Special Damages
Cases
Boyne v. Bus Atha Cliath and Anor
[2002] IEHC 135 (11 April 2002)
Judgment of Mr. Justice Finnegan delivered the 11th day of April 2002.
The Plaintiff resides at 9 Ebenezer Terrace, South Circular Road, Dublin and is a single man aged 3 8 years. He is a diesel mechanic by occupation and at the date of the accident giving rise to this claim was in the employment of a haulage company specialising in the delivery of ready mixed concrete. On the 20th January 1999 at 11 p.m. approximately he sustained serious injuries as a result of his being run over by the first named Defendant’s bus driven by the second named Defendant.
On the clay in question the first named Defendant’s 51B bus left Dublin city centre at :10.30 p.m. to travel to Bawnogue. The Plaintiff boarded the bus at Thomas Street. On that day he had finished with his employer at approximately 8 p.m. Thereafter in an adjoining premises he had carried out work on a car in a private capacity and delivered the repaired car to Baker’s public house in Thomas Street at approximately 9 p.m. He had something to drink there and later that evening had some more to drink in O’Neill’s public house in Thomas Street. In total he admits to having had six pints. He boarded the Defendant’s bus but thereafter has no recollection of the events of the evening.
Derek McKeown was a passenger on the bus at the back of the lower deck. He saw the Plaintiff board. It was immediately apparent to him that the Plaintiff had drink taken. The Plaintiff sat in the side seat on the left hand side of the bus. During his journey he was swaying in the seat. The Plaintiff and Mr. McKeown alighted at the same bus stop. Mr. McKeown pressed the bell and moved towards the front of the bus but before he got there the Plaintiff stood in the aisle without making any progress towards the door at the front of the bus. Mr. McKeown passed him and stood at the door. When the door opened Mr. McKeown sprang from the bus to the kerb a distance which he estimated at some 4 – 5 ft. Shortly thereafter he heard a moan and on looking around saw the Plaintiff in contact with the centre doors of the bus and being spun by the motion of the bus, then falling to the ground and being run over by the rear wheel of the bus which continued on its journey.
The accident was investigated by Garda Connolly. He found blood on the roadway some eleven feet distant from the bus stop in the direction in which the bus was travelling and some one foot from the kerb. I am satisfied that this represents the locus of the accident which accordingly was somewhat closer to the kerb from that indicated by the evidence of Mr. McKeown.
Mr. Barry Tenneyson gave evidence on behalf of the Plaintiff. From his evidence I am satisfied that the distance from the front of the bus to the centre of the centre doors is fourteen feet. ‘Taking this measurement together with the distance from the bus stop to the point: at which blood was found I find that the bus had travelled some 25 feet before it came into contact with the Plaintiff. A necessary corollary of this is that on alighting from the bus the Plaintiff’ proceeded past the front of the bus and in the direction of travel of the bus and that the accident occurred in the course of the bus overtaking the Plaintiff.
The second named Defendant the driver of the bus recalled the Plaintiff boarding the same at Thomas Street. The Plaintiff appeared to be very drunk. He had difficulty getting on and had sat on the step and indeed the witness had some concerns as to whether he should carry the Plaintiff and kept an eye on the Plaintiff throughout the journey. I can summarise his evidence as to the Plaintiff s demeanour by recording that he was pleasantly drunk. The Plaintiff’ got up as the bus approached the stop at which he was to alight. Before getting off he put: 50p in the bus driver’s tray presumably by way of a gratuity. He was slow getting off and once he had alighted the driver had no further recollection of him. He was completely unaware; of the accident.
Liability
The foregoing is the totality of information available to me as to how the accident occurred. In particular I do not know if the Plaintiff reached the footpath and there lost balance and stumbled against the bus or if he was walking along the roadway. Of the two possibilities I take it as the most likely having regard to the evidence of Mr. McKeown that the bus stopped some distance from the pavement and that the Plaintiff never attained the footpath. Having regard to the point of impact he proceeded past the front of the bus and in the direction of travel of the bus and that the accident occurred in the course of the bus overtaking him while he was on the roadway. The second named Defendant was well aware of the Plaintiff s condition and ought to have taken particular care by keeping him under observation to ensure that the bus would pass him in safety: see McKevitt v Ireland 1987 I.L.R.M. 541. This he did not do as his evidence was clear that he lost sight of the Plaintiff once he had alighted from the bus.
Contributory Negligence
The Defendants plead contributory negligence and give the following particulars:
(a) Failing to have any or adequate regard for his own safety.
(b) hailing to look where he was going.
(c) Exposing himself to a risk of danger or injury of which he knew or ought to have known.
(d) Needlessly endangered himself.
(e) Failing to pay attention or sufficient attention to what he was about.
(f) Failing to have any regard for his own safety in exposing himself to a risk of injury by reason of the excessive consumption of alcohol.
(g) If the Plaintiff did fall, by himself causing the Plaintiff to fall.
(h) The Plaintiff was the author of his own misfortune.
The onus of establishing contributory negligence is on the Defendants. Where there is no direct evidence reliance must be placed on inference as a matter of probability as to what occurred: Clancy v Commissioners of Public Works in Ireland 1992 2 I.R. 449 at 467. Upon this basis I find that the Plaintiff due to his intoxicated state while on the roadway and before attaining the footpath stumbled and fell against the bus and then under the wheels of the bus. Counsel were unable to assist me with authorities as to how the court should approach the issue of contributory negligence having regard to the Plaintiffs state of intoxication.
The matter is dealt with in Charlesworth on Negligence Eighth Edition at paragraph 3 – 48 as follows –
“The excuse of drunkenness has to be regarded when considering contributory negligence. It is no excuse for failing to take reasonable care to prove that the person in question was unable to take proper care, owing to the influence of drink or drugs, which he had taken voluntarily. A drunken man cannot demand from his neighbour a higher standard of care than a sober man or plead drunkenness as an excuse for not taking the same care of himself when drunk as he would have taken when sober. (M’Cormick v Caledonian Railway (1903) SF362) “.
In Kilminister v Rule (1983) 32 S.A.S. R 39 where a person under the influence of drink stepped into the roadway in front of a car at night and was killed he was held to have contributed to the accident to the extent of 35%. I cannot see that this differs in any way from the outcome which would be expected if the Plaintiff had been sober.
In a number of cases this issue arose in circumstances where the Plaintiff was so intoxicated that he did not realise that the driver of the car in which he had taken a lift was himself unfit to drive through drink. The first of these Dann v Hamilton (1939) 1 All ER 59 was argued and determined on the basis of volenti, the Plaintiff’s Counsel having declined the trial Judge’s invitation to amend his pleadings and include a plea of contributory negligence: see 69 L.Q.R. (1953) 317. 1 find the discussion in other such cases e.g. Nettleship v Weston (1971) 3 All ER 581 unhelpful. However in an Australian case Insurance Commissioner v Joyce (1948) 77 C.L.R. 39 at 47 Latham L. J. said –
“If… the Plaintiff was sober enough to know and understand the danger of driving with (the Defendant) in a drunken condition he was guilty of contributory negligence …. but if he was not sober enough to know and understand such a danger … if he drank himself into a condition of stupidity or worse, he thereby disabled himself from avoiding the consequences of negligent driving by (the Defendant), and his action fails on the ground of contributory negligence “.
As I understand this whether the Defendant was under the influence of drink only to the extent that he knew or ought to have known and understood the risk he was running or whether he was so under the influence that he was incapable of so knowing he is nonetheless guilty of contributory negligence.
In McKevitt v Ireland 1987 I.L.R.M. 541 at 546 Finlay C.J. said –
“The finding by the Jury that the Plaintiff was guilty of contributory negligence implies a finding that he had by the time of the commencement of the fire sufficiently recovered from his drunken condition to owe a duty to take reasonable care for his own safety which he failed to discharge “.
At first sight this might be seen as authority for the proposition that a Plaintiff so under the influence of drink that he did not know or ought not to have known of the risk to his own safety would not be guilty of contributory negligence. The statement must be read in conjunction with the facts of the case. The Plaintiff was in police custody while drunk and injured himself by setting fire to his cell with matches which a search had not uncovered. The Supreme Court held that a finding of 15% proportion of fault against the Plaintiff was unreasonable to the extent that it should be set aside. I think it likely that the Learned Chief Justice was having regard to the duty which rested upon the Defendant in the circumstances of that case: In short the greater the degree of intoxication of the Plaintiff to the knowledge of the Defendant the more onerous the duty of care on the Plaintiff. The statement merely acknowledges the effect of Donohoe v Stevenson on the principle enunciated in M’Cormick v Caledonian Railwav.
In McEleney v McCarron and Another (1993) 2 I.R. 132 an accident occurred when the Plaintiff’ who was drunk was being assisted to his home by two girls and he fell onto the road. The girls had succeeded in moving his body such that his legs were on the footpath and his torso on the road when the second Defendant’s car approached. The girls moved onto the footpath and attempted to attract the attention of the Defendant. The Defendant believed the girls wished to thumb a lift and did not stop his car and ran over the Plaintiff s head causing him severe personal injuries. In the High Court the Plaintiff was found guilty of contributory negligence and fault was apportioned 30% to him. The Defendant appealed to the Supreme Court where it was held that the Defendant in the circumstances of that case was not negligent. The court expressed no opinion on the questions of contributory negligence and the apportionment of fault.
In Judge v Reape (1968) I.R. 226 the facts were that the Plaintiff had consumed a considerable amount of alcohol before accepting a lift in the Defendant’s motor car when he knew or ought to have known that the Defendant was drunk. The Defendant did not deny negligence but pleaded that the Plaintiff well knew that the Defendant was drunk and so was guilty of contributory negligence. The jury found that the Plaintiff had not been negligent. The Supreme Court on appeal found that there was plain evidence of contributory negligence and ordered a retrial. Counsel for the Respondent on the appeal relied on passages from Insurance Commissioner v Joyce but not the passage which I have quoted above. The passage quoted in the Judgment and it appears to me accepted as correct by the Supreme Court is as follows –
“If a passenger in a motor car is himself drunk so that he does not realise that the driver of the car is also drunk and allows himself to be driven, he is guilty of contributory negligence in the event of a collision”.
From the foregoing it seems to me that the following principles can be gathered –
(1) If the Plaintiff is under the influence of drink to an extent that affects his ability to take care of himself and whether he knows or ought to know of the risk he is running this is a factor relevant to the existence and the extent of the Defendant’s duty of care.
(2) In assessing the Plaintiff s conduct for the purposes of contributory negligence his intoxicated state is to be disregarded and this is so whether notwithstanding his intoxicated state he knew or ought to have known of the risk which he was running or was incapable of so knowing.
In the circumstances of this case in apportioning liability I take into account the circumstance that the second named Defendant was aware of the intoxicated condition of the Plaintiff and the extent of his intoxication and evaluate his conduct accordingly. Insofar as the Plaintiff is concerned I evaluate his conduct as if he were sober. I am satisfied that the Defendants on that basis did not take reasonable care for his own safety. If sober he would have moved himself promptly to a position of safety some little way from the bus and would not have stumbled against and under the bus as he did. I apportion liability 75% to the Defendant and 25% to the Plaintiff.
General Damages
The Plaintiff sustained horrific injuries which can be summarised as follows:
(1) A degloving injury of his right lower limb extending from his upper thigh to his distal tibia.
(2) An ischaemic right foot secondary to transection of his right popliteal vessels.
(3) A compound comminuted fracture of the mid shaft of the right femur.
(4) A compound comminuted grade 3 (c) fracture of the right tibia.
(5) A bruised and swollen left ankle with an area of skin necrosis.
He was treated at Tallaght Hospital with the application of an external fixator to his right femur and his right tibia and debridement of his wounds and a repair of his right popliteal vessels. He was an in-patient in Tallaght Hospital for almost six months. He had some 21 procedures, 20 of which were under general anaesthetic and one under local anaesthetic. From an orthopaedic point of view the movement of his right knee is virtually non existent and in the right ankle he has a passive range of movement of just 10° so that he is just able to get his heel to come to the floor. In the opinion of Mr. Borton his limb is viable but constantly very painful. His left leg is functioning normally. The right leg is virtually useless. In the future the question of amputation may arise in which event there will be some difficulties in fitting a satisfactory prosthesis in view of his extensive scaring. His ability to work is seriously compromised although he could do sedentary or office work which did not require physical exertion. In addition he sustained a severe degloving injury and now has severe scaring on both legs and also on the donor site for numerous skin grafts. Skin grafts became infected and took several months to heal. Not surprisingly the Plaintiff developed a reactive depression in February/March 2000. Fortunately this improved over time. However he still suffers from mild to moderate mood changes and anxiety – he is a nervous passenger. It is expected that his psychiatric condition will resolve. It is worth recording that Mr. Pegum in evidence expressed the view that it would have been better for the Plaintiff had his leg been amputated at the beginning as this would have resulted in less pain, more function and an overall better result.
On the basis of the admitted medical reports and the evidence of the Plaintiff and of Mr. Pegum [ assess the Plaintiff’s claim for general damages as follows:
Pain and suffering to date £75,000
Pain and suffering into the future £75,000
Total: £150,000
Special Damages
The Plaintiff’s special damages have been agreed save and except the claim in respect of future loss of earnings. The agreed special damages are as follows:
Medical and related expenses £60,111.77
Loss of earnings to date £43,019.77
It is agreed between the parties that the Plaintiff’s future loss of earnings should be calculated on the basis of a net weekly loss of £175. The task of the court in assessing damages wider this heading is to arrive at a lump sum which represents as nearly as possible full compensation to the Plaintiff. In this case the multiplicand has been agreed but the parties differ as to the multiplier – there is no agreement as to the assumed real rate of return on capital that is the return net of tax and management expenses and the assumed rate of inflation. The higher the assumed real rate of return on capital the lower will be the lump sum award. The courts have taken the approach that inflation can be taken into account by the assumption that a Plaintiff can invest the lump sum award and more particularly that the same can be invested partly in equities and partly in gilts resulting in both a hedge against inflation and a reasonable degree of security. In the United Kingdom this approach was reviewed in detail in Wells v Wells 1998 3 All ER 481 that review being prompted by the availability in the United Kingdom of index-linked Government stock which in addition to providing an income also guaranteed that the capital sum preserved its real value by being index-linked to the retail price index. It is against the background of the availability of such an investment that the dicta in Wells v Wells must be considered. There is no equivalent investment available in this jurisdiction and accordingly to avail of that investment available in the United Kingdom would carry with it an exchange risk as a result of which the security which such an investment offers would be undermined. Within the Euro zone similar investments are available in France but again the security offered is undermined by the possibility of divergent rates of inflation between France and Ireland. For the foregoing reasons I do not consider the availability of index-linked Government stock whether in the United Kingdom or in France as relevant to the approach this court should adopt in arriving at an appropriate lump sum award. Having regard to the range of investments available in this jurisdiction, in the euro zone generally, in the United Kingdom and other economies and having regard to the general requirement of a Plaintiff that he act reasonably to mitigate his damages it seems to me that the approach of the Court of Appeal in Wells v Wells is the appropriate one to adopt –
“It is for the court to hold the balance evenly between both sides, and just as the Plaintiff is entitled to an award which achieves a nearly as possible full compensation for the injuries sustained, so also we think the Defendant is entitled to take advantage c f the presumption that the former will adopt a prudent investment strategy once he receives his award. Furthermore the court, which as already noted, is dealing with probabilities when fixing the multiplier, can and should pay regard to the high probability that the Plaintiff will invest prudently; any other approach would be artificial. ”
I am satisfied that a prudent investor having a lump sum to invest would apportion the same between gilts and equities the apportionment in any particular case however depending on his particular circumstances.
As to the proportion of a fund which should reasonably and prudently be invested in equities and gilts the evidence before me is that the average for 18 Irish managed funds is that 70% is invested in equities and 30% in gilts (to include 5.6% in property and 4.7% cash deposits). I consider this approach as a reasonable and prudent one. I accept the evidence given on behalf of both the Plaintiff and the Defendants that there is no such thing as a risk free investment and that the risk associated with investment in gilts is less than that in investment in equities. As against this a prudent investor whether managing his own funds or partaking in a managed fund will spread the risk associated with equities. As of the 31st December 2001 the typical Irish find had approximately 18% of its equities in Irish equities and the remainder spread between the United Kingdom, the euro zone, North America, Japan and the Pacific excluding Japan as a means of minimising risk. The beneficial effect of such a policy was made apparent by the events of February this year when the share price of Elan (22% of the Irish index) and AIB (14% of the Irish index) lost 65% and 13% of their value. The ten largest Irish managed funds had an average exposure to these two shares of 2.3% of their total funds. It seems to me that this puts in perspective the risk associated with prudent investment in equities. In calculating the real rate of return on equities allowance is made for management charges.
The suggested split between equities and gilts at 70% and 30% is not constant or appropriate in every case and the appropriate split will be determined by the anticipated duration of the fund the shorter that period the greater percentage of the fund which should be maintained in gilts. For the last five years of such period it would be appropriate to have the bulk if not all of the fund in gilts or on deposit to minimise the risk of having to realise equities in a depressed market. In Wells v Wells Lord Lloyd said –
“So it does not follow that a prudent investment for the ordinary investor is a prudent investment for the Plaintiffs. Equities may well prove the best long term investment. But their volatility over the short term creates a serious risk … If there is a serious fall in equities in the first five or ten years during which the Plaintiff will have had to call on part of his capital to meet his needs and will have had to realise that part of his capital in a depressed market the depleted fund may never recover “.
Notwithstanding this it does not seem to me that investment managers having custody of pension funds can be said to be imprudent. Again the investment policy of the Wards of Court Office on advice follows a general policy in relation to longer term funds, that is over ten years, of maintaining a 70% 30% equities gilt split. I therefore consider that course to be one which a prudent investor would follow and I regard the Plaintiff as having a duty to act reasonably to mitigate his damages and that it should be assumed that he will follow the course of a prudent investor.
The next matter to be determined on the basis of the evidence is the return to be expected if such an investment policy is pursued. Firstly in this regard I adopt the view of the House of Lords in Wells v Wells that in the case of a Plaintiff it should not be assumed that the income on investments will be reinvested. However it seems to me that some account must be taken of the possibility of investing income. If one assumes that income is received at the end of year one and applied rateably throughout year two then throughout year two a decreasing proportion of the income will be available for investment for example by placing on interest bearing deposit: a reasonable approach would be to assume for the purposes of calculations that the entire interest earned in year one would be available to be placed on deposit for one half of year two and so on in succeeding years. In the evidence given before me the Plaintiff s calculations as to real rate of return were on the assumption that income would not be reinvested while the Defendant’s calculations were on the basis that it would and to some extent thus accounts for the difference of opinion expressed by their respective witnesses.
The evidence for the Plaintiff is that the real rate of return on a portfolio containing 70% equities and 30% gilts would be 2.9%. For the Defendant the evidence was that the real rate of return on a split portfolio would be 4% and perhaps somewhat higher. The Plaintiff’s calculations are on the basis that income would not be reinvested while the Defendants’ are on the basis that it would.
Having regard to the evidence and the view which I take of the course which a prudent investor would pursue and the obligation of a Plaintiff to act reasonably to mitigate his damages by acting as a prudent investor I accept the Plaintiff s evidence as to the real rate of return. The same however requires some adjustment to take into account the possibility of reinvesting income to some extent. Making this adjustment I find that the appropriate multiplier having regard to the Plaintiff s particular circumstances should be calculated upon the basis of a real rate of return of 3%.
The Plaintiff s work history is as follows. He commenced employment in 1978 as an apprentice mechanic and continued with that employer until 1983 following which he remained out of work for a year. He then obtained employment as a static guard with a security company for one year. In 1985 he resumed employment as a mechanic and continued in that employment until 1990 after which he was unemployed for some two years other than for some casual work. In 1992 he again obtained employment as a security guard for one year after which he returned to his trade and continued to work at his trade until the date of the accident. I had the opportunity of assessing the Plaintiff while he gave evidence and I accept that it is likely were it not for his accident that he would have continued to work until the age of 65. Having regard to the serious nature of his injuries and the difficulties which lie experiences in carrying out his work he is unlikely now to continue to that age and it is likely that he will cease work altogether in fifteen years time at age 55 approximately. The appropriate multiplier based on a real rate of return of 3% in respect of his loss of earnings at £175 per week to age 65 is £975. This gives a figure of £170,625. In addition he will lose £67 per week from age 55 to age 65: I have been given an agreed multiplier for this calculation on the basis of a real rate of return of 2’/z% at £354 per £1: it is necessary to reduce this to reflect a real rate of return of 3% and I propose to adopt a figure of £325 per £1 in respect of additional loss of earnings from age 55 to 65. This gives a figure of £21,775. Having regard to the Plaintiffs employment history pre accident it is appropriate to make some reduction under Reddy v Bates. Further I take the view that notwithstanding that he will be unfit for full time employment between the ages of 55 – 65 the Plaintiff has special skills as a diesel mechanic and is likely to engage in some intermittent or casual employment. I propose abating the total award for future loss of earnings of £192,400 by 10%. This results in a net award under this heading of £173,160.
