the bar in the Lobby Bar and he would also work behind the bar when it was particularly busy. He stated that there were a number of staff employed in the restaurant area. There was also six lounge staff, made up of four staff members out on the floor and two people working behind the bar, cleaning glasses and restocking shelves. The lounge staff who were working out on the floor were responsible for picking up empty glasses, bringing orders from the bar to patrons sitting at tables and also making sure that the area was kept clean. In addition to this staff, there were also five security personnel.
24. According to Mr. Reilly, the night in question, while being a busy night, was not particularly busy. In support of this, he stated that the security staff were told that they should “click” people into the premises. This meant that as a patron arrived, the security man at the door would click a counter, which kept a record of the number of people entering onto the premises. He stated that on this particular evening, there had been four hundred and twenty-five patrons on the premises. This was considerably short of the maximum number allowed on the premises, which was seven hundred and twenty. He also referred to a Sales Journal which gave a breakdown of the hourly takings from each of the bars on the night in question. He said that from a perusal of this document, it was evident that while the bars were doing a reasonable trade, it was not an extremely busy night.
25. In relation to the procedure for dealing with spillages which might occur in the course of the night, Mr. Reilly stated that the standard operating procedure was that if an employee came across a spillage in the course of his work, he then “owned” the spillage until it was cleared up. The person was supposed to remain standing at the spillage and to signal to some other member of staff to obtain the necessary equipment to clean the area and dry the floor surface. He stated that this procedure was well known to all the employees and formed part of the induction training that they received on commencing employment with the company. In addition, there was a notice which outlined the procedure which should be used in dealing with spillages, affixed to the notice board in the staff room.
26. Mr. Reilly thought that the criticisms made by the plaintiff’s witnesses about the complaints that they had made to the bar staff going unheeded were unfair. He stated that if a complaint had been made to a member of staff, they would have ensured that the ladies’ toilet was properly cleaned.
27. Mr. Reilly did not see the plaintiff fall on the premises. However, he came over to her when the accident was brought to his attention. She was in the public bar area at this time. He overheard her telling her husband that she had slipped on a wet floor. He then checked the floor area and noted that it was dry.
28. Mr. Reilly outlined how there were toilets in the Public Bar which was on the ground floor. These toilets only opened at 20.00hrs. There were also toilets in the Lobby Bar which were beside the restaurant area. There were five toilets in total on the premises.
29. Mr. Reilly stated that Deirdre Duffy worked behind the bar in the Lobby Bar area and was in charge of the lounge staff and also had responsibility for monitoring the ladies’ toilet in the course of the evening. She would check the toilets every thirty minutes and record this on a check sheet which was kept on the rear of the toilet door. As far as he was concerned, the ladies’ toilets were properly cleaned during the course of the evening. He reiterated that if a complaint had been made about the condition of the toilets, a member of bar staff would have cleaned it up. They would not have come to him about the complaint.
30. Mr. Reilly conceded that while he had given evidence that it was not a particularly busy Saturday night, he had stated in a statement made to the defendant’s insurers that it was “a very busy night”.
31. The plaintiff and her witnesses disputed the assertion that it was not a busy night. They stated that there were a large number of people who had come to the bar to watch the Champions League Final at that venue due to the two for the price of one drinks promotion. There was also the birthday party celebration going on in the Garden Bar area at which Mr. Keogh, a barman, estimated seventy to eighty people were in attendance. In addition, the plaintiff and her witnesses stated that a large number of people had come into the bar after 23.30hrs, who had been attending a Robbie Williams concert in Slane. There were also a number of patrons who came onto the premises to attend the nightclub.
32. Evidence was also given by Ms. Deirdre Duffy, who had been employed as a barmaid at the time. She no longer worked with the defendant and was now working as a teacher. On the night in question, she was working behind the bar in the Lobby Bar. She was also responsible for the lounge staff in the lounge and mezzanine areas. She was also responsible for checking the ladies’ toilet in the public bar. She stated that these checks were carried out every thirty minutes. She had no specific recollection of this particular night. She had no specific recollection of inspecting the toilets, but was relying on the check sheet which had been filled out by her. This showed that she had checked the area at thirty minute intervals from 20.00hrs onwards. She stated that she had signed the check sheet each time she did an inspection.
33. She was asked why there was a tick under the column headed “urinal” on the check sheet for the ladies’ toilet. She stated that it was just easier to place a tick in that box rather than leave it out.
34. Ms. Duffy did not accept the evidence of the plaintiff and her witnesses that the toilets were in a very bad condition that evening. If the floor in the ladies’ toilet had been wet, she would have marked this on the sheet and taken action to correct the situation.
35. She stated that if there had been a complaint in relation to the condition of the toilets, other staff would have told her to check the toilets. She did not recall any complaints being made that evening. She accepted that she had a number of areas of responsibility that evening.
36. It was put to the witness that if she was working hard behind the bar, on a busy night, she would not have been able to carry out all these checks of the ladies’ toilet. She stated that there was always sufficient staff available to allow her to carry out the check of the toilets. She did not recall any woman making a complaint about the condition of the floor in the Lobby Bar.
37. Evidence was also given by Mr. Ken Keogh, who was working as a barman in the Lobby Bar at the time of the accident. He stated that there were three bar staff working behind the bar at that time. He stated that it was a normal Saturday night. He did not think it was that busy. He accepted that it got busier later on in the night when the nightclub opened and when the concert was over. He was not aware that the plaintiff had fallen.
38. Mr. Keogh stated that in the induction training which he had received, he was instructed in relation to the procedure which should be used in the event of a spillage being discovered. They were taught that if they saw a spillage, then they “owned it” until it was cleaned up.
39. Evidence was also given by the owner of the premises, Mr. Frank Towey. He stated that the bar had been newly built, thirteen years ago. He stated that they had a good cleaning system in place in the bar. All staff were trained in relation to the clearing up of spillages. There was a notice on the notice board in the staff room dealing with the procedure which should be followed. This set out in detail the procedure which had been outlined by the previous witnesses. He stated that the staff were also trained to maintain the toilets at all times. He stated that they had never had any claim of a slip and fall accident in any of their toilets. He was not present on the night of the plaintiff’s accident.
40. Evidence was also given by Mr. Serin Chebac, who was employed as a security man on the premises on the night of the accident. He stated that he had been on duty at the front door, when he was told of the accident by a customer. He went in and found the plaintiff standing in the public bar area as shown in photograph No. 4 of the plaintiff’s engineer’s photographs. She had injured her right thumb. She said she had slipped. He stated that he left the plaintiff and got the bar manager, Mr. Reilly. He stated that he looked at the floor in the Public Bar as shown in photograph No. 4 and it was fine. There was no problem with it at all.
41. Finally, evidence was given by Mr. Murphy, a consulting engineer, on behalf of the plaintiff. Evidence was given by Mr. Rowan, a consulting engineer, on behalf of the defendant. They agreed that the parquet wood flooring in the Lobby Bar was in good condition. When dry, it presented as a low risk of slipping. However, when wet, it represented a medium risk of slipping.
42. At the engineering inspection held on 20th September, 2011, the plaintiff was asked to point out the exact area where she slipped. She pointed to an area in the Public Bar when she had come through the double doors leading from the Lobby Bar. This was the area where she had had her conversation with Mr. Chebac and Mr. Reilly.
43. When the formal part of the engineering inspection had concluded and the plaintiff had left the premises, the plaintiff’s engineer was given the opportunity of viewing the CCTV footage of the plaintiff falling. From this, it was clear that she had slipped on the parquet flooring in the Lobby Bar, as shown in photograph No. 6 of the plaintiff’s engineer’s photographs.
44. It was put to the plaintiff that but for the CCTV footage, she would have made the case that she had slipped on the terrazzo flooring in the Public Bar, which surface was much more slippery and dangerous when wet. The plaintiff denied this and stated that she simply made an error of a couple of feet, as the bars looked much different when she had returned to the bar on the morning of the engineering inspection.