The total award to the Plaintiff accordingly is as follows –
Pain and suffering to date 75,000.00
Pain and suffering into the future 75,000.00
Agreed. special damages other than loss of earnings 60,111.77
Loss of earnings to date 43,019.77
Future loss of earnings 173,160.00
Total: 426,291.54
This sum converts to euro at 1 euro = IR£0.787564 in the amount of E541,278.60.
The Plaintiff having contributed to the accident by his own negligence to the extent of 25% this sum must be reduced in that proportion. I award the Plaintiff the sum of €405,958.95.
Muckley v. West Lodge Hotel Ltd t/a Westlodge Hotel & Anor
[2005] IEHC 15 (25 January 2005)
Judgment of Mr Justice Michael Peart delivered on the 25th day of January 2005:
On the 21st June 2000 the plaintiff was attending function at the Westlodge Hotel. It was organised in relation to the commemoration of those who tragically lost their lives in the Air India plane disaster.
The function included a performance by some Indian dancers in the function room of the hotel. It is the evidence that those taking part in the dance part of the evening had earlier in the day requested that some form of screening or partition be provided for the dancers so that when they came up a stairs to the side of the dance area and before they would come out into that area, they would be screened off from the view of the audience.
It appears that the hotel itself did not have anything suitable for that purpose, and the County Council, who were assisting in the organising and promotion of this event, arranged to get some suitable materials from their stock. Mr Murphy of the County Council arranged for two polling booths of the type with which all who vote at election time will be familiar. They are timber framed items about six feet high and about three feet wide, and have an inbuilt shelf over which there is a sheet of timber to enable a vote to be cast in privacy. At any rate two of these booths were placed in the appropriate position side by side to create a screen about six feet tall and just over six feet in width. For additional screening purposes the hotel provided some fabric which was draped over each screen – a separate piece for each screen. I should say that the witnesses for the plaintiff and the plaintiff herself do not agree that polling booths are what provided the screening. These witnesses say that the screens were flat screens and not the sort of timber structures which have been described and which had fabric draped over them. However I shall return to that later.
The dance performance appears to have been a great success. After it was over a large number of the audience were standing around chatting as often happens, although the evidence is that many people were also exiting the function room at the other end.
However the plaintiff was among a group of people quite near the stage area and the area in front of the stage on which the dancers had performed. She states that she was standing talking to three people just in front of and with her back to the screens when, out of the blue, she says there was a loud noise and one of the screens fell forwards hitting her on her right shoulder and right flank area and knocked her to the ground, pinning her underneath. One of her shoes was knocked off her foot during all of this. She found it after she was helped up.
She states that she was helped up by three men, who picked up the screen which had fallen on top of her. She also states that the Manageress of the hotel, Ms. Eileen O’Shea (who also gave evidence) was standing eight or nine feet away, but that she did not come over to her. Neither did the plaintiff go over to Ms. O’Shea to tell her what had just happened. The plaintiff stated that a friend of hers, Mrs Vernon also came over to her after this had happened. Mrs Vernon has given evidence also.
I do not propose to detail all the evidence which I have heard. A note of the evidence has been taken which can be referred to if needs be at a later stage. But it will suffice to say that there are conflicts of evidence in this case both as to the precise nature of the screen used on this occasion by the County Council, and also the fact of the plaintiff being knocked to the ground in the manner she has described. I am not so concerned with the conflict of evidence as to the nature of the screens used. Whether they were flat screens of the flat panel variety described by the plaintiff and her witnesses, or whether they were polling booths as stated by Mr Murphy is neither here nor there really. Whatever type of screen was used ought to have been suitable for the purpose, and should not have fallen over and injured the plaintiff.
In relation to that particular conflict, I have heard expert evidence as to the construction of the polling booths and the way they are assembled and fold away when not in use. I am satisfied on the balance of probabilities and in the light of the Mr Murphy’s evidence and his demeanour generally, that what was used was the polling booths. His evidence is categoric in this regard. My own view is that in the act of falling the booth fell apart in some way so that when it was lifted off the plaintiff it appeared to be a flat object rather than an object with a shelf on one side. This is the only explanation that for the plaintiff, Mrs Vernon and Dr Pulle stating that the screen lifted off the plaintiff was flat. However, as I have said, the precise nature of the screen is not of critical importance in this case.
What is important is whether the incident happened at all as described by the plaintiff. The plaintiff has described exactly what happened and in some detail. Dr Pulle gave very credible evidence, as did Mrs Vernon. On the other hand, Ms Eileen O’Shea has also given evidence that she was near where the plaintiff was standing about 20 minutes after the performance ended. She said most of the people were still in the room at the time, standing and chatting while they got ready to return home. She says she was standing about six to eight feet from the screen in question, but had her back to the screen. She says that she heard a noise, immediately turned around and saw the screens fallen the ground. She saw a group of people with the plaintiff and she says she went over and asked was everybody alright and that she was told that everybody was fine and that there was no problem. She thinks that both screens had fallen, and stated that on seeing what had happened she was grateful and relieved that nobody had was near them when they fell. In fact she stated that the plaintiff herself stated to her that everyone was fine. She knows the plaintiff very well and for twenty years or so and was certain that she had said this to her. She was asked whether she had seen the plaintiff lying on the floor under the screens on top of her, when she had turned around after hearing the noise. She stated that she had not seen her. She said that if she had seen her on the floor in that way she would have been concerned to deal with the matter as manageress of the hotel, and assist her and call for medical help if that was required. As far as she is concerned, there was nobody near the screens immediately after she turned around after she heard the noise.
When she was cross-examined she was asked who had actually picked up the screens, and she responded that she could not say exactly. She also said that the screens were still on the ground when she went over ands asked if everyone was okay. The plaintiff, of course, says that Ms. O’Shea did not come over as she has described in her evidence. She said there was in fact no need to pick up the screen because there was nobody near it. But she was asked whether she would have left the screen lying on the ground, and she stated that she had them picked up by people from the County Council who were near her. Dr Pulle had stated in his evidence that in fact he picked up the screen, but Ms O’Shea said that there were a lot of people around at the time and she could not recall Dr Pulle doing so.
Ms O’Shea stated that when she first turned around, the plaintiff was standing up, and the screen was on the floor. It was put to her that Dr Pulle had given evidence of picking the screen off the plaintiff before the plaintiff was able to get to her feet again. But she stated that she could only say what she saw on the night. She also did not recollect any amplification equipment being knocked from the stage, whereas Dr Pulle had stated that the fall of the equipment created more noise that the falling of the screens themselves. Ms. O’Shea was pressed as to whether she was saying positively that the sound equipment was not knocked to the ground or whether she was saying she did not recollect it being knocked. She stated that she “didn’t notice it knocked” and she also said she did not remember it being knocked.
Dr Pulle to whom I have referred is a mathematician by occupation and lives in Scotland and he was in attendance at this function. The function was apparently part of a fundraising effort for a scholarship being arranged as part of the commemoration of the Air India disaster. He was assisting in the organisation of the fundraising. He said that after this concert he was standing talking to the plaintiff and she was speaking to two other people. He stated that there was some commotion going on behind that group and he then saw the screen falling on the plaintiff, and that he and two other people helped her up. He was specifically asked if he had seen the screen fall on her and he said he did. Now I have to refer to the fact that his evidence about the number and nature of the screen cannot be correct if, as I do, I accept the evidence of Mr Murphy that there were only two polling booths used as the screen. Dr Pulle said there were three or four screens in line, which were each about one and a quarter inches thick. One might expect a mathematician to be that precise perhaps! But I have absolutely no reason to believe that Mr Murphy is not being truthful about personally bringing the polling booths to the hotel for use. I think in the confusion of the incident Mr Pulle’s recollection and that of the plaintiff and Mrs Vernon is incorrect. But I have no reason to think that Dr Pulle, who impressed me greatly as a genuine and truthful witness, is either mistaken or untruthful when he says that he picked the plaintiff up after the screen fell on top of her.
That is not to say that Ms O’Shea is being deliberately untruthful, but her evidence was not as clear about seeing the incident happen. She had her back to the incident and some small amount of time must have passed before she saw what was going on, otherwise she would have to have seen at least the act of picking the plaintiff up so well described by Dr Pulle.
I will not set out all the evidence which I heard. But I am satisfied on the balance of probabilities that a screen of some description, probably of the polling booth variety, fell upon the plaintiff having being disturbed by some activity behind it – possibly the falling of the sound equipment, and that it was not stable enough to withstand whatever force came against it. I have heard evidence as to the weight of the screen and how little force was required to knock it over. I have also heard evidence that the weight of the screen falling on the plaintiff should not have been sufficient to cause her the injuries which she suffered. However, the fact of the matter is, as far as I am concerned, that the screen fell on the plaintiff, and that she fell to the ground as a result, and that while she was able to be helped to her feet and continue to the conclusion of the evening, she suffered symptoms following upon this incident which became apparent some three to four days later. She stated that at first after it happened she was a bit sore, and was bruised. She self-medicated with some Arneka oil and Panadol. The pain was in her right shoulder and right side of her back in the mid to low back region. By the 1st July 2000 she said she was in dreadful pain, with muscle spasm, which she described as being like getting a cramp when swimming. She went to Casualty and was given painkiller and an injection. The following day she was given a further injection and x-rays were taken. She was generally sore and stiff. She found the injections gave her only short-term relief. By the 10th July 2000 she was being advised to go for physiotherapy and was prescribed Brufin and distalgesic medication. She found the medication made her unwell so she came off that around the end of August 2000. She had a very bad day of pain at the end of August 2000 apparently and visited her GP’s practice.
During the autumn months of 2000 the plaintiff tried a number of different avenues of treatment, such as heat treatment, therapeutic massage, and even a faith healer, but with no great success. She continued with physiotherapy. By the end of January 2001 she was sleeping badly. By February 2001 she saw Surgeon Cashman who prescribed some medication and injected her again. She was having trouble with muscle-locking and aches. If she was lying down or sitting for long periods she would have back pain. This was intermittent at this time. She was also continuing with massage.
In March 2001 she tried to ease back to work. She was offered some training work with FAS but found the driving involved very troublesome and had to give it up. She did some other work relating to a training manual. She found she had to dictate to another person because she could not sit and type it herself.
In April 2001 she had acupuncture treatment with Ann Miller, but found it too painful to persevere with. She had further injections from Mr Cashman, as well as continuing with her physiotherapy. In July 2001 an MRI was carried out on her shoulder. This revealed evidence of Rotator Cuff Impingement and Bursitis. Dr Nial O’Donovan, a Consultant Radiologist stated that there were degenerative changes in the shoulder but that the accident in June 2000 had made it more prone to pain and discomfort. He stated that it may settle down depending on the level of treatment. He stated that without the trauma there would have been progression, but that it would have been slower, and not have become evident for some years.
There is no need to set out in detail the modest progress she made during the years between that and now. She has stated that by the end of 2004 she was really starting to feel a bit better. She now knows what she can and cannot do and lives her life accordingly. She continues with physiotherapy. She thinks that her shoulder is much better but still she is unable to perform strenuous tasks at home, such as hovering. She has a housekeeper once a week, and sometimes twice. She still gets back aches, and still has difficulties driving for long periods. This difficulty has given rise to difficulties pursuing some of her hobbies, such as playing bridge or going to classical music concerts, because of the length of time she has to spend seated. She misses these activities.
Apart for the question of general damages, the plaintiff’s claim is made up principally of a claim for loss of earnings from a business which she had just set up in 1999, and she was in only her second year of trading. She says that as a result of this accident she was unable to continue the business and that it ceased because she was unable to service her clients to the level she would wish. This was a Tourism Consultancy Business, which, simply put, meant that owners of certain types of holiday accommodation would have their business promoted and advertised through the plaintiff’s firm, which also had a centralised booking facility. There was also a website attached to the business to which the clients had access. The plaintiff would be paid a fee annually for the use of these promotional and booking services and she would also receive a commission on all bookings made. This business required the plaintiff to attend trade fairs at which her clients’ interests would be promoted and this necessitated a good deal of travel up and down the country to various tourism trade fairs and exhibitions. The plaintiff states that while the footwork for the business for 2000 was done in 1999, she was unable in the second half of 2000 to travel to the trade shows because of her injuries and she was unable to give her customers the level of service required and so she returned a number of subscriptions she had taken, and ceased the business. She gave quite an amount of evidence about how this business operated and my brief summary is just that.
An accountant, Mr David Hyland gave evidence of how he has assessed the losses which the plaintiff has suffered as a result of closing down this business. I do not propose to set out that accountancy evidence in full detail. In her first year of business she had a nett profit of about £2000. Her sales were €37,623, but being her first year of trading she had expenses involved ion setting up, and she states that this accounts for the fact that her profit was so low in that first year. In the second year she lost about £20,000 of the business of the first year because some of her clients left the tourism business in favour of providing accommodation for asylum seekers and they did not require her services. That made a large hole in her business for 2000 but if the injury had not happened she maintains that she would have been able to increase her efforts and go out and get substitute business to make up the deficit caused by the loss of those clients. She had commenced trying to make up this loss by the time the accident happened. As it happened she incurred a loss of some £23,000 in 2000, and furthermore was unable to go to shows and trade fairs in order to promote her business for 2001 and she refunded some clients their subscriptions for 2001 as she could not provide the service to them.
I have looked at Mr Hyland’s figures and taking the lower of the bases he has used for estimated losses for the years 2000/01, 2001 and 2002 he arrives at a post tax figure of approximately €15000 per year. That is a rough summary from his report. In cross-examination, it was suggested that following the events of September 11th 2001 there was a serious downturn in tourism business from the USA and that her income would have dropped in any event, but Mr Hyland was of the view that 9/11 was the very reason why her business would have increased since in a time of tourism difficulties, accommodation owners would be likely to redouble their efforts to bring in business and that this would have lead to more such owners availing of the plaintiff’s services and paying her a subscription for her services.
Trying to guess what might have happened to a business of this kind inevitably involves the Court in an element of guesswork, influenced by the expert evidence adduced as well as taking into account the likelihood of the plaintiff succeeding in her ambitions given her particular skills, energy, motivation and business acumen and track record. Having heard this plaintiff in the witness box, I have been left with the impression of a very determined and talented lady who is capable of devoting a great deal of time energy and not a small amount of talent and skill to whatever she turns her hand to. I have a hunch that she would have carried on successfully at least for five years. She would accept I am sure that she was not a young woman at the time of this accident. That notwithstanding I am sure she would have been fully active and energetic for at least another five years and it is probable that she would have made up the ground lost by the removal of some lodges from her books, and that she would have probably improved her profit as well as wiping out the deficit which arose unexpectedly in 2000. Nevertheless, the Court must be careful not to be too optimistic in its forecast into the future. Running one’s own business is a risky business. Things can happen over which there is no control, as she had already found out in 2000.
But doing the best I can, and taking the case in the round, I believe it is reasonable to assess a loss to the plaintiff of €6500 for 2000, and €13000 for each of 2001, 2002, 2003 and 2004. That sum comes to €58500. For this I have taken a figure which is less that the lowest figures put forward by the plaintiff’s accountant.
I do not propose running that figure forward into subsequent years. I have great faith in this plaintiff’s abilities to pursue gainful employment. She has struck me as a most capable, determined and highly motivated person who can succeed at anything she devotes her talents and energy to. I have little doubt but that there will be employment she can get in the immediate future even if she does not try and set up in business again on her own account. She has valuable skills and I am sure it is reasonable to expect that she will use them as she has done in the past now that she is feeling substantially recovered from this unfortunate accident.
In addition to this item, there are agreed special damages in the sum of €5500.
As far as general damages are concerned, I believe that a sum of €35000 is reasonable for past pain and suffering and that a further sum of €10,000 is appropriate for pain and suffering in the future.
In these circumstances, there will be judgment in favour of the plaintiff against the second named defendant in the sum of €109,000.
Approved: Peart J.
Hennessy v. Fitzgerald
[2000] IEHC 92 (13th December, 2000)
JUDGMENT of Mr Justice McCracken delivered the 13th day of December, 2000
1. On 29th August, 1997, the Plaintiff was involved in a road traffic accident in which he incurred a serious injury to his right arm involving both the dislocation of his right radius at the elbow and the comminuted fracture of the ulna. He also suffered a fracture of his right little finger and an injury to his left thumb and a soft tissue injury to his lumbar region. In addition he had a head injury with lacerations on his forehead. Liability is not in issue and accordingly this case comes before me solely as an assessment of damages.
2. The Plaintiff is a qualified fitter and worked for some time in England and on the Continent. In 1992 he returned to Ireland and took over a workshop where his father had carried on a business some years earlier. He started his own business, buying old lorries, dismantling them and selling parts such as the engine and axles. He then used the bodies of the lorries as the raw material for manufacturing skips of various types by converting the bodies into skips. I am quite satisfied that at the time of the accident he had been intending to expand the business, and he had purchased some four acres of land and some machinery and equipment to enable him to do so.
3. The Plaintiff was undoubtedly a skilled and hardworking fitter, and his involvement in the business was very much hands on and on the physical side. He had little in the way of managerial skills and such books as were kept in relation to the business were kept by his wife. I am quite satisfied that as a result of the injuries suffered by him, he is physically unable to carry out his pre-accident work. He is capable of light physical work, but cannot carry out many of the functions which would be normally required of a qualified fitter.
4. Since the accident the Plaintiff has tried to carry on the business in more of a managerial capacity. Before the accident he had on occasion employed qualified fitters and for some time after the accident he brought in subcontractors to carry out the work. More recently, however, he has changed the nature of the business somewhat and is only employing apprentice fitters. The business now consists largely of manufacturing skips from bought in materials, which obviously involves considerably higher costs of material.
5. The Plaintiff is seeking both general damages which I will deal with later, and damages for loss of earnings. This latter claim is primarily based on forecasts of the profits which the Plaintiff would have made in his business had the injury not occurred. It is then said that if the business collapsed, the Plaintiff would in any event have been able to obtain a job paying between £500 and £700 a week gross as a skilled fitter. On the evidence before me I am satisfied that, by reason of his injuries, the Plaintiff would not obtain employment as a fitter, but on the other hand that he would obtain a job in one of the several occupations suggested by Mr Desmond White with an income of between £180 and £280 a week.
6. I have been furnished with evidence from accountants on behalf of both parties in regard to the Plaintiff’s business. Unfortunately, I found the evidence of the Plaintiff and of his wife to be very vague in this regard. There have been no audited accounts of the business, and in my view the figures which have been produced could not be treated as reliable. Accordingly, the accountant’s evidence is only of slight assistance. However, I am quite satisfied with regard to two matters, which give rise to some considerable difficulty.
7. Firstly, the one clear picture which came from the Plaintiff’s evidence is that, rightly or wrongly he is determined to continue the business if he can possibly do so. Secondly, the accountants all agree, and indeed it seems clear from such accounts that exist, that the business as carried on at the moment by the Plaintiff is not viable. We have, therefore, a Plaintiff who is determined to carry on a business which is losing money at a considerable rate and has no real prospect of being turned around. Causing even more difficulty is the question of whether, even if the accident had not occurred, the business would have prospered in the way put forward by the Plaintiff. On the Plaintiff’s own figures, which admittedly are very questionable, the net profit made by the business up to the time of the accident was very small, and there is no doubt the Plaintiff could have made considerably more money by working for somebody else. The Plaintiff’s accountant has done his best in producing projections, but as I take the view that these projections are based on very doubtful actual figures, I would not be inclined to rely on them. My own view is that the probability is that the Plaintiff would never have made as great an income from his business as he would have made had he sought employment.
8. The first point I have to consider is the Plaintiff’s claim for loss of income to date. He is claiming that the Defendant must compensate him, not only for the estimated earnings or profit which he would have made, but also for the losses which in fact were made by the business. These losses amount to over £35,000.00 since the accident. The Plaintiff chose to try to continue the business after the accident. That was his choice, and clearly it was the wrong choice. However, I do not think that the consequences of that wrong choice can be visited on the Defendant. It is clear from the evidence that the Plaintiff has for some considerable time been told that this business could not succeed, and has ignored all advice given to him, and apparently still intends to continue to ignore it. He is, of course, entitled to do so, but he is not entitled to a free run at the expense of the Defendant. Accordingly, in relation to past loss of earnings, and on the basis that he ought to have shut down the business, I am prepared to award him the difference between earnings which he would have made as a fitter and earnings which he was capable of making had he sought employment when he was fit to return to work. Indeed, I think this is being generous to the Plaintiff, because it is arguable that he should bear the entire loss which arose from him having decided to carry on the business. I do not have clear evidence of what these amounts would have been in 1997 and 1998, and I can only estimate them. I purpose to award him the sum of £300.00 a week in relation to the first year after the accident, when he was probably capable of very little work, and £200.00 a week in relation to the remainder of the time to date. In round figures I calculate this at £41,000.00.
9. In relation to future loss of earnings, I think that if the accident had not occurred, the Plaintiff clearly would have continued his business, probably for some years. I do not think his income would have been as great as if he had been in employment, and I suspect that at the end of the day he probably would have had to give it up. As I do not place any great reliance on the figures, I am in the position that I can only try to make a educated guess as to the Plaintiff’s loss. If he had not had the accident he would be able to find employment now at a wage of £500.00 to £600.00 a week gross. I think I must discount that figure because the Plaintiff clearly would not have been in such employment, but would have been running his own business and having, in my view a lower income. For the purpose of this calculation I would purpose to assess his income were it not for the accident at £375.00 per week nett, which would be about £450.00 per week gross, and to assess his present earning capacity at £225.00 nett leaving a nett loss of £150.00 per week. Using a multiplier of 928 as per the actuarys evidence, this would give a capital value of £139,200.00. Allowing a 10% reduction under Reddy -v- Bates for contingencies, which is very generous to the Plaintiff, I would award him £125,280.00 for future loss of earnings.
10. There are further special damages agreed at £24,040.00 and there is also a claim that the Plaintiff should be reimbursed bank interest amounting to £10,000.00. This bank interest arises partly because of the Plaintiff’s insistence on carrying on the business, which as I said ought not to be visited on the Defendant, but it also arises partly because he has had to borrow money to pay medical expenses and keep his family going to date. I would propose to allow him half this amount namely, £5,000.00.
11. Finally, in relation to general damages, the Plaintiff has suffered a serious arm injury and has ongoing pain in his arm and lower back. This will undoubtedly continue into the future, and in the case of his arm, almost certainly will to some degree be permanent. In addition, and perhaps more seriously, the Plaintiff has suffered serious depression since the accident, which I am satisfied is quite genuine, and is as a result of his injuries. Indeed, his almost fixation with wanting to continue the business against all the odds is almost certainly an attempt to keep the depression at bay to some extent. He has become very irritable and prone to bouts of uncontrolled temper and has poor powers of concentration. He is being treated on anti depressant and anti anxiety medication and the evidence of his psychiatrist is quite clear to the effect that if he cannot continue the business he will have protracted problems and may deteriorate. Sadly, I feel this may well happen. On this basis, I would propose to award him £40,000.00 general damage to date and £65,000.00 general damages into the future.
12. Accordingly there will be a decree for a total of £300,320.00.
Hennessy v. Fitzgerald
[2000] IEHC 92 (13th December, 2000)
THE HIGH COURT
1999 No. 3638P
JUDGMENT of Mr Justice McCracken delivered the 13th day of December, 2000
1. On 29th August, 1997, the Plaintiff was involved in a road traffic accident in which he incurred a serious injury to his right arm involving both the dislocation of his right radius at the elbow and the comminuted fracture of the ulna. He also suffered a fracture of his right little finger and an injury to his left thumb and a soft tissue injury to his lumbar region. In addition he had a head injury with lacerations on his forehead. Liability is not in issue and accordingly this case comes before me solely as an assessment of damages.
2. The Plaintiff is a qualified fitter and worked for some time in England and on the Continent. In 1992 he returned to Ireland and took over a workshop where his father had carried on a business some years earlier. He started his own business, buying old lorries, dismantling them and selling parts such as the engine and axles. He then used the bodies of the lorries as the raw material for manufacturing skips of various types by converting the bodies into skips. I am quite satisfied that at the time of the accident he had been intending to expand the business, and he had purchased some four acres of land and some machinery and equipment to enable him to do so.
3. The Plaintiff was undoubtedly a skilled and hardworking fitter, and his involvement in the business was very much hands on and on the physical side. He had little in the way of managerial skills and such books as were kept in relation to the business were kept by his wife. I am quite satisfied that as a result of the injuries suffered by him, he is physically unable to carry out his pre-accident work. He is capable of light physical work, but cannot carry out many of the functions which would be normally required of a qualified fitter.
4. Since the accident the Plaintiff has tried to carry on the business in more of a managerial capacity. Before the accident he had on occasion employed qualified fitters and for some time after the accident he brought in subcontractors to carry out the work. More recently, however, he has changed the nature of the business somewhat and is only employing apprentice fitters. The business now consists largely of manufacturing skips from bought in materials, which obviously involves considerably higher costs of material.
5. The Plaintiff is seeking both general damages which I will deal with later, and damages for loss of earnings. This latter claim is primarily based on forecasts of the profits which the Plaintiff would have made in his business had the injury not occurred. It is then said that if the business collapsed, the Plaintiff would in any event have been able to obtain a job paying between £500 and £700 a week gross as a skilled fitter. On the evidence before me I am satisfied that, by reason of his injuries, the Plaintiff would not obtain employment as a fitter, but on the other hand that he would obtain a job in one of the several occupations suggested by Mr Desmond White with an income of between £180 and £280 a week.
6. I have been furnished with evidence from accountants on behalf of both parties in regard to the Plaintiff’s business. Unfortunately, I found the evidence of the Plaintiff and of his wife to be very vague in this regard. There have been no audited accounts of the business, and in my view the figures which have been produced could not be treated as reliable. Accordingly, the accountant’s evidence is only of slight assistance. However, I am quite satisfied with regard to two matters, which give rise to some considerable difficulty.
7. Firstly, the one clear picture which came from the Plaintiff’s evidence is that, rightly or wrongly he is determined to continue the business if he can possibly do so. Secondly, the accountants all agree, and indeed it seems clear from such accounts that exist, that the business as carried on at the moment by the Plaintiff is not viable. We have, therefore, a Plaintiff who is determined to carry on a business which is losing money at a considerable rate and has no real prospect of being turned around. Causing even more difficulty is the question of whether, even if the accident had not occurred, the business would have prospered in the way put forward by the Plaintiff. On the Plaintiff’s own figures, which admittedly are very questionable, the net profit made by the business up to the time of the accident was very small, and there is no doubt the Plaintiff could have made considerably more money by working for somebody else. The Plaintiff’s accountant has done his best in producing projections, but as I take the view that these projections are based on very doubtful actual figures, I would not be inclined to rely on them. My own view is that the probability is that the Plaintiff would never have made as great an income from his business as he would have made had he sought employment.
8. The first point I have to consider is the Plaintiff’s claim for loss of income to date. He is claiming that the Defendant must compensate him, not only for the estimated earnings or profit which he would have made, but also for the losses which in fact were made by the business. These losses amount to over £35,000.00 since the accident. The Plaintiff chose to try to continue the business after the accident. That was his choice, and clearly it was the wrong choice. However, I do not think that the consequences of that wrong choice can be visited on the Defendant. It is clear from the evidence that the Plaintiff has for some considerable time been told that this business could not succeed, and has ignored all advice given to him, and apparently still intends to continue to ignore it. He is, of course, entitled to do so, but he is not entitled to a free run at the expense of the Defendant. Accordingly, in relation to past loss of earnings, and on the basis that he ought to have shut down the business, I am prepared to award him the difference between earnings which he would have made as a fitter and earnings which he was capable of making had he sought employment when he was fit to return to work. Indeed, I think this is being generous to the Plaintiff, because it is arguable that he should bear the entire loss which arose from him having decided to carry on the business. I do not have clear evidence of what these amounts would have been in 1997 and 1998, and I can only estimate them. I purpose to award him the sum of £300.00 a week in relation to the first year after the accident, when he was probably capable of very little work, and £200.00 a week in relation to the remainder of the time to date. In round figures I calculate this at £41,000.00.
9. In relation to future loss of earnings, I think that if the accident had not occurred, the Plaintiff clearly would have continued his business, probably for some years. I do not think his income would have been as great as if he had been in employment, and I suspect that at the end of the day he probably would have had to give it up. As I do not place any great reliance on the figures, I am in the position that I can only try to make a educated guess as to the Plaintiff’s loss. If he had not had the accident he would be able to find employment now at a wage of £500.00 to £600.00 a week gross. I think I must discount that figure because the Plaintiff clearly would not have been in such employment, but would have been running his own business and having, in my view a lower income. For the purpose of this calculation I would purpose to assess his income were it not for the accident at £375.00 per week nett, which would be about £450.00 per week gross, and to assess his present earning capacity at £225.00 nett leaving a nett loss of £150.00 per week. Using a multiplier of 928 as per the actuarys evidence, this would give a capital value of £139,200.00. Allowing a 10% reduction under Reddy -v- Bates for contingencies, which is very generous to the Plaintiff, I would award him £125,280.00 for future loss of earnings.
10. There are further special damages agreed at £24,040.00 and there is also a claim that the Plaintiff should be reimbursed bank interest amounting to £10,000.00. This bank interest arises partly because of the Plaintiff’s insistence on carrying on the business, which as I said ought not to be visited on the Defendant, but it also arises partly because he has had to borrow money to pay medical expenses and keep his family going to date. I would propose to allow him half this amount namely, £5,000.00.
11. Finally, in relation to general damages, the Plaintiff has suffered a serious arm injury and has ongoing pain in his arm and lower back. This will undoubtedly continue into the future, and in the case of his arm, almost certainly will to some degree be permanent. In addition, and perhaps more seriously, the Plaintiff has suffered serious depression since the accident, which I am satisfied is quite genuine, and is as a result of his injuries. Indeed, his almost fixation with wanting to continue the business against all the odds is almost certainly an attempt to keep the depression at bay to some extent. He has become very irritable and prone to bouts of uncontrolled temper and has poor powers of concentration. He is being treated on anti depressant and anti anxiety medication and the evidence of his psychiatrist is quite clear to the effect that if he cannot continue the business he will have protracted problems and may deteriorate. Sadly, I feel this may well happen. On this basis, I would propose to award him £40,000.00 general damage to date and £65,000.00 general damages into the future.
12. Accordingly there will be a decree for a total of £300,320.00.
Kelly v Hackett
High Court, July 5, 2005,
Kelly v. Hackett [2005] IEHC 229 (5 July 2005)
JUDGMENT of Mr. Justice Diarmuid B. O’Donovan delivered on the 5th day of July, 2005.
The plaintiff in this case, Sandra Kelly, is a 37 year old married lady with two children, respectively aged 14 years and 4 years. She resides with her husband, her children and her parents at Ayrfield Road, Coolock in the County Dublin.
Sandra Kelly left school at 15 years of age with no examinations to her credit. However, from the time that she left school, she was in full time employment; in a variety of jobs, until the month of February, 2001, when, while she was on maternity leave, she was made redundant by her then employers, Messrs. Motorolo Limited. However, in the month of March, 2001, she applied for employment as a catering assistant at Beaumont Hospital and, following interview, was offered employment commencing on 13th April, 2001. In that regard, I had evidence from Ms. Kay Fleming, the catering officer at Beaumont Hospital, confirming the fact that Mrs. Kelly had been offered such employment and that it was to commence on 13th April, 2001 and indicating that she would have commenced employment on a salary of €17,240 gross per annum and, were she still in that employment, that her current salary would be €23,212 gross per annum. In that regard, Ms. Fleming, whose evidence I accepted without reservation, gave me to understand that she could think of no good reason why, were it not for the events which gave rise to this claim, Mrs. Kelly would not still be employed by Beaumont Hospital.
Sandra Kelly comes to court seeking damages for injuries which she suffered as a result of a traffic accident in which she was involved through no fault of her own on the 6th day of April, 2001; an accident which occurred at Luke Kelly bridge in the city of Dublin. On that occasion, Mrs. Kelly was a back seat passenger in a car driven by her husband. Also in the car was her four month old baby boy, Roy, who was strapped in a baby seat in the front of the car and her 10 year old daughter, Gemma, who was sitting in the back beside her. Mrs. Kelly was going into town to buy a new dress in anticipation of starting her new job in Beaumont Hospital in the following week. At the commencement of the journey, she was wearing a seatbelt. However, when the child commenced to cry, she decided to feed him and she removed the seatbelt so that she might give the child a bottle whilst sitting on her lap. As the car in which she was travelling was negotiating a junction controlled by traffic lights, it was struck on the right front by the defendant’s taxi which entered the junction against a red light. Apparently, the impact between the two vehicles was a relatively severe one and, at the time, Mrs. Kelly was actually burping her baby and was able to protect it from injury. Needless to say, liability for the said occurrence was not contested by the defendant but it was alleged by the defence that Mrs. Kelly was guilty of negligence contributing to her injuries by reason of her failure to wear a seat belt. Apart from the fact that I heard no evidence whatsoever to suggest that the injuries suffered by Mrs. Kelly would have been any less severe had she been wearing a seatbelt, given that the front seat of the car in which she was travelling was pushed back against her legs, I do not think that she would have been any better off had she been wearing a seatbelt. Accordingly, I am not persuaded that she was guilty of contributory negligence.
Immediately after the impact between the two vehicles, Mrs. Kelly was conscious of both her husband and her two children screaming and she told me and I accept that she herself was shocked and very frightened. She said that she could not move and was conscious of pain in both of her legs which were trapped by the front seat. An ambulance was sent for and, apparently, it took in excess of an hour to cut Mrs. Kelly out of the car in which she was travelling and, in that regard, while she was very upset, Mrs. Kelly said that the ambulance men were very kind to her. Both she and her husband were taken to the Mater Hospital in separate ambulances and the two children were taken to Temple Street Children’s Hospital in another ambulance. Apart from the pain in her legs and the shock which she was experiencing, Mrs. Kelly told me that she was very concerned about the welfare of her husband and of her two children and I have no doubt but that that was so. Fortunately, neither her husband nor her two children were badly injured and they were all discharged from hospital within a relatively short period of time.
Insofar as Mrs. Kelly, herself was concerned, when she was brought to the Mater Hospital, she was subjected to x-ray examination following which she was told that she had sustained no bony injury but that both of her legs were very badly bruised; so much so that she could not walk. However, it was not considered necessary to detain her in hospital and, while she was given crutches to help her to mobilise, she found them impossible to use and, in fact, was wheeled out of the hospital in a wheelchair. However, when she got home, she told me that, because of her inability to walk on her legs, she had, as she put it, to “bum around the house” which she did for the next four weeks. However, the bruising of her legs gradually subsided although it was some months before it abated altogether and, for some weeks after her accident, she experienced pain in her legs which necessitated pain killing medication from time to time. However, she suffered no long term discomfort or disability arising from the injury which she had suffered to her legs. On the other hand, a huge problem manifested itself about four or five weeks after her accident on the first occasion on which she travelled in a car. On that occasion, when she was going into town she experienced what appears to have been a panic attack manifested by;
(a) terrible fear,
(b) difficulty in breathing,
(c) a choking sensation,
(d) uncontrollable crying, and
(e) vomiting.
The attack was so bad that she could not continue her journey and had to return home. She told me and I accept that she could not understand what was happening to her and that she had never had a similar experience in her lifetime. As a result of this experience, she attended her General Practitioner, Dr. T.M. Coghlan, who advised her to continue taking Prozac tablets which, in fact, she was taking at the time to counter a condition of post-natal depression which she had suffered following the birth of her son some months earlier. However, the Prozac did not help to counter the fear which she continued to experience every time that she tried to travel in a car. In fact, it was not even necessary that she be in a car before she experienced a fearful attack similar to that which she had experienced on the first occasion on which she had got into a car after her accident. In the presence of heavy traffic she was fearful, even the sound of the horn of a car terrified her. Accordingly, although, prior to her accident, she enjoyed walking, she was no longer able to enjoy a walk in the presence of traffic. On account of these problems, Mrs. Kelly continued to attend Dr. Coghlan on a regular basis. However, as the Prozac which he was prescribing did not help to alleviate Mrs. Kelly’s problems, Dr. Coghlan referred her to Dr. Robert Cantrell, a consultant psychiatrist, who has furnished reports on her and who gave evidence before me to which I will refer in due course. Dr. Cantrell prescribed different medication for Mrs. Kelly and advised counselling to which end he put her in touch with a man, who she called Pat, at a health centre. For many months following, Mrs. Kelly attended counselling sessions at that health centre on a weekly basis for sessions lasting approximately an hour. She told me that she thought that those counselling sessions helped her and, in particular, helped her to relax. She told me that, while she travelled to the health centre by car; a journey lasting five to ten minutes, those journeys were always a fearful experience for her and, at the end of the day, while, as I have indicated, the counselling sessions did help her to relax somewhat, she continued to experience great fear on any occasion on which she travelled in a car. She said the situation was not too bad while driving through a housing estate but that she became very panicky while driving through the city, or in heavy traffic. She told me that, on one occasion, she travelled on a bus but that she became so upset that she had to get off the bus after one stop. Indeed, she gave me to believe that the fear which she experienced on the bus was worse than that which she had experienced in a car. At the same time as she was attending counselling sessions, Mrs. Kelly was taking anti-depressant medication, medication to relax her and sleeping tablets because she was restless at night. All of that medication was prescribed by Dr. Cantrell and, indeed, she still takes that medication to the present day and, as I interpreted Dr. Cantrell’s evidence, the probabilities are that she will continue to do so for the foreseeable future. In that regard, Mrs. Kelly has attended Dr. Cantrell every six weeks since November, 2001 and, again, as I interpreted Dr. Cantrell’s evidence, the probabilities are that she will continue to have to attend him on a regular basis for the foreseeable future.
Although she told me that she had learned how to drive, Mrs. Kelly said that, in fact, she has never driven since her accident and although she keeps trying to accommodate to travel by car, she has been unable to do so. In that regard, she instanced an occasion last Christmas when she was driven to a social function in Ashbourne and became so ill that she could not move her legs and had agonising pains in her arms so that she had to come home. Indeed, she told me that, since the incident which gave rise to this claim, her social life has been totally disrupted. She agreed that she can go to local shops but that she gets so panicky if she goes into town that her mother now has to do any shopping that she wants done in town. In that regard, Mrs. Kelly told me that, only last week, she was required to attend an occupational therapist in connection with her case. She said that she went by car and that it was “a horrible experience”; that she vomited and experienced severe pain in her arms. Indeed, she told me that, when she was driven to court for her case she was ill. Essentially, therefore, she is unable to travel by car or bus with any comfort and, accordingly, is unable to go to work.
Mrs. Kelly told me that, before her accident, she led a very full social life with her colleagues in Motorolo and with her family and that she was accustomed to going on annual holidays; both in Ireland and abroad. However, since her accident, she stays at home most of the time and even finds it difficult to go out with her daughter, Gemma. Indeed, since her accident, she has developed a fear for Gemma’s safety when she is away from home with the result that she very often prevents Gemma from going out and there is really no good reason for doing so and, when Gemma is away from the home, she finds herself timing her absences. Moreover, while, before her accident, Mrs. Kelly used to attend parent/teacher meetings, she has only attended one such meeting since the accident. Mrs. Kelly agreed that she did go on some family outings but that, if she did, she is always anxious when she is away from home and the prospect of going out always worries her.
Mrs. Kelly told me that, following Gemma’s birth, she suffered from post-natal depression which necessitated her attending Dr. Coghlan, who prescribed appropriate medication which she took for a number of weeks. However, that depression did not prevent her from working. Similarly, after her son, Roy, was born, she also suffered from post-natal depression for which Dr. Coghlan prescribed Prozac which she was actually taking at the time of her accident.
Under cross-examination, Mrs. Kelly said that the symptoms of post-natal depression which she experienced following the birth of her two children were that she was weepy and tired. However, that depression did not create any problems for her when travelling in a car, or in a bus. She reiterated, however, that, since her accident, she cannot travel in a car or a bus with any ease and is fearful of the noise of traffic. When asked about the counselling which she had at the health centre with the man named Pat, she agreed that some of that counselling took the form of group therapy at which she and others with psychological problems discussed their fears and she thought that those sessions helped her. She also agreed that she had been advised to confront the problem which she experienced when travelling in a car and she maintained that she had tried to do so without success although she agreed that she did not travel in cars very frequently. She agreed that she had come to court in a car but that, if she did, she was violently sick afterwards. Insofar as the counselling was concerned, she said that the man named Pat left the centre and was replaced by a woman and that she had not attended counselling within the last 18 months.
Under further cross-examination, Mrs. Kelly agreed that she had been very upset by her father’s death in the year 2003 and that, following it, she had had bereavement counselling. She also agreed that her father had been very ill for about a year before he died and that she was stressed on that account. Under further cross-examination, Mrs. Kelly accepted that she was also very upset by the death of her father-in-law and required bereavement counselling following that demise. However, as she pointed out, her father-in-law died some eight years ago. Mrs. Kelly also gave evidence that she has a brother who is seriously disabled and, as a result, is now institutionalised. She agreed, however, that, when her brother resided with her and her parents, she found living with him very stressful.