45. It was submitted on behalf of the plaintiff that she had identified the correct area to her solicitor and that this was evident from the content of a letter sent by the plaintiff’s solicitor to the defendant’s insurers dated 22nd July, 2011, which was in the following terms:-
“Our client’s sister had previously complained to the bar staff about the ladies’ toilet and the floor being wet. The area outside of the toilets where our client fell was wet.
Our client was going upstairs to go to the toilet. Just before the entrance into the room leading into the toilets, our client was caused to slip and fall forward. There was a wall in front of her and she went down on her knees. She struck her right hand off the wall. She got up and then went into the bathroom. A member of the security staff then came over to our client and asked her if she was ok. He asked her what had happened. Our client told him that she had slipped on the wet floor. He asked ‘where’. Our client pointed out to him where she had fallen. When our client got up, her hands and jeans were wet. Our client’s husband then came to her assistance and the security staff called an ambulance.”
Conclusions on Liability
46. Firstly, in relation to the plaintiff pointing out the wrong locus at the engineering inspection, I accept the plaintiff’s explanation that she made a simple error of a couple of feet when pointing out the locus. This was reasonable having regard to the fact that she had had conversations with Mr. Chebac, Mr. Reilly and her husband at this location. It is clear from her solicitor’s letter of 22nd July, 2011, that she had instructed him as to the correct locus of the accident. In the circumstances, this error on the part of the plaintiff does not impact greatly on her credibility.
47. Secondly, insofar as there is a dispute between the parties in relation to whether the premises was busy that night, I prefer the evidence of the plaintiff and her witnesses. While the defendant maintained that only four hundred and twenty-five people had been recorded as entering the premises, this was only an assertion made by the defendant’s bar manager. There was no actual record made of the number of patrons on the premises that night. Furthermore, I note that in a statement made by Mr. Reilly to the defendant’s insurers dated 24th June, 2011, he stated:-
“It was a very busy night due to the Champions League Final.”
48. I have also been supplied with a record of the takings per hour for the relevant bars on the night in question. These indicate that the bars did substantial business that night, particularly when one has regard to the two drinks for the price of one promotion which was in operation for a significant portion of the evening. In addition, the CCTV footage taken of the Lobby Bar at the time of the plaintiff’s accident, shows that this bar was doing a brisk trade at the time of the plaintiff’s fall at 01.17hrs.
49. I am satisfied that the bars and the nightclub in the premises were doing a substantial trade on this particular Saturday night. While the premises may not have been absolutely jam packed, it was nevertheless very busy on the night in question.
50. In relation to the condition of the ladies’ toilet I accept the evidence of Ms. Elaine Ritchie and her sister, Ms. Mandy McAuley, that the toilets in the public bar had been in a poor condition that night. I further accept that they made complaints to the bar staff in relation to the condition of the toilets.
51. I also accept the evidence of Mandy McAuley that at about midnight, she made complaint to a female employee about the condition of the floor at the top of the stairs, as shown in photograph No. 6 in the Lobby Bar. I also accept her evidence that when she went to the toilet at 02.20hrs, she found the toilets to be in such a bad condition, she decided to hold off going to the toilet until she got home.
52. I also accept the evidence of the plaintiff that when she fell onto the floor, her hands and the knees of her jeans, were wet.
53. I am satisfied that this was a very busy night for the bars, the restaurant and the nightclub on the premises. It is clear from the CCTV footage that the plaintiff actually slipped. This is evident from the fact that she fell down vertically in one sudden movement, which is indicative of a slip rather than a trip. Given the findings as to the level of business going on at the time and the mechanism of the plaintiff’s fall, I am satisfied that on the balance of probabilities there was liquid on the parquet flooring at the area where the plaintiff slipped. This may have come from the wet floor in the ladies’ toilet, or it may have been due to patrons spilling their drinks when coming from the bar. This area should have been monitored carefully throughout the evening and corrective action taken when drinks were spilt onto the floor.
54. While the defendant had in place a system for dealing with spillages, I am not satisfied that this system was properly implemented on the night in question. I am not persuaded that the check sheet on the back of the door in the ladies’ toilets, gives an accurate picture of the state of those toilets during that night. I prefer the evidence of Ms Ritchie and Ms McAuley that those toilets were in a poor condition that night.
55. In relation to the operation of the general cleaning system on the premises, I think it likely that the staff were so busy serving drinks and collecting empty glasses from the Lobby Bar and mezzanine area, that they were not able to take sufficient care to keep the floor dry and clean. Having regard to the fact that complaints had been made about the condition of the ladies’ toilet and the parquet floor in the Lobby Bar prior to the time of the plaintiff’s fall, I am satisfied that there was a failure on the part of the defendant to take reasonable care for the safety of the plaintiff while on the premises.
56. I do not find any contributory negligence on the part of the plaintiff. She had had a moderate amount to drink over more than five hours. People cannot be expected to look at the floor when walking across a bar. The plaintiff was entitled to expect that the floor was dry and that it was safe for her to walk across it. In the circumstances, liability for the plaintiff’s injuries must rest with the defendant.
Quantum
57. The plaintiff suffered a dislocation of the thumb on her right dominant hand. This was reduced in hospital under sedation. The hand was put into a plaster of Paris cast. However, the plaintiff had an allergic reaction to the plaster of Paris, so that it had to be removed.
58. The plaintiff also stated that she experienced dreadful neck pain on the day after the accident. It appears that she has suffered a significant soft tissue injury to the muscles and ligaments of her neck.
59. She was very disabled in the weeks and months after the incident. Her father had to move in with to her help with the daily chores and driving. She had some physiotherapy treatment in July 2011. However, she only had four sessions as it was too painful for her to continue.
60. The plaintiff came under the care of Mr. Rice, Consultant Orthopaedic Surgeon, in July 2011. Examination at that time revealed that she had tenderness and swelling in the region of the MCP joint of her right hand. She had limitation of adduction and flexion of her right thumb. Her thumb joint felt clinically stable. In particular, there was no instability in relation to the ulnar or radial collateral ligaments of the MCP joint. The plaintiff had good power and pinch grip. Her pinch grip on the right side was slightly less than her non-dominant left side. This lady had reduced superficial sensation in relation to the skin on the ulnar aspect of the distal phalanx of her right thumb. She had normal deep sensation, however, in this region.
61. The plaintiff had deep tenderness in relation to the paraspinal soft tissues in the posterior aspect of her neck on the right side. She had a normal range of movement of her neck and her pain was reproduced at the end range of lateral flexion and rotation to the left side. Examination of the plaintiff’s upper limbs did not reveal any evidence of nerve root tension and she had normal deep tendon reflexes.
62. Mr. Rice was of opinion that the plaintiff had sustained a dislocation of the MCP joint of her dominant right thumb. There did not appear to be any residual instability of the joint. She had swelling of the joint and weakness, however, Mr. Rice expected this would improve over the forthcoming six to twelve months. The plaintiff also appeared to have a traction injury to the digital nerve in her right thumb at the time of her dislocation. She had a reduced superficial sensation but normal deep sensation. Mr. Rice expected that this aspect of her injury would improve over the forthcoming months without any specific treatment.
63. Mr. Rice stated that the plaintiff also appeared to have sustained a soft tissue injury to her neck in the accident. She was making progress with physiotherapy. He advised her on a home exercise programme and he hoped that this aspect of her injury would settle in the next six months.
64. When reviewed on 25th March, 2013, the plaintiff reported recurring episodes of pain in relation to her neck. She would awake in the morning with her neck feeling stiff and sore. On occasions, she was awoken from sleep with significant neck pain. This flare up of neck pain occurred for no apparent reason and occurred about two to three times per month. The plaintiff was taking anti-inflammatory medication (Difene) for these flare-ups of neck pain. The plaintiff also reported a recurring weak sensation in relation to her thumb. She found difficulty grasping objects. This was a problem for her carrying out household work and looking after her three children. She had difficulty lifting heavy saucepans or shopping. She had to modify her activity due to lack of power/pinch grip in her dominant right hand. On examination, she did not have any significant tenderness in relation to the soft tissues in her neck. She had a normal painless range of movement of her neck. She had deep tenderness in the ulnar collateral ligament of the metacarpophalangeal joint of her right thumb. She had a normal range of movement of her thumb and clinically her MCP joint appeared to be quite stable. She had a reduced grip strength in terms of pinch grip on her dominant right side when compared to her left side.
65. Mr. Rice stated that in his opinion, this lady sustained a significant soft tissue injury to her cervical region and a dislocation of the MCP joint of her dominant right thumb, with injury to the ulnar collateral ligament of this joint. At this time, the plaintiff reported recurring mechanical symptoms in relation to her cervical region. Mr. Rice had referred her for an MRI scan. In relation to the thumb, he noted that she had a degree of dysfunction in relation to the ulnar collateral ligament. The joint was stable and on this basis, he did not believe that surgical intervention was indicated. However, he was of opinion that the plaintiff will have long term loss of pinch grip in relation to her right hand as a result of the injuries sustained in May 2011.
66. The plaintiff had an MRI scan done of her neck on 12th April, 2013. The scan showed degenerative changes with osteophyte formation at her lower inter-vertebral area. There was no significant compression of the adjacent neurological structures. Mr. Rice was of opinion that the plaintiff’s degenerative disease in her neck pre-dated her fall in May 2011, even though they were not symptomatic. He believed that the plaintiff’s current symptoms represented soft tissue injuries which were superimposed on a pre-existing but asymptomatic degenerative disorder in her cervical region. He was of opinion that the way forward lay with exercises to rehabilitate the soft tissues in her cervical region, rather than any surgical intervention. He recommended that the plaintiff continue with her exercises to help cope better with her symptoms. However, he believed that the plaintiff would have long term symptoms as a result of the soft tissue injury that was superimposed on the pre-existing but asymptomatic degenerative disease of her cervical spine. Given the long duration of her symptoms, he believed that these would be a life-long problem for the plaintiff. He advised her to continue with rehabilitation to help her cope with her long term recurring neck symptoms.
67. The plaintiff was reviewed on 28th April, 2014. Since the previous evaluation in September 2012, the plaintiff reported that she had had fluctuating pain in relation to her neck, with ongoing weakness in relation to her right thumb. She had been through periods when her neck was not bad. She reported that at the start of February 2014, she had a significant flare up of pain in her right upper limb. She attended the accident department of the hospital in Tullamore and was given an injection and opiate type analgesic medication. Her GP, Dr. Barry Boland, referred the plaintiff for an MRI scan of her cervical spine and right shoulder. The MRI scan of the right shoulder showed early degenerative disease in relation to her acromioclavicular joint. MRI of her cervical spine showed a significant protrusion at the C6/7 intervertebral disc, as well as bulging of the C5/6 intervertebral disc. The plaintiff was treated with opiate analgesia and neurotrophic medication. She reported that for six weeks following this flare up, she was virtually house bound as she was “dopey” from the medication and could not drive. She reported a slow but sure improvement in relation to her right upper limb pain.
68. Examination revealed that the plaintiff did not have significant tenderness in relation to the bony or soft tissue structures in her cervical region. Stretching the nerves, coming from her neck on the right side, by turning her head and neck towards the left while extending her right shoulder, reproduced pain in her right forearm, indicating a degree of nerve root lesion in relation to her right brachial plexus. She had blunting of superficial and deep sensation in relation to the tip of her thumb, index and middle finger on the right hand. She had normal movements of all muscles of her hand, however, she had a demonstrable weakness Grade 4/5 in relation to her right trapezius muscle and her right triceps reflex was absent. The supinator reflex, however, was normal and she had good strength of elbow flexion comparable to her non-dominant left side.
69. In relation to her thumb, the plaintiff had deep tenderness in the ulnar collateral ligament of her right thumb. Her ligament felt stable however her pinch grip in her dominant right hand was demonstrably weaker than the pinch grip on the left side, indicating a degree of insufficiency of the ulnar collateral ligament of the MCP joint of her right thumb.
70. Mr. Rice was of opinion that the plaintiff had sustained significant soft tissue injury to her cervical spine, as well as a rupture of the ulnar collateral ligament of the MCP joint of her right thumb. She had recently developed a prolapse of intervertebral disc in her lower cervical region, that caused right upper limb pain. Mr. Rice was of the opinion that this disc prolapse likely resulted from the injury to her cervical region in the fall in May 2011. By the time of that examination, the plaintiff’s right upper limb pain was settling. She had demonstrable partial loss of function of her C7 nerve root. However, he expected her pain and nerve function would improve over the forthcoming months. If this did not occur, he was of opinion that surgery in the form of cervical discectomy should be considered. In overall terms, he expected that the plaintiff’s right upper limb symptoms would settle. However, she did have an increased risk of developing degenerative arthritis of her cervical spine as a result of her disc prolapse.
71. In relation to the plaintiff’s right thumb, he believed that she injured the MCP joint of her thumb and has weakness of pinch grip on this side ever since. He did not think that surgical intervention was indicated considering her degree of impairment, however, he believed that her symptoms would continue in relation to her weak pinch grip.
72. The plaintiff was reviewed on 18th August, 2014. She reported that she had been carrying out her home exercise programme. Overall, she reported that there had been improvement in relation to her neck and upper limb symptoms. She continued to have a degree of numbness in relation to the tip of her right thumb and index finger with a reduction in grip strength in her right hand, that had not improved since the last examination. Examination at that time revealed full movement of the neck. The acute flare up of neck pain in February 2014, had largely settled.
73. The plaintiff also reported the onset of significant lumbar pain. However, this was not thought to be referable to the accident in May 2011.
74. Mr. Rice noted that the plaintiff had suffered a significant injury to her cervical spine and right thumb in a fall in May 2011. He believed that the injury to her cervical spine provoked the prolapse with radiculopathy affecting her right upper limb. Her acute neck pain and neurotic symptoms and right upper limb pain had improved by the time of that examination, but the plaintiff continued to have established residual symptoms. The plaintiff also had residual weakness, particularly in relation to pinch grip in her right hand and had a deficit of superficial sensation at the tip of her index and thumb with no carpal tunnel compression signs, nor did she give a history of waking at night with pins and needles in her right hand. He did not believe that any further investigation or surgical intervention was indicated.
75. Mr. Rice expected that the plaintiff would continue to experience long term impairment in relation to her sensation and gripping in her dominant right hand, as a result of the disc prolapse. He was also of opinion that as there was a disc prolapse in the cervical spine, she had a risk of developing degenerative arthritis in her neck. He advised the plaintiff to continue with her daily exercise programme. He noted that the plaintiff’s right thumb symptoms appeared to have resolved fully at that stage.
76. Finally, in a letter dated 30th November, 2014, Mr. Rice indicated he believed that the plaintiff would have a long-term impairment, with reduced sensation in relation to her right hand and reduction of pinch grip due to MCP pain in her right thumb. Given that she had structural disruption of the intervertebral discs in her cervical spine and degenerative disease of the acromioclavicular joint, he believed that there was a significant long term risk of developing recurring mechanical pain in relation to her right upper limb and cervical region.
77. He believes that it would be in the plaintiff’s best interests if she sought a career that did not involve manual lifting or handling activities as he believed that this would make her pain worse. He was of the view that in the interest of controlling her pain better in the long term, she should consider a sedentary type occupation.
78. The plaintiff was seen by Mr. Gary C.C. Fenlon, FRSCI, on behalf of the defendant on 10th April, 2013. She stated that she still had ongoing intermittent stiffness and soreness in her neck, which might occur two to three times a month and would last for two to three days. This could come on for no apparent reason, but was also aggravated by exercise and housework. The plaintiff stated that she had given up attending a boot camp as the exercises were too extreme, but she continued to do exercises at home and was able to go jogging, which did not affect her neck. The plaintiff also complained of soreness in her right thumb, which was aggravated by certain heavy housework, especially opening jars. She complained of slight numbness at the very tip of her right thumb, but did admit that this numbness had generally improved.