Under further cross-examination, Mrs. Kelly conceded that, currently, she might undertake two or three journeys a week by car but that, if she did, they would be short journeys; usually to local destinations. However, if she spends more than ten minutes on a journey, she becomes very fearful and ill. When it was suggested to her that, as time passed, her fears were not as bad as they had been, she totally rejected that suggestion and, indeed, said that she thought they were getting worse; so much so that, if she can avoid travelling in a car, she does so and she said that ten minutes in a car is like ten hours to her. She agreed that, when she visits Dr. Cantrell, she goes by car but that, if she does, she tries to ensure that she is not driven on main roads. When pressed as to what she says happens to her when she travels in a car, she says that she is stressed, that she roars and screams, experiences pain in her legs and that, after a journey in a car, she is drained. She said that, as a result of her inability to travel by bus or car, she is prevented from going to work and cannot live a normal life. When it was suggested to her that her fears were irrational, she agreed that that might be so but that, unfortunately, she was unable to control them. She said that, while she did not know what was going to happen in the future, she did not believe that she would ever recover although she accepted that Dr. Cantrell was hopeful that she would. As far as she was concerned, however, she is afraid of everything on the road and does not go anywhere on her own.
As I have already indicated, I had the benefit of reading several reports on Mrs. Kelly furnished by Dr. Robert Cantrell, the consultant psychiatrist whom she has been attending since the month of November, 2001 and, in addition, I had sworn testimony from Dr. Cantrell. In that regard, Dr. Cantrell assured me that, so far as he was concerned, Mrs. Kelly had been entirely consistent with regard to the complaints which she had made to him over the years and, in his view, she was a completely genuine person. That, indeed, was also my assessment of the lady as I watched her giving evidence before me. She impressed me as a totally reliable and honest historian of the events which she described in the course of her evidence and of the feelings which she has experienced following the traffic accident in which she was involved on 6th April, 2001. I was particularly impressed by the emotion which she manifested when challenged by counsel for the defence that her fears were irrational; her response being that, whether or not they were, she could not control them; much as she would love to be able to. I have no doubt but that the tears which she shed on that occasion were very genuine. Dr. Cantrell gave evidence that, when he first saw Mrs. Kelly, he diagnosed that she was suffering from incapacitating anxiety symptoms related to cars; symptoms which were precipitated by the accident in which she was involved on 6th April, 2001 and symptoms which were provoked by the presence of cars and the presence of heavy traffic. He said that, initially, he had embarked upon a regime of intensive relaxation treatment which included anti-depressant and anti-anxiety medication but that, while Mrs. Kelly’s mood improved, the anxiety symptoms were resistant to the treatment notwithstanding that he had increased the amount of medication which he had prescribed for her. In this regard, Dr. Cantrell expressed disappointment at the lack of improvement in Mrs. Kelly but he said that, in his experience, it was not all that unusual that persons suffering phobic and anxiety problems are resistant to treatment and, as I have already indicated, Dr. Cantrell said that he had no reservations whatsoever about the genuineness of the fears which Mrs. Kelly expressed. Moreover, he was satisfied that she was not employable outside of the home and that while he was hopeful that, with the passage of time, she would improve, he would not expect a significant improvement for another three to five years and it could well be that her problems would prove to be chronic. One way or the other, however, Dr. Cantrell was satisfied that Mrs. Kelly would have to continue to see him and would require ongoing treatment for the foreseeable future. When asked to put a label on Mrs. Kelly’s problems, Dr. Cantrell said that she was suffering from Post Traumatic Stress, from agoraphobia, from depression and from phobic panic. He said that, in his view, there was no relationship between her current problems and the depressive symptoms which she had experienced in the past and that, were it not for the accident which gave rise to this claim, she would be well able to cope with all the demands of normal living. While it may well be that her reaction to the accident in which she was involved was disproportionate, it is nevertheless a reality.
Under cross-examination, Dr. Cantrell indicated that the best label for Mrs. Kelly’s condition was Post Traumatic Stress and while, more often than not, persons suffering from that condition make a good recovery, that does not always happen and, in some instances, the condition can prove to be chronic. He said that, since Mrs. Kelly first came to him, her mood has improved but, otherwise, she is no better. He agreed that she should continue to try to confront her fears but he accepted that this will be difficult for her and that, one way or another; any gains from so doing will not be short term. He also agreed that it is not good for Mrs. Kelly to stay at home but that, outside of the home, she was, as he said “crippled by her symptomology”. He also agreed that physically and psychologically, there is no reason why Mrs. Kelly would not be able to work. However, her problem is getting to a place of work.
Nevertheless, he was hopeful that, with the passage of time, she would be able to overcome her problems to the extent that she would be able to return to work. At the same time, in response to a direct question in that behalf from me, he was not prepared to say that, as a matter of probability, that was going to happen.
Mrs. Brenda Keenan, a vocational rehabilitation consultant, gave evidence that she assessed the plaintiff’s employability in the light of what Mrs. Kelly, herself, had told her about her experiences since the incident which gave rise to this claim and in the light of the medical evidence of Dr. Cantrell and that it was her, Mrs. Keenan’s, opinion that she is currently unemployable outside of the home. Mrs. Keenan added that, in the event that Mrs. Kelly were to overcome her current problems to the extent that she was able to return to the workforce, the likelihood is that she would have to undergo a retraining programme before doing so. Under cross-examination, Mrs. Keenan agreed that Mrs. Kelly was suffering from no disability which would prevent her from working at home. Her problem was that she is unable to travel by public transport, or by car, so that she cannot get to or from a place of work.
Mr. John Logan, a consulting actuary, gave evidence that the amount of disability benefit which Mrs. Kelly had received to date together with the amount of disability benefit which she is expected to receive during the balance of a period of five years since the date of the incident which gave rise to this claim is €38,415. Moreover, in the light of the evidence of Ms. Kay Fleming, the catering officer from Beaumont Hospital, Mr. Logan calculated that, had she been able to take up employment in Beaumont Hospital on 13th April, 2001, as she expected to, Mrs. Kelly’s average net weekly earnings to date would be €347.15 and that, therefore, as a result of her inability to take up that employment, she has lost a total of €75,961 to date. In that regard, Mr. Logan gave evidence that Mrs. Kelly’s current net weekly salary would be €390. Mr. Logan also gave evidence that the capital value of the future loss of €1.00 per week for Mrs. Kelly to age 65 is €965 and that a similar loss for a period of five years from the present day would be €242 and that for a period of ten years from today would by €450.
No evidence was called on behalf of the defence and, in particular, no evidence was called to challenge or contradict the opinion evidence of Dr. Cantrell. In that regard, as I have no reason to doubt that evidence and, indeed, thought Dr. Cantrell to be a very impressive witness, I accept without reservation all that he had to say about Mrs. Kelly, and in particular, his prognosis for her future. That being so and allowing, as I have already indicated, that I considered Mrs. Kelly to be a very honest and trustworthy witness, it seems to me that an appropriate sum to compensate her for all that she has suffered and for the considerable disruption of her lifestyle since the 6th April, 2001, the sum of €25,000. As for the future, allowing that Dr. Cantrell does not expect a significant improvement to Mrs. Kelly’s condition for another three to five years and has voiced the possibility that she may never recover although he is hopeful that that doomsday situation will not arise, I think that an appropriate sum for general damages into the future is a sum of €65,000. On top of that, I am satisfied that Mrs. Kelly is entitled to be recouped the loss of earnings to date amounting to €75,961 and loss of earnings into the future. In that regard, Dr. Cantrell suggested that it would be three to five years before he would expect Mrs. Kelly to improve and, as I have indicated, he voiced the possibility that she would never improve. In my view, I must take that possibility into account in assessing future loss of earnings. I must also take into account Mrs. Keenan’s evidence that, even if Dr. Cantrell’s best hopes for Mrs. Kelly’s future are realised, she is going to have to undergo a retraining programme before she will be able to return to the workforce. In those circumstances, I do not think it unreasonable that I should; perhaps somewhat speculatively, assume that it is unlikely that Mrs. Kelly will return to work in the next eight years and I propose to allow her loss of earnings based on that assumption. In that regard, I had evidence that, were she currently at work, Mrs. Kelly would be earning a net weekly wage of €390. While I have no evidence as to what is the capital value of the future loss of €1.00 per week for Mrs. Kelly for a period of eight years from today, Mr. Logan gave evidence that that figure for a period of five years is €242 and for a period of ten years is €450. In the light of those figures, I calculate that the capital value of the future loss of €1.00 per week for Mrs. Kelly to €360 and, therefore, allowing that, if she was currently working, she would be earning a net weekly wage of €390, the capital value of her future loss of earnings is €140,400. However, allowing for the possibility that, during that eight year period, Mrs. Kelly might be unable to work due to illness, redundancy or the unavailability of work it is always a possibility although, given Mrs. Kelly’s work history to the date of her accident, I think that that possibility is a relatively small one, I must, as the Supreme Court has laid down in the well known case of Reddy v. Bates, give the defence a discount on the plaintiff’s claim for future loss of earnings and, in that regard, it seems to me that an appropriate discount is 15% so that I will assess Mrs. Kelly’s claim for future loss of earnings in the sum of €119,340. In addition to the foregoing, Mrs. Kelly is entitled to be recouped all out of pocket expenses which she has incurred and which are agreed in the sum of €602 but, of course, there must be deducted from her award a sum of €38,415 in respect of the disability benefit which she has received and will receive as a result of her injuries.
In the light of the foregoing, I will award Mrs. Kelly a sum of €247, 488 calculated as follows:-
General damages to date €25,000
General damages into the future €65,000
Loss of earnings to date €75,961
Loss of earnings into the future €119,340
Special damages €602
_____________
Total €285,903
Less €38,415
_____________
Balance €247,488
O’Sullivan (A Minor) v. Kiernan & Anor
[2004] IEHC 78 (2 April 2004)
JUDGMENT of O’Neill J. delivered the 2nd day of April, 2004.
In this action the plaintiff seeks damages for negligence arising out of an injury she suffered in the course of her delivery by the first named defendant, a consultant obstetrician at the second named defendant’s hospital known as the Bon Secours Maternity Hospital, College Road in Cork.
It is common case that in the course of the plaintiff’s delivery on 20th January, 1996, she suffered a fractured clavicle and a stretching type injury to her brachial plexus which resulted in what is known as an Erbs Palsy.
The plaintiff is the first child of her parents, the next friend herein her father and her mother Ann O’Mahoney who were married to each other in 1995. The plaintiff’s mother is a solicitor by profession.
The plaintiff’s expected date of delivery was 27th January, 1996, however early on the morning of the 20th January, 1996, she intimated an early arrival. At approximately 5.00 am her mother’s waters broke. She contacted the second named defendant’s hospital and was given advice. It became apparent coming up to 8.00 that her pregnancy was coming to an end and she contacted the hospital again and was told to come in. With her husband she drove to the hospital and was admitted in the usual way and put into a room or delivery suite. In this room there was a single bed, purpose designed for birthing, washing facilities, a small desk, a bean bag and a CTG machine. This was located just inside the door to the right. There was also a trolley containing the appropriate instruments for delivery and also a trolley containing what is known as a Venteuse machine which is a vacuum machine.
At or about 9.30 the plaintiff’s mother had her first encounter with the first named defendant. The plaintiff had not been a patient of the first named defendant during her anti-natal care. She was the patient of a colleague of the first named defendant, a Dr.Corr. Because she came into hospital on a Saturday Dr. Corr was not on duty and the system that was operated in the hospital was that each consultant would be on duty for one weekend out of three or four. The first named defendant was on duty on this particular weekend.
There was controversy as to what happened at this first encounter. It was Ms. O’Mahoney’s evidence that the first named defendant did not introduce himself in the ordinary way but stood in the doorway of the room and in an admonishing fashion while waving his finger said that he would commence to induce her if there was not significant progress in her labour.
Although the first named defendant has no recollection of this encounter and indeed has no recollection of any of the events of that day until he was phoned at approximately 11.30 that evening by a midwife, he emphatically denied Ms. O’Mahoney’s version of this conversation and it was his evidence that when taking over the patient of another colleague he would be very conscious of the vulnerability of that patient and would be at pains to properly introduce himself and put the patient at ease and that he would never address a patient in a threatening or admonishing fashion as was alleged by Ms. O’Mahoney.
For the duration of the morning Ms. O’Mahoney and her husband spent time in the room during which she had contractions approximately every 20 minutes and also spent time walking up and down the corridor. As the morning progressed it became clear that her labour was not progressing with adequate speed and a decision was made to induce her labour by infusing her with a drug called Syntocinon. The first named defendant explained this decision on the basis that after the waters break there is a risk to the baby of ascending infection if the labour continues in excess of 24 hours and to avoid that risk he decided to commence induction. At 12.00 the plaintiff was commenced on this drug intravenously and thereafter her contractions came much quicker. She continued to ambulate between the room and the corridor but it was quite clear from the evidence that her pain and discomfort greatly increased with the increasing frequency of the contractions, to the extent that by 2.00 pm or thereabouts she could bear it no longer and requested an epidural. The epidural was put in place at 2.35 and at 2.59 an electrode was attached to the baby’s scalp to monitor its heartbeat from then on. The monitoring of the heartbeat was demonstrated on the CTG machine and could be seen in the form of a trace, which has been put in evidence.
As a result of the epidural the plaintiff was no longer able to use her lower limbs and hence was confined to her bed from then on. In addition the plaintiff would of course have had no sensation in the lower part of her body. During the afternoon Ms. O’Mahoney slept for some time as did her husband on the bean bag. Getting on into the evening after 6.00 her labour began to progress more rapidly, with her cervix dilating much faster. At 9.00 or thereabouts Ms. O’Mahoney had a telephone conversation with her brother and about an hour later another with her mother and it was clear from the evidence that at that stage she was in good form and no doubt full of anticipation. Her husband was in a similar state of mind though probably somewhat more nervous than Ms. O’Mahoney.
By 11.00 Ms. O’Mahoney’s cervix was fully dilated and she entered the second stage of labour namely the active stage. The midwives who were attending her at this stage asked her to push but because of the epidural she felt she was unable to do so and after some time devoted to these, either futile or ineffective efforts, she heard one of the midwives say something to the effect that they would have to get help. It is common case that the first named defendant was rung at home by a midwife at approximately 11.30 and advised that the delivery was not progressing satisfactorily and that Ms. O’Mahoney would need assistance to achieve delivery. The evidence of the first named defendant was that the midwife in this conversation cited dips on the CTG i.e. in the foetal heartbeat as a cause of concern in the context of the ineffectiveness of Ms. O’Mahoney’s efforts to push.
At this point it is to be noted that nothing in the care of the plaintiff or Ms. O’Mahoney up to this point gives rise to any complaint relative to the injury suffered by the plaintiff or the issue of negligence. As mentioned earlier Ms. O’Mahoney did complain about the manner of her initial encounter with the first named defendant but whilst that might be a matter which would give rise to a sense of grievance it does not appear to me to be directly relevant to the issues which must be resolved in this case.
The first named defendant arrived into the delivery room at 11.30 approximately and from that point in time until the delivery of the plaintiff which is recorded as occurring at 11.45 there is a very serious conflict between the evidence of those who participated in the process and who have any recollection of it. In this regard one of the midwives Ms. Geraldine Mulcahy was called to give evidence but she had no recollection of the events themselves and in giving her evidence was solely relying upon the documentary records.
The evidence of Ms. O’Mahoney as to what happened during this quarter hour or so may be summarised as follows.
She was lying on the bed in the dorsal position i.e. on her back. She thought her back was at an angle of 50 or 60 degrees but at any rate in a relatively upright position resting against the back of the bed which was angled outwards and she was propped up on pillows. Her knees were drawn upwards so that her feet rested on the surface of the bed. She had no control over her legs because of the epidural and it was necessary for one of the midwives to hold onto one knee and for her husband to hold onto the other knee. Apart from saying something to the effect “let’s get that baby out”, not specifically to Ms. O’Mahoney but to all in the room, there was no other conversation from the first defendant and no discussion with Ms. O’Mahoney of what was to be done. She did not notice what the first named defendant was doing away from the bed but when he approached the bed she was aware of the Venteuse machine. Her evidence was that the first named defendant carried out an episiotomy. She was aware of the machine being started and it was her evidence that the plaintiff was out within a matter of two minutes or maybe less from that point in time. She described the movement executed by the first named defendant to get the baby out as a sudden yanking, a yanking back procedure and she described the plaintiff as being “yanked out”. She said that the first named defendant commented, “what a well nourished baby” and she heard somebody say “I heard something cracking there” and “we will have it x-rayed.” She then said she heard the first named defendant say to one of the midwives “I should have taken you up on that bet about the baby being delivered before midnight.” She was adamant that from the time the Venteuse procedure commenced to the delivery of the plaintiff was only two minutes, a very short time. She was adamant in her evidence that throughout this procedure her position on the bed was not altered and no-one applied any pressure to her supra pubic area.
The evidence of Mr. Colman O’Sullivan concerning this 15 minute period in summary was as follows.
He recalled the first named defendant washing his hands after he entered the room i.e scrubbing up and that he didn’t address Mr. O’Sullivan at all. Mr. O’Sullivan was sitting by the side of the bed on his wife’s left hand side. He was holding her hand and trying to reassure her although he felt he was more nervous than her. He said there were two nurses with the first named defendant, one was opposite him by the side of the bed and there was a nurse in the background. He described his wife as being propped up with pillows on the back rest of the bed. He said the first named defendant brought a device which he now knows to be the Venteuse towards the bed and that he made an incision or cut in his wife low down and he then applied the vacuum. He said he was asked by the first named defendant to hold her knee and he did that with his left hand; and that her legs were falling all over the place. He said her knees were upright and her legs were on the bed and that her feet were on the bed. He said that he was not applying any pressure he was merely holding her knee. He remembered hearing the venteuse; he heard a suction, a kind of sucking sound as it came off and the whole procedure was very quick. He said his wife’s position on the bed was not altered during the entire procedure and there was no contact between anybody present and his wife’s abdomen or supra pubic area. He said after the removal of the vacuum the baby was out within about an minute or a minute and a half, maximum, and he heard a crack, a distinctive crack and that the first named defendant worked very quickly. He said he had seen the vacuum being placed on a metal kind of table. He could hear it and after that he said that the baby was pulled out in less than a minute. He said the crack he heard was as you would crack a chicken bone or a twig; that it was like a bone and was very distinctive. He said he mentioned it straight away to the first named defendant and he responded by saying “we’ll have it x-rayed.” He described what the first named defendant did as working with his hands, as very quick, very physical and the use of force.
The first named defendant’s evidence in relation to this period is in summary.