79. On examination, the plaintiff had a good range of pain free movement of her neck, with no local tenderness or muscle spasm. Examination of the right thumb confirmed that the first metacarpophalangeal joint of the thumb was stable and there was no pain on stressing the ulnar or radial collateral ligaments. Her grip strength was also good and she had good pinch grip. There was no swelling of any of the joints in the thumb. There was altered sensation at the very tip of the thumb.
80. Mr. Fenlon noted that the plaintiff had sustained a dislocation of her right thumb and a traction injury to one of the nerves of this digit when she fell in May 2011. The thumb was reduced under sedation and the joint was stable. The patient had no long term problems with respect to her thumb. The numbness, which was improving, would fully resolve in time. He noted that she also jarred her neck and had intermittent discomfort in her neck. He thought that this would settle in time. There were no signs of root entrapment. There was no need for surgical intervention regarding her neck. Her ongoing symptoms were intermittent in nature and were improving.
81. When reviewed on 30th October, 2014, the plaintiff stated that she had had intermittent neck pain and then in February 2014, she had got up one morning and was aware of a sudden severe pain at the back of her neck, radiating across the right superior shoulder area. She attended Tullamore Hospital and then returned to see Mr. Rice. He ordered a second MRI scan and advised her to continue with her home exercise programme.
82. When reviewed on that occasion, the plaintiff stated that the severe pain in her neck, which radiated down her right arm, lasted for some six weeks or so, and then gradually settled, but she continued from that time to complain of a numbness or tingling sensation in the tips of her index and middle fingers. The neck pain, as before, would occur every few weeks and occasionally she might be symptom free for a month, but the pain would then return and last some days. She continued to have tingling in the tips of her index and middle fingers of her right hand. With respect to her right thumb, she still had a throbbing pain on occasions over the dorsal aspect of the MCP joint and she felt that her grip strength was weak. She still had a very small area of numbness at the tip of the thumb.
83. On examination, the plaintiff had a good range of neck movement, with no local tenderness or muscle spasm. Mr. Fenlon could elicit no neurological deficit in her upper limbs, except for the small area of numbness at the tip of her right thumb. Her grip strength was good and equal to the left side. Examination of her right thumb again confirmed no abnormality, with no swelling and the thumb was stable.
84. Mr. Fenlon noted that the MRI report of the scan done in April 2013, confirmed degenerative changes at C5/6 and C6/7, where there was some osteophyte formation posteriorly and on the left side at C6/7 there was moderate to severe narrowing due to a combination of disc and osteophytes. The more recent MRI scan from 22nd February, 2014, again noted the narrowing and degeneration at C5/6 and C6/7. However, the axial imaging revealed a large right sided disc extrusion at C6/7 and according to the report occupies all of the right exit foramen impinging on the existing nerve root. The conclusion from this report was that the patient had developed this large disc extrusion at C6/7 in the interval between April 2013 and February 2014.
85. Mr. Fenlon gave the following opinion in his medical report dated 30th October, 2014:-
“Ms. Sharon Kelly now aged 42 sustained a dislocation of her right thumb at the metacarpophalangeal joint in this fall in May 2011. The thumb is stable with no swelling and her grip strength is good and whatever residual complaint she has will settle further and there should be no long term problems with respect to this thumb. This lady developed acute onset of severe neck pain earlier this year which lasted six weeks or so and she was seen by Mr. Rice and sent for a second MRI scan, but no surgery was indicated. From a clinical point of view, on review today, there is indeed no indication to consider a disc decompression as there are no obvious clinical signs seen on examining her today. She does have this tingling still in the index and middle fingers of her right hand, but not enough symptoms to suggest disc decompression. It is my view that the disc protrusion developed probably early in February 2014, resulting in her severe symptoms, but these symptoms have largely settled now and there are no specific signs here to suggest nerve damage. I feel that it is reasonable to suggest that her neck symptoms resulted from the fall in the pub but the development of an acute disc prolapse nearly three years later cannot be blamed on the fall in the pub. Disc prolapses either in the lumbar spine or the neck can occur spontaneously and some of these require urgent decompression. This was not necessary apparently according to Mr. Rice, who saw the patient shortly after the development of the pain and again when the MRI scan was undertaken.”
86. The plaintiff was also examined by Dr. Pat O’Neill, Sports and Orthopaedic Medicine, at the Mater Private Hospital in Dublin. He saw the plaintiff on 24th June, 2015. He noted that the two previous MRI scans taken on 12th April, 2013 and 22nd February, 2014, both revealed degenerative changes in the plaintiff’s neck. At the time of his examination, the plaintiff complained of intermittent soreness and stiffness in the neck, which was aggravated by doing housework. She also complained of a loss of sensation in two fingers in her right hand and she complained of occasional soreness and weakness in the right thumb and numbness in the tip of the thumb. On examination, she was noted to have a good range of movement in her neck, although with some discomfort. Dr. O’Neill stated that he examined her shoulder along with her neck and as there was no comment in her medical report in relation to the shoulder, it must have been symptom free when he examined her. He was of opinion that the plaintiff had suffered mild to moderate soft tissue injuries to her neck and shoulder. This had given rise to some exacerbation of pre-existing degenerative changes in her neck.
87. In relation to the acute episode in February 2014, he was of opinion that given the time lapse since the accident, this acute episode was not caused by the fall in May 2011. He was of opinion that the MRI scan before and after February 2014, showed no material difference. He did not agree with Mr. Rice’s opinion that the episode in February 2014, was caused by the accident in 2011. If there had been an acute aggravation of pre-existing degenerative changes, or if there was a disc problem, he would have expected the onset of symptoms within 24/48hrs. The onset of symptoms some three years after the accident, did not fit in with this timescale. Given her progress from 2011, to 2014, this fitted with a diagnosis of a mild to moderate soft tissue injury superimposed on underlying degenerative changes, which were rendered symptomatic. However, the onset of severe symptoms in February 2014, was not, in his view, connected to the accident. In his experience, symptoms usually resolved from such injuries within twelve to eighteen months.
88. In cross examination, it was put to the witness that in the earlier MRI scan in 2013, there had been no disc protrusion evident, but the plaintiff did have a moderate amount of degenerative changes in her neck. The witness agreed that that was correct and that she had had degenerative changes at two levels which were moderate/severe. It was put to the witness that after the acute episode in February 2014, a subsequent MRI scan had shown a disc protrusion in the plaintiff’s neck. The witness agreed that there was a protrusion at the C6/7 disc since the time of the first MRI scan. He accepted that the accident did exacerbate the plaintiff’s underlying degenerative changes in her neck.
89. Dr. O’Neill stated that he did not associate the disc protrusion in 2014 with the accident, due to its late onset and the absence of symptoms relative to the disc protrusion in the immediate aftermath of the accident. There were no neck symptoms or cervical findings to suggest a disc protrusion in the immediate aftermath of the injury. There were no supporting medical findings, in terms of symptoms, presenting complaints or clinical findings, to suggest an acute disc injury.
90. Dr. O’Neill stated that the plaintiff had weakness of pinch grip in the right hand. There was also tenderness in the trapezius muscles on the right side. He accepted that the plaintiff’s symptoms were genuine. He accepted her complaint of loss of sensation. In relation to his prognosis, he stated that based on the examination in 2015, he would expect the plaintiff to have some symptoms in the future depending on the progression of the degenerative changes in her neck.
Conclusions on Quantum
91. I am satisfied on the medical evidence before me, that the plaintiff suffered a dislocation of her right thumb. This has gone on to settle reasonably well, although she has been left with a diminution in sensation in the tip of the thumb and a reduced pinch grip between the thumb and forefinger.
92. Perhaps of more concern to the plaintiff, is the soft tissue injury that she suffered to her neck. The doctors for both sides agree that this soft tissue injury was superimposed on pre-existing, but asymptomatic degenerative changes. These were rendered symptomatic by the injuries sustained in the accident. The main point of disagreement between the doctors is in relation to whether the acute exacerbation of her neck pain in February 2014, which was caused by a disc protrusion at the C6/7 level as well as bulging at the C5/6 intervertebral disc, is referable to the accident.