He said on coming into the room and looking at the CTG, he saw at a glance what concerned the midwives. He then walked around the bottom of the bed up to where the wash-hand basin is. He washed his hands and put on gloves and then went over to the bed. Ms. O’Mahoney was in a semi-sitting position with a midwife supporting her right knee and the other midwife supporting the left leg with the knee bent up. The first named defendant moved in and asked the nurse holding the right leg to let him in and he supported Ms. O’Mahoney’s right foot on his right iliac crest. He then did a vaginal examination to see where the head was and to make sure that the cervix was fully dilated. This examination was done by fingers. He then inserted the vacuum cup. As a result of the vaginal examination and what he had been told he concluded that the head was low enough for a safe or easy delivery, and he made a decision that he should move to assist the delivery, by means of a vacuum assisted delivery. His reasons for opting for an assisted delivery were that there were dips in the foetal heart rate; Ms. O’Mahoney had been pushing for a 20 or 25 or 30 mins and had not made any progress and had become exhausted, and thirdly her temperature was increasing. He recalled putting on the vacuum onto the baby’s head at which stage he said to Ms. O’Mahoney “your baby is getting tired and we are going to give you a little bit of a hand”. Having put on the vacuum he nodded to the midwife to press the switch which operates the vacuum. He then waited for the next contraction as felt by the midwife and when that commenced he asked Ms. O’Mahoney to push and at the same time he applied traction pulling in a downward manner. He said the duration of the contraction lasted for three pushes and he pulled on those three pushes and succeeded in delivering the plaintiff’s head. As the baby’s head was crowning he then did the episiotomy. During all of the foregoing procedure Ms. O’Mahoney was reclining on the bed at an angle of about 30 degrees with both knees flexed with the right foot on the first named defendant’s side resting on his iliac crest and with the left foot on the midwives side or her iliac crest. The bed on which Ms. O’Mahoney was lying was a standard electronic labour ward delivery bed. The full bed was in use, i.e. the bottom third had not been removed. When the head was delivered the vacuum would have come off and the midwife would automatically switch off the machine. The vacuum dies and the cup just falls off the head. The vacuum was then put away on the trolley. He waited for the next contraction as felt by the midwife and when that happened Ms. O’Mahoney was asked to push but there was no movement whatsoever of the anterior shoulder. He said he remembered that still, with fear. There was no movement of the shoulder. Normally the anterior shoulder just pops out. This is something you normally see and feel and there would normally be no resistance anymore and the baby is flowing. You know that feel in your hands. In this case he felt no movement whatsoever and this is a horrible feeling. There is no give whatsoever and he agreed with the description of it as being like a brick wall or being stuck firm. It is a horrific feeling and you feel the cold going down your back with it. This indicates that you are into a scenario of shoulder dystocia, with the various possibilities that may ensue ranging from the delivery of a healthy baby of a healthy mother to possible brain damage for the baby or the death of the baby. He said he made a mental diagnosis of shoulder dystocia and quietly intimated this to the midwife assisting opposite him. He said he quietly advised the midwife that they would move Ms. O’Mahoney into the left lateral position. He put his hands under her bottom pulled it towards her and tilted her over towards the left. He then said to the midwife “supra pubic pressure”. This was carried out in a quite but rapid manner so as not to frighten everybody in the labour-ward. He said they then hyper flexed the knees which were already fairly flexed, the nurse pressed supra pubicly and the baby came out with, what the first named defendant thought was a minimum of traction. When the midwife applied supra pubic pressure he said he could hear a crack which he reckoned was the clavicle fracture. As he heard the crack the anterior shoulder came out and it was just a free flowing normal delivery at that stage. He then applied the umbilical clip to the chord and cut the umbilical chord, lifted the baby up and handed her over to Ms. O’Mahoney. He emphatically denied ever saying anything about taking a bet on the baby being out before midnight. He said that he moved Ms. O’Mahoney onto her left side because that was a movement he had always reckoned as being the McRoberts manoeuvre which is a manoeuvre to straighten up the pelvis in relation to the spine and to give you more room; to take the normal lordosis out of the spine and to take away the sacral prommentary. By turning the patient onto the left lateral position you can achieve the same as in its dropped position, when you get the two knees up and you can also avoid venacaval compression or a drop in blood pressure if you have the mother in the left lateral as opposed to when she is lying on her back. The physics of the movement of the legs in relation to the effective opening up of the pelvis is the same, irrespective of whether you do it with the mother on her back or on her side. He said the manoeuvrable McRoberts is the hyper flexion of the thighs and the opening up of the pelvis by doing so. He said the manoeuvre thus performed on the day, in fact worked. He said that the crack which he heard and the supra pubic pressure and the delivery all happened together, there wasn’t a split between either of them. The first named defendant emphatically denied using a “yank” that he would not dare treat a delicate child like that. He said that he had got over the shoulder dystosia by the first line of treatment i.e. the supra pubic pressure and McRoberts in the left lateral and the baby came out and gave a hearty cry and picked up well. He said it never for a moment dawned on him that he had used sufficient traction to cause Erbs Palsy and when he heard subsequently that the plaintiff had Erbs Palsy he was very dismayed by this. After the delivery of the plaintiff he attended to the third stage of labour i.e. the delivery of the placenta and wrote his note of the delivery. For this purpose he obtained the time of delivery from the midwife. This time was taken from the clock on the wall in the delivery room. He wrote his note in the delivery room at a little desk in the corner where the notes are all kept. There is also a clock built into the CTG machine, a Hewlett Packard clock but this was not synchronised with the clock on the wall. The clock on his machine is not easily visible. It can be brought up by means of pressing a button and it comes up flashing. When he had finished with Ms. O’Mahoney and the plaintiff, the first named defendant went home as he had no more deliveries that night. He calculated the time from the delivering of the baby’s head to the full delivery to be about seven minutes. He said that the traction he applied was the normal traction that would be applied to a normal delivery when the shoulder is coming anyhow and that he said the plaintiff came out quite easily with that.
As mentioned earlier and it is clear from the foregoing there is a very substantial conflict between the evidence of the first named defendant and of the parents of the plaintiff as to what happened in the course of the delivery of the plaintiff.
Having carefully considered all of the evidence I have come to the conclusion that the evidence of the parents is to be preferred to that of the first named defendant for the following reasons.
As of 1998 the evidence established that the first named defendant had either no recollection of the process of the delivery or could only recollect it in very broad terms. As a result of discussions with the legal advisors and others his evidence was that he recovered a detailed memory so as to enable him to give the very detailed evidence concerning the entire process of delivery.
I am satisfied that in the detailed account given by the first named defendant in his evidence of the delivery there was a large element of reconstruction of events based upon his professional knowledge and expertise. I don’t for a moment suggest that the first named defendant sought to deliberately mislead the court, on the contrary I am quite satisfied that he made a conscientious effort to give the court as full and detailed account of what happened during the delivery as he could. However I am left with the unshakeable impression that much of that detail resulted from a reconstruction of events, in a genuine effort by the first named defendant to recover what he perceived to be an actual memory of the events. In that circumstance I find myself unable to rely upon his version of events.
For the parents of the plaintiff the birth of their first child was an event which was likely to be etched clearly in both their memories. I am quite satisfied that neither of them was deliberately telling untruths or, perhaps in the interests of their daughter embellishing or exaggerating their evidence. Whilst each of them described the actual delivery in different terms there was a substantial convergence between their accounts. On one very important particular they were in exact agreement, namely that the position of the mother was not changed to the left lateral position and that supra pubic pressure was not applied by anyone. Insofar as the manner of the delivery and the speed of the delivery was concerned while as I said they used different terms to describe it, the substance of their descriptions appears to me to be the same. Ms. O’Mahoney described it as a yank or a pull and likened it to the tug on the starting coil of a lawnmower. Her husband described it as very physical with the use of force. Both of them were in agreement that it was extremely rapid, Ms. O’Mahoney saying that it was not more than two minutes from the start of the Venteuse procedure to complete delivery and her husband saying, less than a minute and a half from the delivery of the head.
In my view having regard to the nature of the event, they could not be mistaken about the change of position from the dorsal to the left lateral. Either they are deliberately lying about that, or else in my view, it is true. As said I do not think they were telling deliberate untruths. That being so I am satisfied that their evidence in that regard is correct and that the position of Ms. O’Mahoney was not changed from the dorsal to the left lateral during this procedure. I am also satisfied that they are right, that the supra pubic pressure was not applied.
As to the speed of the delivery there is corroboration of their evidence in the time recorded for the delivery and also in the times recorded on the CTG trace.
The note made by the first named defendant after the delivery recorded the time of delivery as 11.45 pm. This time was apparently taken from the wall clock. The evidence established that this wall clock was not synchronised with the clock in the CTG machine and there was a suggestion that there was a substantial discrepancy between these two clocks which would have the effect of extending the time available for the delivery beyond the apparent three minutes from the taking off of the electrode from the baby’s scalp which is recorded in the trace in the CTG as 11.42 approximately. However it was the first named defendant that gave evidence that when the electrode was taken off, the foetal heartbeat would have continued to be monitored using an ultra scan device attached to the mother’s abdomen and that this accounted for the continuing faint trace on the CTG trace up to and just beyond 11.44. Dr. Turner gave evidence that as soon as the plaintiff was delivered the CTG machine would be turned off terminating the trace. The trace would be torn from the machine at or about that point and placed with the plaintiffs records. An examination of the trace demonstrates that it was torn off just beyond the 11.46 line. As said earlier the last discernable trace that appears to be foetal heartbeat is just at and just beyond 11.44. Dr. Turner an expert called for the defendants explained in his evidence and I accept that the explanation, that the ultra sound does not record and trace on the CTG machine the foetal heartbeat as clearly as the electrode for the reason that it is attached to the woman’s abdomen somewhat loosely and in the activity of delivering and having regard to the changing position of mother and baby does not produce as clear a trace as the electrode would. In my view that is the probable explanation of the faintness of the trace from 11.42 up to 11.44. Dr. Turner also gave evidence which I accept that once the baby is delivered that terminates the recording of the foetal heartbeat by the ultra sound. It is certain that the trace in the CTG was torn off just beyond 11.46 line and I infer from that, as a matter of probability, the baby had been born shortly before that.
All of this leads me to the conclusion that as a matter of probability there was no discrepancy or difference of any significance between the time recorded on the CTG clock and the time recorded on the wall clock the latter being entered as the time of delivery in the record.
As said earlier, in my view this evidence corroborates the evidence of the parents as to their impression that the delivery took place very rapidly, in fact in all probability in the space of about three and a half to four minutes at most from the removal of the electrode from the baby’s scalp to enable the Venteuse cup to be applied.
I am satisfied therefore that I should accept the evidence of the parents of the plaintiff as to being a reasonably reliable impression of the speed at which the delivery took place.
There are two other items of evidence which in my view tend to corroborate or support the evidence given by the parents of the plaintiff.
The first of these is the note made by the first named defendant shortly after the birth of the plaintiff and it is in the following terms.
20th January, 1996, 23.45 vacuum assisted delivery because failure to progress in second stage and CTG dips difficulty delivering right shoulder?. Fracture clavicle.
This note was made shortly after the deliver and I accept its contents as a reflection of the state of mind of the first named defendant as to what occurred during the delivery. There are a number of features of this note which appeared to me to be remarkable. The first of these is the fact that the express diagnosis of shoulder dystocia is not so described. The evidence of all of the medical experts in this case and of the first named defendant himself described the condition of shoulder dystocia as a very definite state of affairs and a very particular and explicit diagnosis which was described by all of them, and also universally in the literature which was put in evidence in the terms “shoulder dystocia”, from what I have heard of this condition from all of these doctors from having considered this literature it appears to me to be remarkable that the first named defendant would have noted it in the record as being merely “difficulty delivering right shoulder”. This note, in this regard, tends to persuade me that whatever difficulty the first named defendant perceived himself as encountering in relation to the right shoulder during this delivery, that he did not at that time form the view that there was a shoulder dystocia nor did he make that diagnosis at that time.
That brings me to the next feature of the note which I consider to be remarkable and that is the fact that no mention at all is made in the note of the procedure used to overcome shoulder dystocia i.e. the McRoberts movement in the left lateral position together with supra pubic pressure. One would have thought it was of some importance to record what manoeuvre was used to overcome a problem such as this because that information might be of considerable relevance to the management of a subsequent delivery so that an obstetrician dealing with the later delivery would know what had either succeeded or failed.
The first named defendants evidence was that it was not the practise to note the particular manoeuvre used and he went on to say that he had been trained to make short notes rather than long notes on the basis that shorter ones are more likely to be read and that in a hospital which wasn’t a teaching historical shorter notes of the kind made here were the norm. He acknowledged that in a teaching hospital there was tendency to write essays.
In my view the universal desirability of brevity simply fails to explain an omission such as this from this note. A single short additional sentence was all that was required, to say that shoulder dystocia had been encountered and was overcome by the McRoberts manoeuvre in the left lateral position with supra pubic pressure.
The contents of this note tends to persuade me that the parents of the plaintiff are right in their recollection that Ms. O’Mahoney was not changed into the left lateral position nor was supra pubic pressure applied.
The final piece of evidence I wish to draw attention to in this regard is the injury suffered by the plaintiff. The injury to the brachial plexus was, I am satisfied caused by traction on the head of the plaintiff, applied during her delivery. The first named defendant’s evidence was, that he only applied normal gentle traction and that the baby came easily. I am satisfied that the injuries suffered by the plaintiff was caused by a force greatly in excess of normal gentle traction and in my view this injury is inconsistent with the evidence of the first named defendant as to the traction applied by him. No explanation other than an excess of traction was advanced to explain this injury and I am satisfied, on the balance of probabilities, that this injury together with the fracture clavicle was caused by the application of excessive traction to the head of the plaintiff during delivery. That state of affairs is consistent with the descriptions given by the parents of the actions of the first named defendant in delivering the plaintiff.
I have come to the conclusion, therefore, that the plaintiff was delivered in the space of about four minutes or less from the removal of the electrode from her scalp, in all probability, on the first contraction after the delivery of the head in circumstances where in my view the first named defendant had not formed the view that there was as full shoulder dystocia and where he moved to overcome such difficulty as he perceived to be there by the application of excessive traction, without resorting to any variant of the McRoberts manoeuvre or the application of supra pubic pressure. The excellent condition of the baby as reflected in the Apgar score of 9 at 1 minute tends to reinforce that conclusion by indicating that the plaintiff was not deprived of oxygen for any significant period of time and certainly not for the span of time some seven minutes that would have been required to have put Ms. O’Mahoney in the left lateral position and reopen the McRoberts manoeuvre with delivery on a subsequent contraction.
Having reached this conclusion, it necessarily follows that the standard of care given by the first named defendant in the delivery of the plaintiff was lower than the standard of care to be expected from a person of his rank in his profession and hence it was negligent.
Although that conclusion is sufficient to dispose of the issue of liability in the case, in deference to the expert evidence given by the very eminent experts called on both sides namely Mr. Clemens and Mr. Johnson for the plaintiff and Dr. Turner and the defendants, I feel I should express an opinion on the main point of difference between the plaintiff’s expert and the defendants expert.
This related to the appropriate procedure or manoeuvre to be followed or applied where a shoulder dystocia is diagnosed. Mr. Clemens and Mr. Johnson were adamant that since the mid 1990’s or 1994 perhaps at the latest, the only manoeuvre or position to be used consistent with good practice was the McRoberts manoeuvre in the dorsal position. Indeed Mr. Johnson forcibly expressed this opinion to the extent of saying that a failure to use the McRoberts manoeuvre in the dorsal position post 1994 or thereabouts would be negligence on the part of an obstetrician.
The defendant’s expert Dr. Turner vehemently disagreed with this view asserting that the essence of McRoberts was not a position but a manoeuvre, the essential feature of which manoeuvre was the hyper flexion of the thighs so as to tilt the pelvis upwards and straighten out the birth canal and remove the promontory of the sacrum. It was Dr. Turner’s opinion that this manoeuvre could be achieved equally as well either in the dorsal position or in the left lateral position and either position was acceptable and it was a matter for clinician preference, as to which would be used. He also vehemently contended that the literature available internationally on the topic did not prescribe or require the use of the dorsal position for the McRoberts manoeuvre and he stressed that cultural differences or preferences could influence the choice of position opted in different parties of the world.
There is no doubt from the evidence of all three experts that the objective to be achieved by the use of this manoeuvre in either position was the same, namely to straighten up the birth canal. This necessarily involves in addition to the upward titling to the pelvis achieved by the hyper flexion of the thighs, also the changing of the normal lordosis of the spine so that the normal inward S bend is moved in the opposite direction outwards, i.e. moving the curvature of the spine in the opposite direction which has the effect of moving the sacrum backwards.
I fail to see why the objectives of this manoeuvre cannot be achieved in the left lateral position. Indeed I would be inclined to the view that by keeping the back flat on a flat surface would tend to preserve the normal lordosis of the spine particularly if the shoulders are flat on that surface, whereas in the left lateral position, I would be inclined to the view that the upper part of the back could be brought forward more easily, thereby achieving an outward curvature on the lower part of the spine.
The literature on the subject which was put in evidence by both sides does not appear to me to establish in the unequivocal way asserted by Mr. Clemens and Mr. Johnson that the dorsal position was the prescribed position for the McRoberts manoeuvre, excluding any other position. Indeed far from this, it would seem to me from a reading of the literature, a significant portion of it contemplates the use of the left lateral position at the very least as an initial position for the manoeuvre.
I would be of the opinion therefore that the use of the left lateral position for the purposes of the McRoberts manoeuvre is an acceptable professional practice for an obstetrician when confronted with shoulder dystocia and I cannot avoid the view that the opinion of Mr. Johnson in particular that the use of the left lateral position post 1994 was negligent for an obstetrician, is a somewhat extravagant assertion.
Damages
The plaintiff suffered a fracture of the right clavicle and an Erbs palsy on the right side. The fractured clavicle was of little significance though I am sure it must have caused considerable pain to the plaintiff in the first few days of her life. The Erbs palsy is a very serious injury. This was not, understandably, detected very early on. However as the months went by it became clear that there was a gross dysfunction of the plaintiff’s right arm and shoulder. Erbs palsy was diagnosed in due course and the treatment prescribed was physiotherapy. I am quite satisfied from the evidence that from early in her life, the plaintiff had a great deal of physiotherapy in the Lavena centre in Cork. Unfortunately however this brought about very little in the way of improvement and by chance when the plaintiff was approximately a year and a half old Ms. O’Mahoney learnt from an article in a French magazine that there was a surgical procedure available to help correct the problem. She got in touch with Mr. Ralph Birch an expert with a particular interest in this problem and in due course late in 1997 the plaintiff was taken to London for surgery. This surgery involved correcting the dislocation of her shoulder by relocating the top of the humerus into its socket. After the surgery the plaintiff was placed in a body cast and I have no difficult in accepting that that was a source of grave discomfort and distress to the plaintiff and no doubt also her parents. Whilst that procedure did produce some improvement it became apparent that a further operation would be needed. This was put off until the year 2000 when the plaintiff was approximately four and a half years old. Again she was taken to London and a procedure was carried out. This involved fracturing the humerus on the right side high up and turning the shaft of the bone around and repining it together again so as to achieve a better range of movement in the right limb. At the request of the parents a plaster cast similar to the previous one was not applied and that considerably eased the post operative care of the plaintiff. After this procedure it would appear to me that the plaintiff began to progress much more rapidly and achieved considerable improvement which has confirmed to date.
I had the benefit of seeing the plaintiff and having demonstrated by her precisely what her current situation is and what her current difficulties are. I have also heard the evidence of Professor Carlstead and also of Ms. Barry occupational therapists and of Mrs. Feely another occupational therapist, and with the benefit of all of that evidence it is apparent to me that notwithstanding the improvements to date, the plaintiff is left with a very significant deformity of her right shoulder and arm and right scapula and has still significant disabilities and these disabilities will continue for the rest of her life with serious consequences for her.
As the matter stands the plaintiff is unable to get her right hand behind her head actively or behind her lower back. She also has difficultly in reaching outwards and upwards. Her right upper limb is weaker and cannot support her own weight as would a normal limb. The dexterity of her right hand is reduced as a consequence of which she does not have normal writing capacity or speed in that hand. She is right hand dominant. The restriction of movement of her right arm does cause her difficult in dressing or in managing her hair and in the future it is probable that she would have difficulty in these activities and in particular in putting on a necklace or earrings or in attaching a bra strap.
When she brings her right arm around in front of her body this tends to cause what is described as winging of her scapula. This is readily apparent with the scapula emerging into significant prominence. The appearance of her right shoulder is not the same as the left. It does not have the same square appearance but is rounded downwards. In addition she has quite a significant scar running along the front of her right shoulder.
None of these conditions are likely to significantly improve in the future. The plaintiff is now somewhat disabled in leisure and sporting activities and cannot manage the normal range of these activities. In that regard she is separated from her peers and that will continue.
Luckily the plaintiff is a very bright child and so far is doing very well academically and is top of her class. I take it as a probability that with the support of her parents and good schooling she will continue to enjoy academic success and it is a probability that she will attain the appropriate standard for a third level education and her career will progress on that basis. It is impossible at this stage to say what choice of career she would make in that context, but what is significant from the damages point of view is that there are a number of careers that she would be excluded from because of her disability. These include membership of An Garda Siochána or of the defence forces, an airline pilot, those branches of the medical or paramedical professions which require some degree of balanced physical strength and manual dexterity, the veterinary profession, and architecture because she would not be able to climb ladders or scaffolding.
At this stage it cannot be said as a matter of probability that the plaintiff will suffer any loss of earning capacity as a result of her disability but what can be said as a matter of certainty is that the range of choice of career available to her will be significantly reduced and that is a fact which must redound in general damages.
It must also be anticipated that when she reaches her teenage years there is a likelihood of considerable stress because of the disability and also the appearance of her shoulder and scapula. I have no doubt but that with the support of her parents she will overcome whatever difficulties which may arise in this area but nevertheless it is to be anticipated that these difficulties will arise and she must be compensated for them.
Approaching the assessment of general damages on the traditional basis of assessing damages to date and for the future I would award the plaintiff the sum of €75,000 in respect of general damages to date. In arriving at that figure I bear in mind that to a very large extent the plaintiffs childhood to date has been dominated by this injury and she has suffered a great deal of pain and distress from all of the physiotherapy and operative procedures required to deal with it.
For general damages for the future I would award the plaintiff the sum of €175,000 making a total of €250,000. In addition there is an agreed sum for special damages in the amount of €6,766.02.
A claim was also made in respect of the cost incurred for the surgical treatment of the plaintiff in respect of the two procedures carried out in London. Evidence was given in regard by an official of the Southern Health Board and it was my understanding of the evidence of this witness that once these procedures were not available in Ireland that there was a right or entitlement to have them provided and paid for by the health board and hence there was no obligation to reimburse the health board for the cost of these procedures. On that basis I have reached the conclusion that this aspect of the claim should be disallowed.
In conclusion therefore there will be judgment for the plaintiff for the sum of €256,766.02.