93. Mr. Rice on behalf of the plaintiff, is of opinion that this acute episode was referable to the injury to the plaintiff’s neck in the fall in May 2011. The defendant’s doctors are of the opinion that, given the time lapse between the accident and the sudden onset of severe symptoms in February 2014, that there is no connection between the two. They think it more likely that the plaintiff had a spontaneous disc prolapse in 2014, which was unrelated to the previous neck injury in the accident.
94. I prefer the evidence of Mr. Rice in this regard. It was reasonable to hold that as the plaintiff had intermittent, but frequent neck pain since the accident, which was caused by the soft tissue injury rendering pre-existing degenerative changes symptomatic, that the disc prolapse in February 2014, was related to the initial injury. In addition, the altered sensation in her thumb and fingers and the lack of grip strength between the thumb and forefinger, suggests that the effects of the neck injury are ongoing.
95. Mr. Rice is of the opinion that given that the plaintiff has structural disruption of the intervertebral discs in her cervical spine and degenerative disease of the acromioclavicular joint, he believes that she has a significant long term risk of developing recurring mechanical pain in relation to her right upper limb and cervical region.
96. The doctor is also of opinion that if the plaintiff were to seek employment, he believes that in the interest of controlling her pain better in the long term, she should consider a sedentary type occupation.
97. In assessing damages, the court must take account of the fact that this plaintiff is a relatively young woman of forty-four years of age, who has had pre-existing degenerative changes in her neck. These have been rendered symptomatic as a result of the fall in May 2011. The prognosis for the future is somewhat guarded. In addition, she is entitled to be compensated for loss of opportunity on the job market, due to the fact that post-accident, she has been recommended to confine herself to sedentary type occupations.
98. In the circumstances, I award general damages for pain and suffering to date of €60,000.00; together with general damages for future pain and suffering, €30,000.00; and special damages of €588.00 giving a total award of €90,588.00.
William Egan & Sons Ltd v John Sisk & Sons Ltd and Lee Garage (Cork) Ltd
High Court
6 May 1985
[1986] I.L.R.M. 283
(Carroll J)
CARROLL J
delivered her judgment on 6 May 1985 saying: The main issue in this case is whether the plaintiffs’ claim for future loss of profits is too remote. The plaintiffs’ warehouse in Cork was flooded on 10 September 1981, due to the *284 defendants’ negligence (which is not in issue). In the warehouse there were brochures stored in preparation for the plaintiffs’ sales campaign in the mail order market in the United States. 100,000 fliers, or preliminary leaflets, had been posted in America in August inviting those interested to send $2 for the brochure which was a glossy up-market production. The brochures were a complete write-off as a result of the flood.
The sequence of events was then as follows: the plaintiff did not succeed in getting the brochures re-printed in time to post them for the Christmas market. It got approximately 16,000 responses to the fliers up to Christmas. It had to refund the $2 to every potential customer (thus losing a profit on the $2). It lost the Christmas market. It lost whatever was the re-order market the following year from satisfied customers. It lost whatever was the potential market from people who did not receive a brochure directly but who saw it in friends’ or relations’ houses or in offices. It incurred interest charges on a large increase in its annual purchases of Waterford glass, an order referable to the anticipated mail order business.
There were a number of other consequences in respect of which no claim is made. There was a strike in the business due to the inability of the plaintiff to get the mail order business going. There was a cash flow problem which necessitated the sale and lease-back of the plaintiffs’ premises in Patrick Street.
The test for remoteness of damages is foreseeability, i.e. whether the damage is of such a kind as a reasonable man would have foreseen (see the Wagon Mound; Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] 2 WLR 126). So the question is whether the damage flowing from the loss of brochures was foreseeable. The defendants say no one could have anticipated that the loss of brochures would have resulted in such a large claim for loss of profits and no one could have foreseen that the plaintiff would not have succeeded in getting the brochures reprinted within the time scale necessary to exploit the Christmas market.
The mail order business in the United States is well researched and is predictable to a reasonable extent. There was a considerable body of evidence to show that the Christmas market is the important one: that brochures must reach that market in time for customers to send their orders and receive them back in time for Christmas; that a proportion of those who order at Christmas one year will order again during the coming year, and that some orders come from those who see the brochures casually.
All of these consequences could have been foreseen by a person with a knowledge of the mail order business when the loss of the brochures was known.
It seems to me that the doctrine of foreseeability does not extend to expecting a defendant to foresee the type of goods which might be in a warehouse. If a defendant through its negligence injures property in a warehouse, it must take the responsibility for damaging whatever goods are there. There might be expensive furs, old masters, priceless antiques, first editions etc. It is also foreseeable that because a warehouse is part of the world of commerce, there will be economic loss and possible loss of profits. If the goods can be replaced at *285 cost, so much the better for the defendant; if the goods cannot be replaced, then the economic loss, including loss of profits, is foreseeable.
In my opinion the economic consequences of the loss of the brochures was immediately predictable at the time of the damage. What was unforeseen in this case was that the plaintiff could not get a reprint of the brochures in time. But this is a separate issue and concerns the duty of the plaintiff to mitigate. Different considerations apply. The plaintiffs’ duty is to take all reasonable steps to mitigate. If the court is satisfied that this was done, then the fact that the inability of the plaintiff to mitigate was unforeseable, is not relevant.
The defendants adduced evidence to prove that there probably was capacity in the printing business in Ireland in September, 1981. If printing started almost immediately a reprint might have been available to the plaintiff by early October. If so, these could have been posted in time to reach the Christmas market, to receive back orders and dispatch them in time. The timing would have been very tight with no margin for delays.
But the plaintiff proved to my satisfaction that Mr O’Donovan, the managing director, made what was for him all reasonable attempts to get a reprint and failed. He tried all avenues which he saw were open to him. I do not think he can be blamed for not making contact with Mr Masterson, the printer who gave evidence for the defendants, or Mr McCurry who is like a print broker and who might have found a printer for him.
In all the circumstances, I find that the plaintiff made all reasonable attempts to mitigate loss and the fact that it failed, does not in my opinion count against it.
Accordingly, the next issue is the damages: the extent of the plaintiffs’ future loss depends on the number of brochures destroyed. Even though the response to the fliers was extensive, the plaintiffs’ ability to respond was limited to the number of brochures which were on hand. I find considerable difficulty in deciding what number were probably there. After the accident Mr O’Donovan was asked how many there were, and he said probably between 8,000 and 10,000. Within a month he swore an affidavit to this effect. Over a year later he and some of the plaintiffs’ employees attempted to reconstruct the number from the records of the company and came up with a figure of 15,000. Mr Keane, the loss adjuster for the defendants said that such a reconstruction is notoriously unreliable.
I find it extraordinary that Mr O’Donovan, who was just on the point of entering the mail order business, who had done considerable research during the previous year in America, whose ability to respond to the fliers depended entirely on the number of brochures available to send out could so miscalculate as to say there were between 8,000 and 10,000 if there were in fact 15,000. The defendants have understandably put the plaintiff on strict proof because all the calculations of future loss of profit depend on this question of the number of brochures.
It seems to me that the initial calculation is probably more correct as it would be the number in Mr O’Donovan’s mind’s eye which he had to enter the main order market. Accordingly, I take the median figure of 9,000 as being the probable number of brochures.
7 May 1985
The following items of damage are agreed:
Repairs to roof
£1,300
Damage to contents
£1,765
Architects’ fees
£ 200
Miscellaneous packing materials
£3,000
Repacking costs after cleaning
£2,000
TOTAL
£8,265
The number of brochures I have found to be 9,000. The price is agreed at 50p = £4,500 (loss).
The number of presentation boxes has not been agreed. Mr O’Donovan estimated the number at 300 to 400. He said he could not be more accurate as they got a container every four to five years and used them as needed. In view of his obvious uncertainty, I am taking the lower figure of 300. The price per box is agreed at £15. This equals £4,500 (loss).