Hennessy v. Fitzgerald
[2000] IEHC 92 (13th December, 2000)
THE HIGH COURT
1999 No. 3638P
BETWEEN
JAMES HENNESSEY
PLAINTIFF
AND
MARY FITZGEARLD AND THOMAS FITZGEARLD
DEFENDANTS
JUDGMENT of Mr Justice McCracken delivered the 13th day of December, 2000
1. On 29th August, 1997, the Plaintiff was involved in a road traffic accident in which he incurred a serious injury to his right arm involving both the dislocation of his right radius at the elbow and the comminuted fracture of the ulna. He also suffered a fracture of his right little finger and an injury to his left thumb and a soft tissue injury to his lumbar region. In addition he had a head injury with lacerations on his forehead. Liability is not in issue and accordingly this case comes before me solely as an assessment of damages.
2. The Plaintiff is a qualified fitter and worked for some time in England and on the Continent. In 1992 he returned to Ireland and took over a workshop where his father had carried on a business some years earlier. He started his own business, buying old lorries, dismantling them and selling parts such as the engine and axles. He then used the bodies of the lorries as the raw material for manufacturing skips of various types by converting the bodies into skips. I am quite satisfied that at the time of the accident he had been intending to expand the business, and he had purchased some four acres of land and some machinery and equipment to enable him to do so.
3. The Plaintiff was undoubtedly a skilled and hardworking fitter, and his involvement in the business was very much hands on and on the physical side. He had little in the way of managerial skills and such books as were kept in relation to the business were kept by his wife. I am quite satisfied that as a result of the injuries suffered by him, he is physically unable to carry out his pre-accident work. He is capable of light physical work, but cannot carry out many of the functions which would be normally required of a qualified fitter.
4. Since the accident the Plaintiff has tried to carry on the business in more of a managerial capacity. Before the accident he had on occasion employed qualified fitters and for some time after the accident he brought in subcontractors to carry out the work. More recently, however, he has changed the nature of the business somewhat and is only employing apprentice fitters. The business now consists largely of manufacturing skips from bought in materials, which obviously involves considerably higher costs of material.
5. The Plaintiff is seeking both general damages which I will deal with later, and damages for loss of earnings. This latter claim is primarily based on forecasts of the profits which the Plaintiff would have made in his business had the injury not occurred. It is then said that if the business collapsed, the Plaintiff would in any event have been able to obtain a job paying between £500 and £700 a week gross as a skilled fitter. On the evidence before me I am satisfied that, by reason of his injuries, the Plaintiff would not obtain employment as a fitter, but on the other hand that he would obtain a job in one of the several occupations suggested by Mr Desmond White with an income of between £180 and £280 a week.
6. I have been furnished with evidence from accountants on behalf of both parties in regard to the Plaintiff’s business. Unfortunately, I found the evidence of the Plaintiff and of his wife to be very vague in this regard. There have been no audited accounts of the business, and in my view the figures which have been produced could not be treated as reliable. Accordingly, the accountant’s evidence is only of slight assistance. However, I am quite satisfied with regard to two matters, which give rise to some considerable difficulty.
7. Firstly, the one clear picture which came from the Plaintiff’s evidence is that, rightly or wrongly he is determined to continue the business if he can possibly do so. Secondly, the accountants all agree, and indeed it seems clear from such accounts that exist, that the business as carried on at the moment by the Plaintiff is not viable. We have, therefore, a Plaintiff who is determined to carry on a business which is losing money at a considerable rate and has no real prospect of being turned around. Causing even more difficulty is the question of whether, even if the accident had not occurred, the business would have prospered in the way put forward by the Plaintiff. On the Plaintiff’s own figures, which admittedly are very questionable, the net profit made by the business up to the time of the accident was very small, and there is no doubt the Plaintiff could have made considerably more money by working for somebody else. The Plaintiff’s accountant has done his best in producing projections, but as I take the view that these projections are based on very doubtful actual figures, I would not be inclined to rely on them. My own view is that the probability is that the Plaintiff would never have made as great an income from his business as he would have made had he sought employment.
8. The first point I have to consider is the Plaintiff’s claim for loss of income to date. He is claiming that the Defendant must compensate him, not only for the estimated earnings or profit which he would have made, but also for the losses which in fact were made by the business. These losses amount to over £35,000.00 since the accident. The Plaintiff chose to try to continue the business after the accident. That was his choice, and clearly it was the wrong choice. However, I do not think that the consequences of that wrong choice can be visited on the Defendant. It is clear from the evidence that the Plaintiff has for some considerable time been told that this business could not succeed, and has ignored all advice given to him, and apparently still intends to continue to ignore it. He is, of course, entitled to do so, but he is not entitled to a free run at the expense of the Defendant. Accordingly, in relation to past loss of earnings, and on the basis that he ought to have shut down the business, I am prepared to award him the difference between earnings which he would have made as a fitter and earnings which he was capable of making had he sought employment when he was fit to return to work. Indeed, I think this is being generous to the Plaintiff, because it is arguable that he should bear the entire loss which arose from him having decided to carry on the business. I do not have clear evidence of what these amounts would have been in 1997 and 1998, and I can only estimate them. I purpose to award him the sum of £300.00 a week in relation to the first year after the accident, when he was probably capable of very little work, and £200.00 a week in relation to the remainder of the time to date. In round figures I calculate this at £41,000.00.
9. In relation to future loss of earnings, I think that if the accident had not occurred, the Plaintiff clearly would have continued his business, probably for some years. I do not think his income would have been as great as if he had been in employment, and I suspect that at the end of the day he probably would have had to give it up. As I do not place any great reliance on the figures, I am in the position that I can only try to make a educated guess as to the Plaintiff’s loss. If he had not had the accident he would be able to find employment now at a wage of £500.00 to £600.00 a week gross. I think I must discount that figure because the Plaintiff clearly would not have been in such employment, but would have been running his own business and having, in my view a lower income. For the purpose of this calculation I would purpose to assess his income were it not for the accident at £375.00 per week nett, which would be about £450.00 per week gross, and to assess his present earning capacity at £225.00 nett leaving a nett loss of £150.00 per week. Using a multiplier of 928 as per the actuarys evidence, this would give a capital value of £139,200.00. Allowing a 10% reduction under Reddy -v- Bates for contingencies, which is very generous to the Plaintiff, I would award him £125,280.00 for future loss of earnings.
10. There are further special damages agreed at £24,040.00 and there is also a claim that the Plaintiff should be reimbursed bank interest amounting to £10,000.00. This bank interest arises partly because of the Plaintiff’s insistence on carrying on the business, which as I said ought not to be visited on the Defendant, but it also arises partly because he has had to borrow money to pay medical expenses and keep his family going to date. I would propose to allow him half this amount namely, £5,000.00.
11. Finally, in relation to general damages, the Plaintiff has suffered a serious arm injury and has ongoing pain in his arm and lower back. This will undoubtedly continue into the future, and in the case of his arm, almost certainly will to some degree be permanent. In addition, and perhaps more seriously, the Plaintiff has suffered serious depression since the accident, which I am satisfied is quite genuine, and is as a result of his injuries. Indeed, his almost fixation with wanting to continue the business against all the odds is almost certainly an attempt to keep the depression at bay to some extent. He has become very irritable and prone to bouts of uncontrolled temper and has poor powers of concentration. He is being treated on anti depressant and anti anxiety medication and the evidence of his psychiatrist is quite clear to the effect that if he cannot continue the business he will have protracted problems and may deteriorate. Sadly, I feel this may well happen. On this basis, I would propose to award him £40,000.00 general damage to date and £65,000.00 general damages into the future.
12. Accordingly there will be a decree for a total of £300,320.00.
Murphy (Nee Condon) -v- Roche
[2011] IEHC 35
Judgment by: McMahon J.
Status of Judgment: Approved
Neutral Citation Number: [2011] IEHC 35
THE HIGH COURT
[2008 No. 6203 P]
BETWEEN
MICHELLE MURPHY (NÉE CONDON)
PLAINTIFF
AND
TOM ROCHE
DEFENDANT
JUDGMENT of Mr. Justice McMahon delivered on the 26th day of January, 2011
Introduction
1. The plaintiff was a front seat passenger in a car driven by her husband on 13th November, 2006, when the car she was travelling in was hit broadside, on the passenger side by a vehicle driven by the defendant. The car in which the plaintiff was travelling was driven into a third vehicle. The plaintiff is now thirty-six years of age and is married with two children, one of whom is sixteen years of age and the other, three years old.
2. The collision was a serious one and the plaintiff was frightened and was taken from the car to Cork University Hospital immediately after the accident. The defendant has admitted liability and the case is one of assessment of damages only.
The Injuries
3. The physical injuries which the plaintiff suffered are all of a soft tissue nature. In particular, the plaintiff was injured in her right shoulder, her neck, her back and her chest (ribcage) area. Recovery has been slow and the plaintiff has not been in a position to fully return to work since the accident. The problems for the plaintiff were complicated by the fact that she was in the early stages of pregnancy at the time of the accident. Initially, there was some uncertainty as to whether she was pregnant, but when it was subsequently confirmed, it naturally caused some apprehension and anxiety for the plaintiff during the pregnancy. Thankfully, however, the baby went full term and was born in good health.
4. The plaintiff claims damages for:
(i) her physical injuries;
(ii) loss of earnings;
(iii) anxiety for the fear and apprehension during her pregnancy and for depression which followed the accident.
Previous Injuries
5. In the course of cross examination, counsel for the defence drew attention to two previous accidents, which the plaintiff was involved in, and which the defendant suggested caused similar injuries to the plaintiff, and for which, it was claimed, the defendant should not be responsible.
6. The first of these incidents occurred in January 1996, when the plaintiff fell down a stairs in rented accommodation because of a defective banister rail. In that accident, she injured her neck, her right shoulder and her lower back. The plaintiff was compensated in the sum of €10,000 for those injuries. The plaintiff claims that they were minor injuries and gave evidence that she had fully recovered long before the present accident. Having heard her evidence and having read the documentation discovered to the defendant relating to this accident, I have come to the conclusion that any injuries which the plaintiff suffered in that accident had fully resolved shortly after it and have no bearing on the injuries which the plaintiff suffered in the present case. I refer, in particular, to medical reports from that time, discovered to the defendant, and which were compiled by Dr. Derek O’Connell, and forwarded to Peter Fleming, the plaintiff’s solicitor at that time.
7. The second accident which the defendant drew attention to was a road traffic accident which occurred in July 2006, some four months before the accident the subject of these proceedings. The plaintiff’s evidence in that matter is that it was a minor rear-ending of her husband’s car while she was a passenger in it. No claim was made in respect of that accident, as it was a minor one. The cost of repairing her husband’s bumper was paid by the insurance company. The plaintiff said that she had no injuries. She was, however, pregnant at the time and she took two weeks off from work. Dr. Susan Hill, a specialist in occupational medicine, gave evidence that because of the plaintiff’s pregnancy problems at the time, and the tests associated with it, a two-week absence from her work was warranted. I accept the evidence of the plaintiff on this matter, namely, that she suffered no physical injuries in this accident, and that the loss of her baby at that time was not caused by this minor incident.
8. My conclusion, therefore, is that neither of these incidents has any bearing on the injuries which the plaintiff received in the accident, the subject of these proceedings and which occurred on 13th November, 2006.
The Plaintiff’s Evidence
9. The plaintiff’s main complaints initially related to a bruising and soreness in her pelvis area, soreness to her right shoulder, soreness and bruising in her chest (ribcage) area and to a lesser extent soreness in her neck and back.
10. When it was confirmed, however, that she was also pregnant when this accident occurred, it caused her great anxiety which ultimately developed into a depression after the baby was born. The fact that she was pregnant also restricted the medications and the investigations (especially, the x-rays) which could be undertaken after the accident. With regard to the plaintiff’s complaint about being depressed there was some suggestion by the defendants that this was normal postnatal depression and was unrelated to the accident which occurred in November 2006. I will deal with the evidence of Dr. Campbell (the Psychiatrist) on this issue later, but it is appropriate to say at this juncture that Dr. Derek O’Connell (the plaintiff’s G.P.) testified (a) that the plaintiff was only some weeks pregnant at the time of the accident and (b) that he was treating the plaintiff for depression during the period after the accident and before the birth of the baby in July 2007. This clearly suggests that the plaintiff’s complaint in this regard was not totally connected or due to the birth of her baby. There can be little doubt in any event that after the accident the plaintiff was “anxious” for her unborn child and I am not convinced that her subsequent depression was solely of the postnatal kind. Her natural anxiety after the accident may have provided a foundation for subsequent depression due partly to her physical injuries, the slowness of her recovery and to her natural “low” after the baby was born. I will address this more fully in the context of Dr. Campbell’s evidence later in this judgment.
11. The plaintiff’s injuries are apparently all of soft tissue variety. Various x-rays and scans have confirmed this. Normally one would expect such injuries to resolve within a reasonable period (frequently estimated to be between 12 and 24 months), but such progress is dependent on the nature of the trauma suffered and the vulnerability of the injured party.
12. After the accident, the plaintiff went to her G.P., Dr. Derek O’Connell, and when the prescribed medication was not having the desired effect she was referred to various specialists. Dr. O’Connell treated her conservatively with medications initially but he had to strengthen the dosage over the years when the plaintiff was not getting obvious relief. He referred her first to Dr. Mark Phelan because of her persistent problem with her right shoulder.
Dr. Phelan
13. When Dr. Phelan saw her first on 7th September, 2007, the plaintiff was complaining of a number of issues relating to her neck, her right shoulder and her chest area, which at that time according to Dr. Phelan was the most serious problem in his view. The plaintiff found the 12 hour shift at work very difficult for her and complained of pain in that area when she exercised and when she was lying down. He gave her some nerve blocking injections which gave the plaintiff some good relief for a couple of months. The witness indicated that the chest area was a difficult area to treat because of the constant movement of the chest. Scans did not help to identify the problems although a mild bulging of the disc showed up which Dr. Phelan said was not abnormal in a woman of the plaintiff’s age.
14. The other complaint that the plaintiff had at that time related to her right shoulder and Dr. Phelan referred the plaintiff to Mr. Mahalingam, an Orthopaedic Surgeon, for this problem. Dr. Phelan also recommended to the plaintiff opium patches which were designed to control the pain by slow release of the drug through the skin. Dr. Phelan expressed the view that the plaintiff was genuine and was very anxious to get back to work, but was depressed because of her inability to do so. He said that it was difficult to give an accurate prognosis for her chest problems at the moment. The patch treatment had to be discontinued as the plaintiff developed an allergy which according to Dr. Phelan was not unusual. By April 2009, Dr. Phelan felt that the plaintiff’s neck, back and shoulder were getting better. At that time, it was his view that the problems relating to the chest wall were beginning to dominate as the long term issue. In July 2009, Dr. Phelan felt it would be beneficial if the plaintiff could go back to work. The social contact would help the plaintiff and alleviate guilty feelings she had because her husband had to work longer hours while she was forced to stay at home. Dr. Phelan, however, was concerned about the 12 hours shifts and the nature of the plaintiff’s job which involved twisting and lifting of repetitive nature. In cross examination, Dr. Phelan explained that the chest problems related to the internal mechanics of the wall of the chest which he asserted can be difficult to treat at the best of times.
Mr. Mahalingam (Orthopaedic Surgeon)
15. Mr. Mahalingam treated the plaintiff principally for her shoulder pain. He diagnosed a frozen shoulder and intervened (arthroscopy) through keyhole surgery with some success. The plaintiff reported good relief for a period of about two months. As Mr. Mahalingam explained, however, his intervention addressed a condition that was secondary to the main problem and pain could recur if the primary problem did not resolve. He gave the opinion that eventually the shoulder should fully recover and there would be no arthritis. He did not treat her neck or back. He confirmed that the plaintiff had a frozen shoulder and that she was genuine in her complaints.
Dr. Susan Hill (Occupational Physician)
16. Dr. Susan Hill is an Occupational Physician and a specialist in that area. She was engaged by the plaintiff’s employer to examine and report on the plaintiff in relation to her ability to carry out her job, which as already noted involved some repetitive lifting and twisting over shift periods of 12 hour duration. She first saw the plaintiff on 7th December, 2006, in relation to the injuries which the plaintiff suffered in this accident. Prior to this, the plaintiff presented as a healthy girl with a good working record and Dr. Hill’s practice had seen very little of the plaintiff except for the mandatory annual check-up ordered by the employers for all employees. Dr. Hill gave evidence that the plaintiff was genuine and was anxious to get back to work. The plaintiff’s efforts to return to work, however, were not successful and Dr. Hill had reservations about the nature of the work, the 12 hour shift and the increased targets being imposed on the people in the plaintiff’s shift at the time. Having described the various attempts by the plaintiff to resume her old job without success, Dr. Hill concluded that the main issue for the plaintiff is that she cannot now tolerate the work involved in her old job. The plaintiff’s decision to go part-time in an effort to re-engage was fully justified. Dr. Hill was positive about the plaintiff accepting the new job now on offer as it involved no shift work (it was 8.30am to 5.30pm, four days a week and 8.30am – 1.00pm on Fridays) and was a lighter job. It was less well rewarded, however. She was hopeful that the plaintiff would recover fully in time and hoped that this might be within the next 12 to 24 months, but could not be certain in the plaintiff’s case given her history. In cross examination, she confirmed that she had a note of chest pain in February 2007 and further notes of “anxiety about pregnancy” in December 2006 and January 2007, and one of “depression” in October 2008 following “the birth of the child”.
Dr. Aisling Campbell
17. Dr. Aisling Campbell, Consultant Psychiatrist also gave evidence to the court. Dr. Campbell was first engaged on behalf of PIAB to assess the plaintiff and later, after the file was released back to the courts, she was engaged by the plaintiff’s solicitor to furnish a medico-legal report. She recorded the plaintiff’s medical complaints after the accident and gave evidence to the effect that the plaintiff in early 2007 was very anxious about the well being of her unborn baby; she was having nightmares of a small white coffin and her sleep pattern was broken. These understandable apprehensions, which could be described as “quite marked anxiety”, continued after the child was born and later developed into what might properly be called depression by October 2007. Her medication increased from painkillers, to sedatives to anti-depressants over time. Although postnatal depression occurred in one in eight women, Dr. Campbell was of the view that the anxiety for her unborn baby and the chronic pain associated with her ongoing physical ailments contributed to the onset of the depression that manifest itself at this time. It could not be attributed solely to post-natal issues. She was further of the view that the depression resolved sometime later, after perhaps 8 – 12 months, and that her difficulties now were more properly described as anxiety and frustration at the slow recovery of her physical injuries and her inability to resume her work. There was no doubt that the plaintiff benefited from the social aspect of the workplace and it also improved her self-esteem. Dr. Campbell felt that the plaintiff needed to undergo an intensive pain management programme to address her ongoing physical problems, but that such programmes were not readily available. An early return to suitable work would undoubtedly benefit the plaintiff. Dr. Campbell was of the view that while the plaintiff was “a poor historian” in her ability to recount her medical problems, she was genuinely trying to record her difficulties at all times. She found no element of exaggeration in the plaintiff’s complaints.
Prof. Michael G. Molloy (Consultant Physician/Rheumatologist)
18. Prof. Molloy examined the plaintiff and reported on her on 6th November, 2009, 3rd February, 2010 and 26th August, 2010.
19. He was fully aware of the history when he first examined her in 2009. At that time he was concerned particularly about the injury to the chest wall and he ordered CT Scans, something he said he would not do unless he was seriously concerned. The scans were clear. The plaintiff clearly had soft tissue problems around her chest which he considered were induced by trauma. He said that it was very difficult to predict how long these problems would persist since the lung is a mobile organ and the injuries occur at the junction between the bone and cartilage. He also said that the shoulder injury may well persist into the future. He too felt that the nature of her job and the long shifts would be a problem and he recommended shorter and more socialable hours. He said he advised the plaintiff to go back to part-time work. He noted that the plaintiff was engaged in exercises and in particular had been swimming. In December 2010, the plaintiff complained of back and leg pain of a significant nature. He said that there was a spasm in her back and restriction of leg movement. He had ordered an MRI Scan but this had not yet been done. He confirmed that this would effect her gait. This was relevant because a private investigator’s report dated 6th January, 2011, commented on the restricted walking movement of the plaintiff, feigned in his view, as she went to visit her solicitor on that day.
20. Prof. Molloy anticipated in the future that the plaintiff will have to resort to painkilling drugs when required and that the shoulder may continue to give problems into the future. She should engage with an active rehabilitation programme.
21. In cross examination, Prof. Molloy confirmed that what was involved was soft tissue injuries but he had a guarded prognosis. Nevertheless, he would encourage the plaintiff to re-engage with light work. He said he would hope for a resolution in a reasonable period but he continued to have a reservation in relation to her right shoulder. When it was put to him that the plaintiff had an incident 14 years ago and another minor road traffic accident 4 months before the accident in these proceedings, he said that these had not been mentioned to him, but if it had not caused a problem for the plaintiff she might not tell him. He confirmed that in his view the plaintiff was not exaggerating her complaints in any way.
Mr. Desmond White
22. Mr. Desmond White, a Vocational Rehabilitation Consultant also gave evidence. He saw the plaintiff in May 2010 and gave her advice relating to her work position. Taking into account the plaintiff’s ongoing medical problems and the strain the former job was putting on her and on her family, he advised her to retrain for less physical employment. The problem was that even if she did retrain there were few suitable opportunities available now or in the foreseeable future. Mr. White recognised that the plaintiff’s employers were one of the best in Cork and he acknowledged that the new job opportunity on offer to her now with these employers was “a perfect opportunity” for her to get back to work.
Dr. Brian Mulcahy (Consultant Physician and Rheumatologist, Clinical Senior Lecturer, UCC)
23. Dr. Brian Mulcahy examined the plaintiff on behalf of the defendant on 19th May, 2010. He confirmed that the plaintiff undoubtedly suffered soft tissue injuries as a result of the road traffic accident. He said that nothing unusual turned up on the MRI Scans. His evidence was that the plaintiff did not tell him of the fall she had on the stairs 14 years earlier and he would have expected that she would have disclosed this to him. When it was put to him that the plaintiff had said that she was only asked about previous road traffic accidents, he said that he would invariably ask about all previous accidents not only road traffic accidents. Of the recent road traffic accident (4 months earlier) he said that the plaintiff indicated it was only “a tip” and that her back stiffened but it resolved in a couple of days. He agreed that some soft tissue injuries are slow to recover and the recovery time is difficult to predict on occasions. A resolution might normally be expected within 12 to 24 months, but in a person as young as the plaintiff, he estimated “that within ten years after the accident most would have recovered”.
24. On examination of her, he felt that the plaintiff might have been exaggerating in her forward bending movements which he felt should not have been as stiff as the plaintiff indicated. Because of this remark in his report, the question of whether the plaintiff was genuine or not was put to the plaintiff in cross-examination. She vehemently denied feigning her injuries. Each of the other treating doctors was asked by the court to comment on this suggestion and unequivocally and unhesitatingly they declared that the plaintiff was genuine in her complaints and was most anxious to return to work.
25. I found Dr. Mulcahy’s evidence was measured and reasonable and his comment that he felt the plaintiff was exaggerating when she was asked to do her forward back movement should not be taken out of context. It must be recalled that Dr. Mulcahy only saw the plaintiff once in an examination that lasted approximately 20 minutes. The plaintiff herself indicated that she had good days and bad days.
Michael Kelleher (Private Investigator)
26. Mr. Kelleher was engaged by the defendants to observe the plaintiff and he did so on two occasions. The first observation occurred on 22nd December, 2010, when the plaintiff was observed outside her house. Mr. Kelleher said he saw the plaintiff’s husband and her young child as well as the plaintiff in the front garden of the plaintiff’s house and that the husband was playing with the child but that on one occasion the plaintiff made a snowball and threw it at her daughter. Mr. Kelleher did not observe any restriction in the movement of the plaintiff on that day. The plaintiff in her evidence when it was put to her said on that occasion it could have been her daughter that was observed as the investigator was some 300 yards away from the scene and there were no photographs of that incident before the court. After that, the plaintiff and her husband went in a car to the shopping centre at Blackpool where she walked around the shops for approximately an hour and fifty minutes. The plaintiff was observed as she walked from shop to shop and Mr. Kelleher said that she did not seem to have any restriction in movement. She did not sit down as far as the investigator was concerned during that period. Photographs of this incident were before the court. The plaintiff said in her evidence that she would probably have taken medication before she went on the shopping outing and that on that day she was wearing new MBT shoes which her husband had just bought her.
27. The second occasion where the plaintiff was observed was on 6th January, 2011, and in this instance, Mr. Kelleher said he followed the plaintiff as she and her husband drove to town. After they parked the car he followed the couple as they made their way to her solicitor for a consultation. He said that he noticed a marked restriction in the plaintiff’s movements on that day and the insinuation was that as she prepared to go to her solicitor in connection with this case she adopted a more restricted gait. Photographs of this incident were also exhibited to the court. Having carefully examined the photographs, eighty six in all, I am of the view that the photographs disclose nothing which would detract from the plaintiff’s version of events. As to the allegation that the plaintiff was seen linking her husband as they walked to the solicitor’s office, this could hardly something to be held against the plaintiff, as married couples frequently link each other for no other reason than to display affection and solidarity. Sometimes they might even do so for support. That some other photographs from 22nd December, show the plaintiff smiling does not warrant any adverse conclusion either. The photographs on their own are of no assistance to the court and certainly do not compel an adverse conclusion in relation to the plaintiff’s veracity. Neither is the evidence of Mr. Kelleher such that it would lead me to conclude that the plaintiff was not genuine in her complaint. There were no photographs or evidence of the plaintiff bending or lifting or running or jumping or stooping or carrying heavy shopping bags or engaging in any activity that would contradict the case she makes in these proceedings. In any event, as already mentioned, since the issue was raised, the court asked each of the medical practitioners who treated the plaintiff as to what their view was in relation to the genuineness of the plaintiff and each unreservedly affirmed that she was a genuine person who suffered injuries and who was very anxious to return to work.
Conclusion on the Plaintiff’s Injuries at Present
28. With regard to the plaintiff’s injuries which have been outlined above, I note and accept the following in relation to her present condition:
(1) Neck: The plaintiff indicates that her neck is a lot better now although she does get spasms now and then if she moves quickly. She can deal with this, however.
(2) Back: She said her back was bad in September but it has improved since then.
(3) Shoulder: She said her shoulder is better now and she is sleeping on it and it has shown an improvement in recent months.
(4) Chest area: She said her chest area is giving her some problems still.
29. Bearing in mind, the reservations which Prof. Molloy had about the plaintiff’s right shoulder and her present chest complaints, I have formed the view that the plaintiff will continue to recover and I estimate that on the evidence before me she will have made a good, if not full, recovery within a period of approximately two and a half years, by which time her pain and suffering will have eased considerably. I am not satisfied, however, that the plaintiff will be able to go back to her old job then, or at anytime after that. Given her history now I think it unlikely that her old job would be available to her with her present employers. The evidence of Mr. Desmond White, the Vocational Rehabilitation Consultant, which I accept, is relevant in that regard. I address below the appropriate multiplier that should be applied in relation to future earnings.
30. Damages
31. Based on the medical and other evidence before me, I make the following awards in favour of the plaintiff:
(a) Pain and suffering to date: €45,000
(b) Pain and suffering into the future: €25,000
(c) Medical expenses incurred by the plaintiff to date have been agreed in the sum of €9,563.
32. Loss of earnings to date have been set out in a schedule compiled by the plaintiffs. These are calculated on the basis of lost wages while the plaintiff was out of work because of injuries suffered in the accident and the reduction in pay she received when she re-engaged on a part-time basis. The evidence of the plaintiff’s absences from work, including the dates and the reduced payments, given by her employers, were accepted by the defendant. The defendant did, however, contest the sum of €7,728 which the plaintiff claimed when she availed of an extension to her maternity leave from the 9th January to the 30th March 2008. I am satisfied that the plaintiff is not entitled to this sum in the circumstances and I disallow it. I do not accept the defendant’s objection to the plaintiff’s decision to stay out of work from 26th May to the 4th of July 2007, when the baby was born. In view of the anxiety and apprehension caused by the accident during the pregnancy the plaintiff was entitled to exercise caution at that late stage of her pregnancy. The amount due under this heading therefore is €77,353.
Future Loss of Earnings
33. Mr. John Logan, an actuary called on behalf of the plaintiff made some calculations taking into account the likely loss of income which the plaintiff will suffer into the future. The evidence, which I accept, is that the plaintiff will not be able to go back to the job which she held before the accident. The nature of this employment involved the repetitive physical exertion which the plaintiff has tried to resume without success since the accident. Her former position also involved 12 hour shifts which she admits she is no longer capable of doing for the foreseeable future.
34. Fortunately, in the present climate at least, her present employer can make two other positions available to the plaintiff at lower remuneration. Her former job carried an annual salary of €44,873 whereas the other jobs on offer, a part-time (likely to become permanent in the future) and a new fulltime post (referred to as “the innovation position) carry gross annual salaries of €22,436 and €32,293 respectively.
35. Given the plaintiff’s history of employment with the current employer, her undeniable wish to return to some form of employment, preferably with her current employer, and the undisputed medical evidence of the benefits for the plaintiff of re-engaging in the workplace, especially for her self-esteem and her general psychological well being, I am of the view that the plaintiff will be back in the workforce with her old employer in the near future. The evidence from her employer was that she was to start back last Monday in the part-time position, but did not do so presumably because of her case being listed in this Court for hearing. Ms. Julia Kelleher (Human Resources Department) for her employer also confirmed that the plaintiff is an applicant (seemingly the only applicant) for the “innovation position” and indicated to the court that she is likely to be successful. I take this to mean that it is reasonably probable that she will be engaged in this post. The appointment is probationary only for 12 months, but again the evidence of Ms. Kelleher was that given the plaintiff’s history with the company, her experience and her good record, it is likely she will be made permanent in that position after the probationary period has expired. Nothing, of course, is certain, but I hold, given this evidence, and all the circumstances referred to above, that this is likely to be the eventual outcome and I base her future losses on this conclusion.
36. This, of course, means that the plaintiff’s new salary will be somewhat lower than her previous salary: the old salary was €44,873 and the new salary will be €32,293 per annum. The difference therefore is €12,580 per annum or €119 net per week. This last figure has been advanced by Mr. Logan and is accepted by the defendants.
37. I am not prepared to conclude, in the present uncertain economic climate, at national and international levels, that the plaintiff could, had she not been injured, fairly assume that her employment, even with her current supportive employers would be guaranteed until she reached 65 years of age. Given the unprecedented economic uncertainties, I am of the view that the court should apply the appropriate multiplier as if the plaintiff’s continued employment in her own job would only have continued for a further 10 years from 7th January, 2011. The appropriate multiplier, according to Mr. Logan and not contested by the defendant, for such a period is €468 for every euro lost per week which I have determined above to be €119. On these figures, therefore, I calculate the plaintiff’s loss of future earnings to be €55,692. I have no reason to make any further deduction from this sum since the evidence in relation to the plaintiff’s health prior to the accident was not such that her ability to work for the next 10 years was in question. The difference in the plaintiff’s pension entitlements when she reaches 65 years, based on the difference between her old salary and her new salary, was not significant according to the evidence of Mr. Logan, the actuary called by the plaintiff. I have borne it in mind (as well as the reduced future gratuity on retirement) when I was making the earlier assumptions and so I make no separate award in respect of these. There are no other Reddy v. Bates considerations which would cause me to reduce this sum further.
38. The total due to the plaintiff therefore comes to €212,608.
Gildea & Ors -v- Aer Lingus PLC
[2008] IEHC 75 (03 March 2008)
Judgment of Miss Justice Laffoy delivered on 3rd March, 2008.
Background to judgment
The substantive claims in these proceedings were before this Court and issues arising therefrom were adjudicated on on three occasions in 2002 and 2003. The plaintiffs were employees of the defendant (Aer Lingus) who, in 1990 and 1991, were seconded to a subsidiary company of Aer Lingus known as TEAM Aer Lingus (TEAM) and who, at the end of 1998, transferred back to Aer Lingus on the sale of TEAM and its undertaking to a Danish company, FLS.
The first substantive issue with which the court was concerned was whether the plaintiffs and other workers who transferred to TEAM were guaranteed parity of pay, while they were in TEAM, with workers of Aer Lingus who were not seconded but remained working in the maintenance and engineering area of activity in the division of Aer Lingus known as Commuter. In a judgment delivered on 15th April, 2002, Kearns J. decided that issue against the plaintiffs, holding that the relevant contract did not include any term, express or implied, whereby TEAM workers would enjoy parity of pay with comparable workers in Aer Lingus. While useful in setting the scene in which the dispute between the parties arose, that judgment is not of any relevance to the issues with which the court is now concerned, because the decision was accepted by the plaintiffs and the dispute thereafter concerned the plaintiffs’ rights and entitlements after they returned to Aer Lingus at the end of 1998.
On the second occasion on which the court was concerned with the substantive issues, the primary issue which the court determined was whether the plaintiffs, following their return to Aer Lingus from TEAM, were entitled to maintenance work which accorded with their qualifications and experience, or, if such work was not available, whether they were entitled to compensation or damages in lieu thereof. Kearns J. delivered his judgment on that issue on 8th October, 2002. He decided the issue in favour of the plaintiffs, and in a later judgment of 30th April, 2003 he limited the plaintiffs’ entitlement to a period of four years following the end of their secondment to TEAM. The conclusions of Kearns J. on that issue are the starting point for this Court’s consideration of the first issue, the so-called “NDT claims”, addressed in this judgment and they will be considered in detail later.
In 2002 and 2003 the substantive issues were litigated by reference to the claims of five plaintiffs who were chosen as sample or test cases. In April, 2003 Kearns J., having heard evidence from those five plaintiffs, dealt with a number of issues in relation to their claims, including whether they were entitled to general damages. In an ex tempore judgment delivered on 30th April, 2003 he held that they were not. The status of that judgment vis-à-vis the plaintiffs other than the five sample or test plaintiffs, as regards one aspect of the claims of some of those plaintiffs, is at the core of the second issue with which the court is now concerned, the claims for damages for personal injuries.
The order of the court on foot of the three judgments of Kearns J. was perfected on 4th June, 2003. The order specifically related to the claims of the five sample plaintiffs and recited the process through to 30th April, 2003. Insofar as is relevant for present purposes, the court declared as follows:
“1. The Plaintiffs were at all material times and continue to be in the employment of Aer Lingus.
2. The Plaintiffs are entitled as employees of Aer Lingus upon the end of their secondment to TEAM to be treated as though TEAM had never existed and were to be paid the same levels of remuneration as mechanical engineers employed by Aer Lingus who had not been seconded, to have their seniority fully recognised and to be placed on the appropriate incremental scale as though they had never left Aer Lingus, such entitlement to be limited to a period of four years following the end of their secondment with TEAM Aer Lingus …”
The order then set out the sums to be paid to each of the five sample plaintiffs.
The plaintiffs appealed to the Supreme Court and judgment on the appeal was delivered by McCracken J., with whom the other four judges concurred, on 20th December, 2005. As the judgment of McCracken J. discloses, there was only one issue to be adjudicated on by the Supreme Court and that was whether the rights of the plaintiffs to be entitled to be treated as if they had never been seconded at all but had remained in the employment of Aer Lingus were in some way limited in time. The Supreme Court held that they were not. In consequence, the words “such entitlement to be limited to a period of four years following the end of their secondment with TEAM Aer Lingus” were deleted from the declaration made by the High Court at paragraph 2 of the order dated 4th June, 2003. The Supreme Court ordered that the matter be remitted to the High Court for assessment of the monies owing to the plaintiffs.
The matter came back to the High Court for hearing on 6th March, 2007. After hearing submissions and evidence for one and a half days, on the second afternoon of the hearing the matter was adjourned by consent to enable the parties to endeavour to resolve issues which had arisen. Eventually, the matter was re-listed for hearing on 12th February, 2008. On that occasion the court heard submissions and evidence over two days. The parties were in discussions for the next two days.
The discussions ultimately resulted in an agreement (the Settlement Agreement) which leaves three matters, other than costs, to be determined by the court. All other matters are to be resolved by an agreed process or, alternatively, they were disposed of. Two of the matters to be determined by the court are dealt with in this judgment and they are:
(1) what are described as the “NDT claims”, which relate to three plaintiffs; and
(2) claims for damages for personal injuries which are to be decided in these proceedings and which relate to seven plaintiffs.
The third matter is separate and distinct and is not dealt with in this judgment.
In addition to these proceedings (the King proceedings), the Settlement Agreement relates to two other actions which were before the court in March, 2007 and in February, 2008, namely:
(a) Barber & Ors. v. Aer Lingus Plc (Record No. 3155P/2006) (the Barber proceedings) which, by order of this Court (Clarke J.) dated 20th November, 2006 had been listed for hearing with the King proceedings; and
(b) Byrne & Ors. v. Aer Lingus Plc (Record No. 2000/7354 P) (the Byrne proceedings).
The position of the parties in the three actions, as recited in the Settlement Agreement and as represented to the court, is that the findings of the High Court in the King proceedings, as varied by the Supreme Court, would be binding on all the parties.
So the Settlement Agreement, as regards the invocation of the court’s jurisdiction, effectively disposes of all claims in the three actions apart from the three matters, which are to be decided by the court. It also provides that the court shall decide the question of costs that may arise in each action.
NDT Claims
The NDT claims relate to three of the plaintiffs in the King proceedings, William King, Thomas Burke and Brian Webberley, whom I will refer to collectively as the NDT Claimants. The issue to be determined is whether on their return from TEAM to Aer Lingus in 1998 and thereafter they were and are entitled to be remunerated on the pay scale referable to a Senior Simulator Specialist, as they contend.
The following historical outline is based on the evidence of Mr. King and Mr. Webberley. Mr. Burke did not testify, but the court was informed that his position was the same as Mr. King. It is also based on the evidence of Mr. Dermot McShane, who was called on behalf of Aer Lingus, and on various documents which were put in evidence. It represents my understanding of the true situation which prevailed over the period of the employment of the NDT Claimants, although it may not accord fully with the NDT Claimants’ understanding.
When the NDT Claimants were seconded from Aer Lingus to TEAM in 1990 all three were graded as Senior NDT Inspectors. Up to 1990 the non-destructive testing function, which was part of the mechanical and engineering function, was carried on “in house” by Aer Lingus. In 1990 and 1991 the function was transferred to TEAM. Thereafter, no non-destructive testing functions were carried out by Aer Lingus. After the sale of TEAM, Aer Lingus outsourced its non-destructive testing requirements to the purchaser, FLS, and subsequently to its successor, SRT. The position, accordingly, was that when the NDT Claimants returned to Aer Lingus at the end of 1998 there was no work in the non-destructive testing area for them to perform.
Their claim is that the grade existing in Aer Lingus which should have been chosen as the comparator for determining their pay on return was and is Senior Simulator Specialist. As a matter of fact, the basis on which they have been remunerated in accordance with the judgments of this Court (Kearns J.) and the Supreme Court in these proceedings is by reference to the pay scale for the grade of Shift Controller Technical in the case of Mr. King and Mr. Burke, and Shift Supervisor Technical in the case of Mr. Webberley. At this juncture the court is concerned with whether their claim for the differential between what they have been paid between the end of 1998 and now, or, in the case of Mr. Webberley, the date of his retirement, on the one hand, and what they would have been paid as Senior Simulator Specialists, on the other hand, in the same period is well-founded. The court is not concerned with the quantification of the claim.
On the basis of the evidence adduced, it would appear that the grade of NDT Inspector came into being on foot of a collective agreement dating from August, 1984. The grade applied to NDT personnel who achieved specialist qualifications which were relevant to the specialist functions they carried out. The personnel were non-supervisory personnel, but the effect of the agreement was that they were paid by reference to a pay scale which was also applicable to supervisors. An agreement in June, 1989 with Technical Supervisors, which involved restructuring of the grades and introduced the new grades of Senior Supervisor and Supervisor Aircraft Engineer, impacted on the 1984 agreement. In November, 1989 this impact was dealt with by the introduction of a new Senior NDT Inspector pay scale and a reorganisation of the NDT Section. Thereafter, Mr. King and Mr. Burke were remunerated at Senior Supervisor level, whereas Mr. Webberley was remunerated on the Senior NDT Inspector scale, which, as I understand it, mirrored the Supervisor Aircraft Engineer pay scale. However, a special arrangement was made with Mr. Webberley on 29th November, 1989 which was personal to him. Under that arrangement, on reaching the maximum point of the Senior NDT Inspector scale he would progress on a personal basis on to the Senior Supervisor scale between the 25th and 26th points of the scale. Mr. Webberley’s evidence was that that arrangement was never implemented because he had transferred to TEAM before he reached the maximum point on the Senior NDT Inspector’s scale and when he reached the maximum point in 1994 he got no further increments.
The court’s attention was drawn to two matters which arose while the NDT Claimants were seconded to TEAM. The first was a recommendation of the Labour Court in November, 1994 in relation to Technical Supervisors within TEAM. The recommendation recorded that the specialist staff who were on the Technical Supervisor pay scales, such as the Senior NDT Inspectors, although they were not expressly mentioned, would retain their then current pay structure. So, apart from recognising their speciality, the recommendation did not affect the NDT personnel in TEAM in real terms. The second matter was an agreement, which was referred to as the Flynn Agreement of September, 1998, and which related to engineering personnel who had not gone on secondment to TEAM but were employed as what were known as “Aer Lingus Commuter Engineering” personnel. That agreement involved, inter alia, the alteration of job titles. The job title of Senior Supervisor became Shift Controller Technical. In relation to the period since their return to Aer Lingus at the end of 1998, Mr. King and Mr. Burke have been paid by reference to the pay scale applicable to Shift Controller Technical. The job title of Supervisor Aircraft Engineer became Shift Supervisor Technical under the agreement. In relation to the period from his return to Aer Lingus at the end of 1998 to his retirement Mr. Webberley was paid in accordance with the pay scale applicable to a Shift Supervisor Technical.