In arriving at the net loss of profit on the $2 sent for the brochures, in my opinion postage must be deducted as well as the cost of the $2. I have been given no evidence as to the cost of postage per brochure. Doing the best I can, I estimate 25 cents per brochure. This leaves a balance of:
$1.75 @ $1.649 per £ = £1.06p
less 50p
per box
Total
56p
9,000 × 56p =
£5,040
(net loss of profit out of the $2).
The average response with orders was estimated at 40% of 9,000 = 3,600.
The average order was £95 × 3,600 = £342,000 (initial orders).
Repeat orders were estimated by Mr O’Donovan as 50% but Mr Cregan said in his experience in his business which was very similar, the repeat orders would be approximately one third.
Taking that fraction, repeat orders at 1/3 of £342,000 = £114,000.
Initial orders
£342,000
Repeat orders
£114,000
ORDERS TOTAL
£456,000
I then did a check to see if the plaintiff would have had stocks to cope with this level of orders. Waterford Glass represents approximately 80% of export sales
= £364,800.
The orders for Waterford Glass were:
1981
excluding VAT £358,701
1980
including VAT at 20% or £106,160 excluding VAT £132,699
Assuming there was no increase in home sales in 1981 the extra stock available for export taking the VAT exclusive figures was: *287
£252,541
Add 38% mark up
£ 95,965
TOTAL potential retail sales price
£348,506
Therefore, there was a shortfall of £16,294 on projected Waterford sales of £364,800.
While the plaintiff cannot claim a profit on sales it could not fulfil because it did not have the stock, it would presumably have been possible to order in 1982 in respect of the repeat orders.
While I am satisifed to accept 43% as the gross profit, to include inbuilt profit on insurance and postage, I consider that there must be credits given in respect of postage which was not incurred, packing which was not used, wages which would have been paid in connection with the mail order business to employees who could be re-deployed, the upkeep of premises, and commission on credit card sales.
Mr Keane made a calculation based on the 1982 accounts only. However, it seems to me that deductions from the gross profit on the initial sales must be based on the 1981 accounts and deductions from the gross profit for repeat sales must be based on the 1982 accounts.
43% of 342,000 = £147,060 gross profit
43% of £114,000 = £ 49,020 gross profit
I will deal first with the deductions to be made from the gross profit on the repeat sales based on the 1982 accounts which were dealt with by Mr Keane. I do not know if I am right in taking the commission in the accounts as credit sales commission but I have no other way of knowing what proportion of sales were credit card and what were by cheque. From 1982 accounts the following are set out.
Commission
£ 12,687
Packing
£ 18,064
Bulk mailing
£ 18,177
½ of £268,651 for wages
£134,325
½ of £10,227 for heat and light
£ 5,113
TOTAL
£188,366
On a turnover of £1,270,658 the sum of £188,366 represents 14.82%.
14.82% of £114,000 (repeat sales)
= £16,894
Gross profit of £49,020 less deduction for expenses
= net profit £32,126
In relation to the initial sales the following figures are taken from the 1981 accounts. In respect of wages and heat and light I have only taken into account the last three months of 1981 as being notionally referable to the mail order business, i.e. ¼ of half the figure in the accounts: *288
Commission
£ 9,552
Packing
£11,699
Bulk mailing
£14,877
Salaries
£34,842
Heat and light
£ 1,466
TOTAL
£72,436
On a turnover of £1,063,617 the figure of £72,436 represents 6.81%:
6.81% of £342,000 (initial sales)
= £ 23,290
The gross profit of £147,060 less expenses at £23,290
= net profit £123,770
The total net profit
= £123,770
Plus
£ 32,126
TOTAL
£155,896
That figure takes no account of the vicissitudes of business. No business venture is completely safe and predictable, e.g. an assumption I am not prepared to make is that the Waterford glass in stock would have corresponded exactly with the orders from customers. A good businessman would know his market but not to the extent of forecasting with 100% accuracy what the customers were going to buy. There were bound to be no orders for some stock and over-ordering for others.
I propose to deduct 10% of the net profit in respect of normal business risks which leaves a total of £140,307.
I do not propose th find any damages for casual orders in the future, referred to as knock-on orders. The figures are too indeterminate and the time element is too uncertain. I do not consider the onus of proof has been discharged here.
In relation to the interest claim I consider that the VAT inclusive figure is the appropriate one as VAT is not reclaimed until after sale. The figures are as follows:
1981
£277,183
VAT inclusive less
1980
£132,689
VAT inclusive
= £144,494
This represents the increase in borrowing incurred for stock intended for the mail order business. 18% of that figure is £26,008.
I do not know when the stock started to be reduced. Some will have been sold during the year following the September 1981 and some will have been held over. I propose to give one year’s interest on the full amount, that is £26,008, say £26,000.
There is a further claim for cleaning up. It seems to me that the £2,000 allowed for repacking includes an element of this cleaning. However, I will allow a further £500 for cleaning up apart from the repacking.
The next claim is for damage to the interior of the building £5,984 plus £732 cleaning = £6,716. Mr Ahern gave these figures as an estimate for work to be done. But he had no idea if the work was carried out.
Work was in fact done on the roof and to the interior and the sum of £2,700 was paid. Out of this the sum of £1,300 for the roof was agreed and £200 architects’ fees, total £1,500. That leaves a balance of £1,200 attributable to work done on the interior but with no details at all about what was done or what the work cost. Therefore, I do not know by how much the estimate by Mr Ahern should be reduced. I am prepared to allow another £1,000 for damage to the interior which occurred but was not repaired. Therefore, the total for damage to the interior is £2,200.
For general disruption I will allow the figure of £4,880. Summary of damages:
Agreed
£ 8,265
Brochures
£ 4,500
Loss on $2
£ 5,040
Loss of profit
£140,307
Interest
£ 26,000
Interior damage
£ 2,200
Cleaning
£ 500
General disruption
£ 4,800
TOTAL
£196,200
Riordan’s Travel Ltd and Riordan’s Shipping Ltd v Acres and Co Ltd,
G. & T. Crampton Ltd and Matthew O’Dowd Ltd
1974 No. 1036 P
High Court
17 January 1979
[1979] I.L.R.M. 3
(McWilliam J)
14 November 1978 and 17 January 1979
McWILLIAM J
delivered his judgment on 14 November 1978 saying: Although some other forms of relief were claimed in the pleadings, this matter now comes before me on a claim for damages only.
The plaintiffs are associated companies and in December 1971 Riordan’s Shipping Ltd became the assignee of a term of years created by an indenture of lease made 23 June 1964 between James Etchingham and James Edward Keane whereby a shop at No. 11, Lower Baggot Street was demised for the term of 21 years from 1 July 1964 at the yearly rent of £225. The lease contained a covenant by the lessor to keep and maintain the roof and exterior of the premises in good and sufficient repair and condition and the usual covenant for quiet enjoyment. I have not been required to make any distinction between the individual interests of the two plaintiffs.
The defendant, Acres & Company Ltd (hereinafter described as Acres), was at all relevant dates the successor in title of the said James Etchingham and the owner of an interest in the entire of No. 11, Lower Baggot Street. Acres also owned the adjoining premises at Nos. 9 and 10, Lower Baggot Street and had plans prepared for their demolition and for the development of the sites left vacant by the demolition. Acres has not been represented at or taken any part in these proceedings.
Acres employed the defendant, G. & T. Crampton Ltd (hereinafter described as Crampton) to carry out this work under the direction of the architect employed by Acres.
Crampton employed the defendant, Matthew O’Dowd Ltd (hereinafter described as O’Dowd), to carry out the demolition work.
The plaintiffs commenced a travel agency business in January 1972, in the shop assigned to them as aforesaid. They had previously carried on a similar business in Limerick for a number of years but had there been principally engaged in the business of shipping and cruising agents.