The basis on which the NDT Claimants contend that the appropriate comparator is the Senior Simulator Specialist is the similarity, historically, between the functions and method of remuneration of Simulator Specialists and Senior NDT Inspectors. Like NDT Inspectors, Simulator Specialists performed a specialist function. Both grades were remunerated on the basis of a supervisor pay scale, although they were not supervisors. They worked the same type of shift.
The function performed by the Simulator Engineers related to the operation and maintenance of flight simulators. That function remained within Aer Lingus and the Simulator Specialists remained in Aer Lingus. Some differences between the functions of the Simulator Specialists and the function of the NDT Inspectors were pointed out in the evidence of Mr. McShane: that the NDT Inspectors’ functions were of a maintenance and engineering nature, whereas the Simulator Specialists functions related to avionics; and that the NDT Inspectors reported to the Maintenance and Engineering division, whereas the Simulator Specialist reported to Fight Operations. I do not consider those differences to be of significance. What I do consider to be of significance is the fact that there was no formal relativity between the pay scale of the NDT Inspectors and the pay scale of the Simulator Specialists, which I understand to be accepted by Mr King, if not by Mr. Webberley. As a matter of fact, however, there were parallels between NDT cadre and Simulator cadre in that before the agreement of December, 1998 to which I will refer to later, Senior Simulator Specialists were remunerated on the pay scale applicable to Senior Supervisors and Simulator Specialists were remunerated on the pay scale applicable to Supervisor Aircraft Engineers.
What I also consider to be of significance is that it is clear from the evidence of Mr. McShane that Simulator Specialists did not regard themselves as being in a situation comparable to NDT Specialists. In 1996 they submitted a pay claim seeking rates of pay based on the then current industry norm, that is to say, rates payable by other flight simulator operators, for example, other airlines. That claim eventually led to the December, 1998 agreement which was based on a recommendation of Mr. Phil Flynn. The agreement resulted in a three-level grading structure introducing, in addition to the Simulator Specialist and the Senior Simulator Specialist, a new lowest grade of Simulator Engineer. What is crucial for present purposes is that the then existing incremental pay scales were abandoned and replaced, in the case of each grade, with a single annualised figure, which included basic pay, payment for lieu days, average rosters and overtime and acknowledgement of productivity. The new grading structures and pay provisions were conditional on the implementation of changes in work practices and a revised shift system. Mr. McShane’s evidence was that the Flynn December, 1998 agreement is unique within Aer Lingus, in that it is the only annualised hours contract which exists between Aer Lingus and any group of its four and a half thousand employees.
It is necessary at this juncture to consider the court’s current function, which, in general terms, is to determine the NDT Claimants’ contractual rights in the light of the judgment of this Court (Kearns J.) delivered on 8th October, 2002 and the judgment of the Supreme Court delivered on 20th December, 2005. In his judgment, Kearns J. set out his conclusion on the position of the claimants on their return to Aer Lingus in 1998 as follows:
“I conclude therefore on this issue that on returning to Aer Lingus in 1998, the claimants were at that point entitled to do so as if TEAM had never existed, that they were then entitled to be paid the same levels of remuneration as mechanical engineers employed by Aer Lingus who had not been seconded. They are further entitled, in my view, to have their seniority fully recognised and to be placed on the appropriate incremental scale as though they had never left Aer Lingus. … on their return and from that point onwards they should be no better off and no worse off than Aer Lingus staff engaged in maintenance and engineering work at that time …”
Later, Kearns J. stated:
“… the claimants are entitled to be treated as though they had never transferred to TEAM Aer Lingus, that they are entitled to all appropriate increments or benefits on the basis that they earned and achieved the same seniority by 1998 as those Aer Lingus employees who did not transfer, that they were on returning entitled to such recognition and are now entitled to compensation in lieu thereof if they have suffered financial loss as a consequence of not getting such recognition.”
As I have already stated, that finding was not in issue on the plaintiff’s appeal to the Supreme Court. The only issue was whether the plaintiffs’ rights consequent on that finding were in some way limited in time. The Supreme Court held that they were not.
Before applying the judgment of Kearns J. to the NDT Claimants I want to record the following reservations. I respectfully endorse the observations made by Kearns J. in his ex tempore judgment of 30th April, 2003 in which he reiterated a view he had expressed many times during the hearing that the King proceedings have more of the hallmarks of an industrial dispute than a court case and that the adjudication required called for the expertise of an industrial relations expert, not a High Court judge. Moreover, notwithstanding that I have carefully considered the evidence adduced, I do not profess to have acquired any real understanding of the complexity of grading, pay scales and other terms and conditions of employment or other aspects of industrial relations in Aer Lingus.
In essence, in my view, the finding of Kearns J. assimilates the position of a claimant returning from TEAM to Aer Lingus in 1998 to that of an engineer on an incremental salary scale who did not leave Aer Lingus in 1990. I am satisfied on the evidence that, in giving effect to those findings, Aer Lingus was correct in deciding that the appropriate comparator for an NDT Inspector who was on the Senior Supervisor pay scale was the Shift Controller Technical and that the appropriate comparator for an NDT Inspector who was on the Supervisor Aircraft Engineer pay scale was Shift Supervisor Technical. The specialist nature of the work of NDT Inspectors was recognised and rewarded by remunerating them on a Supervisor scale, notwithstanding that they did not exercise supervisory functions. That was the effect of the 1989 agreement. As regards the NDT Claimants, the effect of the September, 1998 agreement was that it changed the job title of the grades (Senior Supervisor and Supervisor Aircraft Engineer) to which they were linked for pay purposes.
While it is a fact that for approximately two decades up to 1998, the specialty of the Simulator Specialists had been recognised and rewarded on the same basis as that of the NDT Inspectors, by linkage to the Senior Supervisor and Supervisor Aircraft Engineer pay scales, the position of the Simulator Specialists changed in December, 1998. By negotiating the wholly different pay structure conditioned on altered working terms and conditions which was agreed in December, 1998, the Simulator Specialists broke their link to the Senior Supervisor and Supervisor Aircraft Engineer grade pay scales. However, the grading structure and incremental pay scales to which the NDT Inspectors were linked remained in being, although they had been revised by the September, 1998 agreement by the time the NDT Claimants’ secondment with TEAM ended. Therefore, the appropriate comparators for the NDT Claimants at that time, in my view, were the engineers formerly at Senior Supervisor and Supervisor Aircraft Engineer level, but now known by their new job titles in the Commuter division and, subsequently, according to Mr. McShane’s evidence, at Cork and Shannon airports.
Accordingly, with one qualification, I consider that the NDT Claimants have been paid the appropriate level of remuneration in accordance with the judgment of Kearns J. The qualification is that it would appear that the special agreement entered into with Mr. Webberley on 29th November, 1989 has not been honoured. This issue was not specifically addressed in argument and I do not propose making any definitive finding on it at this juncture. However, I suggest that, although the agreement was personal to Mr. Webberley, in order to give effect to the substance of the judgment of Kearns J. it should be honoured in relation to the period after Mr. Webberley’s secondment with TEAM ended.
Claims for damages for personal injuries
The Settlement Agreement provides, at Clause 6.2, as follows:
“The High Court shall, in the King proceedings, determine the issue between the parties as to whether the claims for damages for personal injuries being brought by the plaintiffs named in the Fifth Schedule hereto are maintainable having regard to the previous decision of the High Court in the King proceedings.”
The plaintiffs named in the Fifth Schedule are Pat Foley, Pat Gleeson, Brian Herbert, Paul Mahon, Pat Molloy, Mr. King and Mr. Webberley. I will refer to them collectively as the “PI Claimants”. The PI Claimants other than Mr. Herbert and Mr. Mahon are plaintiffs in the King proceedings. Mr. Herbert and Mr. Mahon are plaintiffs in the Byrne proceedings, which never got to the stage of delivery of defence or being set down for trial. All of the PI Claimants are claimants in the Barber proceedings.
Before addressing the issue identified in clause 6.2 of the Settlement Agreement, I consider it prudent to record that my understanding is that there is consensus that, if the court determines that the claims for damages for personal injuries are maintainable, those claims will be determined in the King proceedings, although the Settlement Agreement does not explicitly so state.
The starting point of consideration of this issue is to ascertain what is claimed in the pleadings in the King proceedings in relation to general damages and personal injuries. The claim of the plaintiffs in the King proceedings was formulated in an amended statement of claim delivered pursuant to leave of the court granted on the first day of the hearing, 5th March, 2002. In paragraph 14 it was pleaded that the plaintiffs had been occasioned “great mental upset and distress and interference with their ordinary employment (sic) of life”. Various matters were then alluded to: having been deprived of the opportunity to work; having been deprived of wages on which they depended to support themselves and their families; uncertainty created as to their future livelihood; and failure and refusal to honour and recognise their status as employees of Aer Lingus.
The amendments were contained in paragraphs 14A and 14B. In paragraph 14B the plaintiffs pleaded that they had, by reason of the matters pleaded in the preceding paragraph, suffered and that they continued to suffer, inter alia, loss of job satisfaction, upset, anxiety, fear, insecurity and distress”. There was no mention of personal injuries. In the preceding paragraph, paragraph 14A, in broad terms, the plaintiffs pleaded breaches of the agreements, representations and warranties concerning their secondment.
In the prayer for relief, the plaintiffs claimed damages for breach of contract, misrepresentation and/or breach of warranty. They did not claim damages for negligence. I think I should make it clear that, in determining this issue, I have attached no significance to the finding of Kearns J. in his judgment of 8th October, 2002, adverted to by counsel for the plaintiffs, that “the assurance contained in Mr. O’Neill’s letter of 30th April, 1990 was both a representation and a term of the agreement and that, insofar as it may be regarded as a representation, the defendants making it were under the duty of care alluded to in Hagan & Ors. v. ICI Chemicals and Polymers Limited (2002) I.R.L.R. 1-92”. That finding appears to be clearly within the express parameters of the elements of the statement of claim to which I have referred.
In February, 2002, within weeks of the commencement of the first hearing on 5th March, 2002, updated particulars in relation to the claims of the five sample plaintiffs were delivered. The common themes in the particulars were allegations that these plaintiffs had been betrayed, bullied and were under pressure resulting in mental upset and distress. Further, by reason of being deployed in jobs which were not commensurate with their skills and experience after secondment, they suffered psychological effects. While it was alleged that these plaintiffs had suffered bouts of depression and feelings of anxiety, it was not alleged that they had a psychological or a psychiatric injury or that they had required medical treatment.
The five sample plaintiffs testified before Kearns J. on 29th and 30th April, 2003. Counsel for Aer Lingus characterised their evidence as relating to “mental distress-type issues”, although in one case there was evidence of mild depression, but none of the evidence indicated injury to the extent of clinical psychiatric condition. That characterisation was not in dispute
By contrast, it was quite clear before the hearing before Kearns J. on 29th and 30th April, 2003 that the five PI Claimants who are plaintiffs in the King proceedings were alleging that they suffered from personal injuries as a result of wrongdoing on the part of Aer Lingus and were seeking damages for personal injuries. In four cases the relevant particulars were delivered in May and June, 2001 and in the fifth in March, 2003. All of the particulars have a common thread with the particulars delivered in relation to the five sample cases, in that in each there is an allegation of mental distress as a result of the plaintiffs’ treatment by Aer Lingus, anger, anxiety, worry, fear, panic attacks, loss of confidence and loss of self-esteem being specified. However, in each case it was also claimed that the relevant plaintiff suffered a psychological or a psychiatric injury as a result of the wrongdoing of Aer Lingus, stress, depression and clinical depression being variously specified. In each case it was alleged that the plaintiff required medical treatment for the condition and particulars of the treating physician, the diagnosis, and the medication or other treatment prescribed were given with varying degrees of detail. In one case it was alleged that the plaintiff had also suffered physical symptoms, abdominal and gastric symptoms. In a number of cases it was alleged that the plaintiff’s condition resulted in absence from work.
It is convenient at this stage to set out the position of the parties in relation to the issue. There is consensus that it was agreed that the points of principle decided in the five sample or test cases would be binding on all the parties. Where the parties diverge is that Aer Lingus contends that one of those points of principle was whether general damages were recoverable by the plaintiffs, irrespective of whether the claim related to damages for mental distress or damages for personal injuries. The position of Aer Lingus is that that point of principle was decided by Kearns J. on the basis that such damages were not recoverable and that all of the plaintiffs are bound by that decision, whether they are claiming merely for mental distress or are also claiming for psychological or psychiatric injury. The plaintiffs’ position, on the other hand, is that what was at issue before Kearns J. was entitlement to damages for mental distress only, that the issue of recoverability of damages for personal injuries was expressly reserved and that, accordingly, Kearns J. did not adjudicate on the claims for damages for personal injuries.
This Court was invited to determine the issue on the basis of the historical background as disclosed by the pleadings and judgments and the transcripts of the hearings on 29th and 30th April, 2003. That is a rather peculiar task. In my view, the issue is not one of res judicata, as contended on behalf of Aer Lingus: no court has ever adjudicated on the claims of the PI Claimants, whether arising from the King proceedings or the Byrne proceedings. If the claims for personal injuries of the PI Claimants are not maintainable it is because of an agreement between the parties. No evidence was adduced of that agreement and the court is left in the position of having to determine what was agreed on the basis of what transpired before Kearns J. on 29th and 30th April, 2003 by reference to the transcripts.
The court was invited to consider the submissions made by counsel at the opening of the proceedings on 29th April, 2003, the legal arguments advanced by both sides on the issue of general damages and the observations of Kearns J. in giving his ex tempore judgment. The court was also invited to draw inferences from exchanges between counsel and the judge and interjections made by the judge, as well as from silence on the part of the opposition and on the part of the judge on particular issues. Having regard to the unusual nature of the task, I consider it necessary to consider the transcripts at some length.
In identifying the issues which the court had to address on 29th April, 2004, counsel for Aer Lingus identified one issue as an issue of law as to whether damages for mental distress are recoverable on foot of a breach of contract (p. 22) and he clarified what he meant by damages for mental distress as “mental distress short of psychiatric injury” (p. 23). Later, when the logistics of the hearing were being discussed, Kearns J. intimated that he was going to deal with one case and do a computation on that case and then review the situation (p. 32). However, counsel for the plaintiffs queried whether that approach was possible, pointing out distinguishing features among the plaintiffs who were 55 in number at the time. Coincidentally, one of the distinctions he alluded to was the fact that there was a category called NDT Specialists. He also stated that there were a number of cases in which there were actual personal injuries, then nine or ten in number, aside from “any mental distress type case” arising from breach of contract (p. 33). In arguing that the claims of the PI Claimants are maintainable, their counsel laid particular emphasis on the fact that neither counsel for Aer Lingus nor the judge demurred in relation to the distinction which had been drawn between personal injuries, on the one hand, and mental distress, on the other hand.
Later that day, after the first of the plaintiffs had given his evidence, there were exchanges between counsel on both sides and Kearns J. as to whether other plaintiffs should be called. Ultimately, after Kearns J. had decided that a second witness should be called, counsel for the plaintiffs continued with the following submission in relation to the question of general damages (p. 94):
“There will be actual personal injuries in about nine of these cases. None of those cases are before the Court in the sense that none of those plaintiffs has given evidence yet. This happened this way because we sought to determine through the evidence of the five plaintiffs at the outset the general parameters of the case and left over the general damages issue. We came here this week to deal with the five cases and resolve those, not the nine or ten general damages claims … I just need to make that absolutely clear.”
Counsel then pointed out that he had questioned the previous witness in relation to “the issue of general damages for … the general turmoil and distress … loss of … self-esteem … ”. Kearns J. interjected to say that he would hear so many of the other of the sample or test plaintiffs who had separate entitlements and then stated (p. 95):
“When we have that out of the way, we will determine as a legal issue the entitlement or otherwise to general damages. If I rule against you on that, that will be the end of the matter.”
The four remaining sample plaintiffs testified on 29th and 30th April and one witness, Mr. McShane, was called on behalf of Aer Lingus. On 30th April at the close of the evidence Kearns J. heard legal submissions on, inter alia, the issue of general damages.
Having referred to paragraphs 14A and 14B of the amended statement of claim, counsel for the plaintiffs submitted that the general damages fell under two broad heads and that he was only addressing the first, namely, the claim for general damages in relation to distress caused to the plaintiffs as a result of uncertainty as to their status and position, deprivation of the opportunity to exercise their skills, and loss of job satisfaction (p. 122). He stated that a number of plaintiffs, he believed the number was nine, had actual personal injury claims for general damages on which there would be medical evidence. He submitted that the court was not concerned with that. Counsel for Aer Lingus intervened to indicate that his argument would be that the law in relation to recovery of damages was the same whether the claim related to mental distress or psychiatric injury, making the assumption that the claims in question related to psychiatric injury rather than physical injury. Counsel for the plaintiffs responded that the court did not know what the personal injury claims were because they had not been opened. The five claims which had been opened were what the court was concerned with and in none of those cases was there what counsel called “a conventional or classic claim for personal injury”. Kearns J. then stated (p. 123) as follows:
“We will deal with what is on the table at the moment and see how we get on.”
Counsel for the plaintiffs then went on to deal with the claim for general damages for the type of distress he had outlined. Counsel for Aer Lingus responded. In doing so, he referred the court to authorities in which liability of an employer for psychological or psychiatric injury to an employee was at issue (Fletcher v. Commissioners of Public Works [2003] 1 IR 465 and Johnson v. Unisys [2001] ICR 480) (p. 141). This court was invited to infer that Kearns J., when delivering his ex tempore judgment, was thinking of those cases. Particular emphasis was laid on the fact that at the hearing before Kearns J. counsel for the plaintiffs did not take issue with the arguments advanced by counsel for Aer Lingus before Kearns J. in his reply.
In his judgment, Kearns J. dealt with the question of general damages as follows (at p. 152):
“There is a clear line of authority going back hundreds of years to the effect that general damages are not recoverable in respect of breach of contract. It seems to me that Chief Justice Kennedy’s remarks whilst made in 1927 or 1928 still accurately reflect the general position of the law in Ireland. It would require a huge departure from that well-established jurisprudence to admit a claim for general damages in this case.
It is true to say that certain specific categories of contract claim have permitted of an award of general damages. Jarvis v. Swan Tours being a particular example where the whole subject matter of the contract, namely the provision of a suitable and enjoyable holiday, where the exact opposite was provided. Obviously that provided a situation where the court could consider some sort of award of general damages. Equally, Murphy v. Quality Homes was another case where a person required to live in an uninhabitable house over a winter was entitled to something for the discomfort, inconvenience and distress of that. But that is a very, very narrow category of cases and it seems to me it would represent a huge departure from existing law to widen the scope of general damages in a contract context to a claim of this nature.”
As I have stated, counsel for Aer Lingus invited the court to conclude that in that passage Kearns J. was determining that a claim in contract for damages for personal injury of a psychological or a psychiatric nature was not maintainable. I cannot see how I can draw that conclusion. Kearns J. was dealing with the five test cases before him. He decided that none of the sample plaintiffs could maintain a claim for general damages. That decision was not appealed and, accordingly, as regards those five plaintiffs it is res judicata. Moreover, in accordance with the agreement between the parties, the decision of Kearns J. is determinative as against the other plaintiffs in the King proceedings and the Byrne proceedings of claims advanced by them for general damages for mental distress.
However, it is quite clear from the transcripts of 29th and 30th April, 2003 that, far from there being agreement between the parties to the effect that the decision of Kearns J. on the issue of general damages would be determinative of claims for personal injuries, counsel for the plaintiffs made it absolutely clear that the claims for personal injuries, as distinct from the claims for mental distress, were not before the court. It was also made clear that it was intended to call medical evidence in relation to the claims for personal injuries in due course. My understanding of the basis on which Kearns J. proceeded to hear legal argument on 30th April, 2003 was that he was dealing with the five sample claims before him. That, it seems to me, is the only reasonable inference which can be drawn from his statement (at p. 123) which I have quoted above. On my reading of the transcript nothing which subsequently transpired altered that position. There is nothing in the observations of Kearns J. when dealing with the question of general damages which would suggest that he considered that he was dealing with any question other than the question raised by the five sample cases. Having said that, in my view, the crucial factor is that the transcripts clearly and unequivocally demonstrate that, as regards the personal injuries claims of the plaintiffs in the King proceedings, the plaintiffs were not in agreement with the stance of Aer Lingus, that the decision of Kearns J. on the question of general damages should be binding.
Accordingly, in my view, the personal injury claimants are not precluded by the decision of Kearns J. from prosecuting their claims.