On 13 July 1973, when the demolition and excavation work had reached an advanced stage, the side of the premises at No. 11, Lower Baggot Street, collapsed so that the plaintiffs were entirely deprived of the use of the premises and had some of their property damaged or destroyed. They were reinstated in new apartments in the new building on the site of their old premises in January 1975, eighteen months after the collapse of the old building. Their claim for damages falls under three headings: (a) the value of the equipment damaged or destroyed; (b) the rent of alternative accommodation from the time of the collapse until their return to the new offices; (c) loss of profits from being deprived of the use of their premises.
(a) With regard to this part of the claim, values were given for a large number of items but very few of them were actually vouched and, owing to the disturbance, no satisfactory records were kept. This makes it very difficult to make an accurate estimate of the loss under this heading. Doing the best I can I will allow the following items:
Olivetti adding machine
£20
Dictating machines
£35
Typewriter repaired
£50
Typewriter destroyed
£100
Addressograph
£17
Gestetner machine
£70
P.A.B.X. telephone system
£300
Front display window
£250
Burglar-proof window grill
£212
Shop sign
£106
Brochure display racks
£50
Filing cabinets
£50
Coffee table
£10
Stationery destroyed
£300
Signs for temporary premises
£36
Advertisements notifying change
£183 *6
Sundry expenses connected with moves
£250
The total of these sums comes to £2,027.
(b)
Apartments in Shelbourne Hotel
£291.68
Premises at 126 Lower Baggot Street
£7,327.50
Rates on these premises
£334.40
Legal expenses
£44.00
The total of these sums comes to £7,997.58
(c) In order to calculate the loss of profits due to disturbance, evidence has been given on behalf of the plaintiffs of a projection made in December 1972, based on the business done during 1972, for the target for 1973. This projected an increase of 60% on the 1972 turnover. The turnover for 1972 is stated to have been £56,000. The plaintiffs estimate their commission at 10% from which would have to be deducted all expenses in order to calculate the profits. The accounts produced are amalgamated with the Limerick accounts but I have been given evidence that the profits for 1973 on an actual turnover of £76,102 was £448. Had the projected target of £90,000 been reached, there would have been an additional commission, at 10%, of £1,390 and it is suggested that this would have been all profit as the overhead expenses would not have been increased by the extra business conducted. Further projections were made for the years 1974 and 1975 based on the original projection for 1973, and these made estimates for continued substantial increases in turnover with proportionately greater increases in profits. I am satisfied that there was a reduction in business due to the conditions under which the plaintiffs had to work but there are too many imponderables, such as the increase in oil prices and resulting increases in fares, for me to accept as accurate the figures presented on these projections. In the absence of any reasonably accurate method of estimating the losses, and looking at the increases in business actually achieved, I will allow a sum of £1,000 for each of the first two years and a sum of £500 for the third year, i.e. a sum of £2,500. The total damages amount to a sum of £12,524.
I now come to the liability of the various defendants for payment of these damages. It has not been argued that any of the defendants is not liable for the collapse of No. 11, Lower Baggot Street, but it is argued on behalf of Crampton and O’Dowd, and I have cogent evidence to this effect, that Crampton could have reinstated No. 11, Lower Baggot Street in anything from six weeks to three months from the date of the collapse and that they were ready to do so but that Acres seized the opportunity of extending the development by taking in No. 11 and refused to allow the work of reinstatement to commence. In the event, the evidence is that the new development of No. 11 was commenced and finished within three months. Whether the period be six weeks, eight weeks or three months, I am satisfied that any delay beyond this period was due to the refusal of Acres to permit the work of reinstatement to be done, and it is argued very strongly on behalf of Crampton and O’Dowd that they cannot be made liable for any loss arising from the plaintiffs being kept out of their premises for longer than that period. In this connection I have been referred to s. 11 of the Civil . Subsection (1) provides as follows:
For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.
Subsection (3) provides as follows:
Where two or more persons are at fault and one or more of them is or are responsible for damage while the other or others is or are free from causal responsibility, but it is not possible to establish which is the case, such two or more persons shall be deemed to be concurrent wrongdoers in respect of the damage.
It is argued that Crampton and O’Dowd are free from any causal responsibility for any loss occurring after the period within which they could have reinstated the property, and that this is implied in subsection (3). I was not referred to any authority in support of this proposition and it seems to me that I have first to decide under subsection (1) what damage each of the parties is responsible for. I have always understood the position to be that, where a defendant’s breach of duty is the primary and substantial cause of the damage sustained, he will be responsible for the whole loss ensuing even though it may have been increased or contributed to by the wrongful conduct of a third person. It is not suggested that all three defendants are not concurrent wrongdoers within the meaning of subsection (1) with regard to the substantial and primary cause of the damage to the premises and it does not seem to me that I am required to apportion the liability of each defendant to the plaintiff according to the actual loss caused by the specific acts of each defendant.
I have been referred to the judgment of Butler J in a case brought against the same defendants by the tenant for life of the upstairs flat in the same premises in which he did apportion the damages between the defendants, but the circumstances of that case were quite different in that Acres permanently appropriated a large part of the plaintiff’s premises and the main damage was calculated on an actuarial basis of the value of a life estate in the part misappropriated by Acres. Permanently depriving the plaintiff in that case of a substantial portion of her property had nothing whatsoever to do with the collapse of the building although that collapse may have given Acres the opportunity to commit the trespass and Crampton and O’Dowd were not responsible for damage due to this cause. Nothing of this nature applies to the present case and it appears to be accepted that the plaintiffs have been returned to suitable premises on the site of their old premises.
Under the circumstances, I will make the decree against all the defendants.
McWILLIAM J
(read by Costello J) delivered his second judgment on 17 January 1979 saying: This matter has been re-entered for argument with regard to an item of damages claimed by the plaintiffs which I overlooked when giving judgment in November. These damages relate to interest on money which the plaintiffs claim that they had to borrow in order to pay for alternative premises while they were kept out of the premises which were totally destroyed as a result *8 of the negligence of the defendants.
The arguments before me have been very largely concerned with the plaintiffs’ claim to recover interest charges for money which they had to borrow because they did not have sufficient funds of their own to pay for the alternative premises. I think that a somewhat different approach is required, and that it is essential to consider first the basis on which the plaintiffs were obtaining alternative premises. As their original premises were totally destroyed, they would have been put out of business completely had they not taken steps to acquire new premises as speedily as possible. Thus the money which was borrowed was borrowed for the purpose of mitigating their loss and it appears to me that there is or may be a distinction between the principles applicable to interest on money actually expended on mitigating loss and interest claimed in other connections, as on the amount of a final decree. Whether there is or is not any justification for such a distinction, and I instance cases where damages have been awarded on the basis of the value of property at the time of its loss or destruction, is not relevant to the issues in this case, but it has not been the practice in Ireland to award interest on the amount of a decree from the date when the cause of action arose until the date of the decree and it has not been argued that I have any jurisdiction to award such interest. Nevertheless, I have been referred to English cases in which interest upon the entire decree was allowed or refused under a discretion to do so given by the Law Reform (Miscellaneous Provisions) Act, 1934. This Act gave the English courts discretion to award interest for any period between the date when the cause of action arose and the date of judgment. In so far as these decisions depend upon the express provisions of the English statute they are not relevant to a discussion of the principles upon which interest may be allowed on the amount of a decree in Ireland and do not deal at all with interest on money borrowed to mitigate loss.
In Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Co. Ltd; The Wagon Mound [1961] AC 388 the law with regard to liability and damage was reviewed and it was laid down that liability for damage arising as a result of a negligent act depends upon whether that damage is of such a kind as a reasonable man would have foreseen. In the present case any reasonable man must have foreseen that the plaintiffs’ business must cease and the plaintiffs thereby sustain a very great loss unless they could obtain new premises in which to continue business.
In Harbutts Plasticine Ltd v Wayne Tank Co Ltd [1970] 1 QB 447, Widgery LJ said at p. 216 that each case depends upon its own facts, it being remembered that the purpose of an award of damages is to restore the plaintiff to his position before the loss occurred and that a plaintiff must act reasonably to mitigate his loss. With regard to acting reasonably to mitigate loss I would refer to the passage from Mayne on Damages approved by Davies LJ in Moore v DER Ltd [1971] 1 WLR 1476 at p. 1479, that
although the plaintiff must act with the defendant’s as well as with his own interest in mind, he is only required to act reasonably, and the standard of reasonableness is not high in view of the fact that the defendant is an admitted wrongdoer.
I will return to this aspect later.
As I have said, the plaintiffs in the present case have put their claim for interest on the basis that the money had to be borrowed as they had no funds available to enable them to make arrangements to carry on their business and so mitigate their loss. To the claim made in this form the defendants rely very strongly on Owners of Dredger Liesbosch v Owners of SS Edison [1933] AC 449. In this case it was held that the impecuniosity of the appellants which necessitated additional expenditure was a matter which could not be taken into account in assessing damages even though, under the circumstances, the additional expenditure might be reasonable. I have had difficulty in following some of the reasoning of Lord Wright at pp. 460 and 461 of his speech in this case. A dredger was sunk and rendered a total loss as a result of the admitted negligence of the respondents. The appellants did not have sufficient funds to enable them to replace the dredger which had been sunk although one could have been obtained within a reasonable time had they had sufficient funds with which to purchase it. As they had no funds, they hired a more expensive dredger which they eventually purchased with the assistance of the harbour board for whom they were working. The appellants claimed the cost of hiring the more expensive dredger and the cost of its subsequent purchase. Both of these claims were disallowed and, on this aspect of the case, the appellants were only allowed the value of the similar dredger which could have been purchased as a replacement shortly after the loss of the original dredger. Lord Wright said, at p. 460,
If the appellants’ financial embarrassment is to be regarded as a consequence of the respondents’ tort, I think it is too remote, but I prefer to regard it as an independent cause, though its operative effect was conditioned by the loss of the dredger.
This passage indicates that Lord Wright was considering whether the financial embarrassment was a consequence of the loss of the dredger or not and whether the financial embarrassment was a cause of loss quite independent of the sinking of the dredger and that he did not consider it relevant to deal with the question of mitigation and what the duty to mitigate loss entails. This is confirmed by his statement on the following page where, after referring to a dictum of Lord Collins with regard to the lack of means to mitigate loss, he said
I think it is clear that Lord Collins is here dealing not with the measure of damage, but with the victim’s duty to minimise damage, which is quite a different matter.
To me, the issue on this aspect of the Liesbosch case should have been whether, on the facts of that case, the appellants acted reasonably to mitigate their loss or not. The suggestion that the appellants’ financial situation at the time of the dredger was sunk could have been a consequence of the tort is inappropriate in the context; it was a consequence of the appellants’ financial situation at the time their dredger was sunk that they could not buy a new dredger and so mitigate the loss to the fullest. Nor does it appear to me to be satisfactory to describe the appellants’ financial embarrassment as an independent cause of damage. There would have been neither damage nor embarrassment if the respondents had not negligently sunk the dredger. There was no financial embarrassment at the time the dredger was sunk which effected the appellants’ capacity to operate the dredger *10 if it had not been sunk. The dredger was totally destroyed and the financial embarrassment, which does not appear to have been significant before the sinking, only affected their capacity to mitigate the loss. If I am correct in my appreciation of this part of the speech and I make it with hesitation in view of the eminence of the court and the fact that the question of mitigation was raised in argument, it follows that the decision is not of assistance on questions arising from the incapacity of a plaintiff to mitigate damage to the greatest advantage of a defendant.
I have also been referred to a decision of the President of the High Court delivered on 21 November 1977, in Quinn v Quality Homes Ltd. The President did not refer to the Liesbosch case but he awarded damages on the basis that, because the plaintiffs were not in a financial position to mitigate their loss, it would not be reasonable to assess their damage as being the value of property at the time the cause of action arose, and he assessed it at the increased value which property had reached at the time of judgment.
I am not here concerned with a failure to mitigate loss. I am concerned with the recovery of the full cost of actually mitigating loss. In either event it appears to me that the statements of Widgery LJ and Davies LJ, and the principle laid down in the Wagon Mound case preclude the enunciation of any hard and fast rule that impecuniosity can never be taken into account in the assessment of damages. On a question of mitigation a plaintiff is only required to act reasonably and whether he has done so or not is in every case a question of fact and not of law. ‘Acting reasonably’ to me means doing the best a plaintiff can in the circumstances in which he finds himself.
Although it appears to me that no question of foreseeability by a defendant arises with regard to the question of mitigation of damages, I am satisfied that any reasonable man in business circles at the present time must appreciate that, if property and premises are destroyed and alternative property and premises have to be obtained, the person obtaining such property or premises will not have money in a stocking under a mattress or even in current account for that purpose, but will either have to apply money which is bearing interest and so lose that interest or will have to borrow money and pay interest on the money borrowed.
In each case it is for a plaintiff to establish his loss and show that, having regard to his circumstances, he acted reasonably to mitigate his loss. On the facts of the present case I take the view that the plaintiffs are entitled to recover such interest on their expenditure on alternative premises as they can establish to be reasonable.
I estimated the loss to the plaintiffs in obtaining alternative accommodation while deprived of the premises which had been destroyed at approximately £8,000, but the claim only concerns a sum of £4,113 which, as the plaintiffs have given evidence, was expended and in respect of which they have had to pay a sum of £3,800 for interest. The way in which this capital sum has been verified is that a separate account was opened and used solely for the purposes of these expenses and the interest charged by the bank in respect of it has been claimed. This method of dealing with the situation has the advantage of simplicity, but there are other ways of raising money or providing money although no evidence was given by *11 either side as to this or, indeed, as to interest rates generally and it seems to me that interest should not, without further evidence, necessarily be given at bank overdraft rates. I do not suppose any of the parties are anxious to have the matter re-entered for further evidence and I propose to allow interest at the rate of 10% per annum. This amounts to the sum of £2,055 for the five years in question and I will increase the decree by this figure. If, contrary to the view I have formed, foreseeability by a defendant is an element to be considered with regard to mitigation of damages, this would be an appropriate rate for the defendants to have had in mind.
White and Morrissey v Boyle
High Court of Justice.
20 January 1926
[1926] 60 I.L.T.R 30
Hanna J.
Jan. 20, 1926
The judgment of the Court was delivered by Hanna, J.
Hanna J.
It is argued that the Circuit Judge misdirected himself in law in applying the test as to whether the death of the cattle was the natural and reasonable consequence of the defendant’s omission to fence and herd, and that this being a case of tort—negligence—under the authority of Re Polemis and Furness, Withy & Co. (supra) the test of remoteness is whether the damage is the direct result of the negligence. The test as to remoteness of damage would seem to be different in cases of breach of contract and in cases of tort. In contract, nothing is too remote that is held to have been a natural result, that is, within the reasonable contemplation of the parties to the contract, in case of breach—or, as is sometimes said, which might have been reasonably anticipated. In tort, Polemis’s case seems to decide that the tort-feasor is responsible for any loss actually or in fact flowing from the tort, whether anticipated or not. The non-fencing and the non-herding, alleged in this case, were breaches of contractual duty, and, in so far as these tests are applicable, are not torts, as contended by the plaintiff’s counsel. Therefore Judge Sealy was not wrong in law, but was in our view wrong in his finding of fact. Scrutinising carefully the evidence, I am of opinion that this damage might reasonably have been anticipated. The first fence was defective. The herd did not do his duty as regards the fences or herding. The contract was one to fence and herd and almost made the defendant an insuror. In the opinion of the Court both plaintiffs and the herd knew that there was a source of danger in the churchyard. If they did not know, they ought to have known. The second fence was not a proper fence either. The damages were not too remote. Defendant might be expected to foresee that the damages complained of would result from the breaking of the first fence. The Order of the Circuit Judge must be reversed, and a decree given for £120 with costs of the appeal and of the Court below.