Special Damages Issues
Cases
Greene v. Minister for Defence
[1998] 4 IR 464
Lavan J.
Lavan J.
3rd June, 1998
This case is one of a considerable number of actions maintained by serving and retired members of the Permanent Defence Forces claiming compensation for noise induced hearing loss and/or tinnitus. Gardiner v. Minister for Defence (Unreported, High Court, Johnson J., 13th March, 1998) refers to the Dáil Committee dealing with this matter as stating that 1,488 cases of this type have been dealt with to date. Of these, 1,405 have been settled without admission of liability. Of the balance, namely 83 cases, 51 were either withdrawn or dismissed. He therefore concluded that an award appeared to have been made in only 32 of those cases. He also notes that of those 32 cases no appeal was taken to the Supreme Court which was pursued to a judgment. I think it is fair to say that in Ireland actions for noise induced hearing loss and/or tinnitus were quite rare until the early 1990’s. I note from Dr. White’s “Irish Law of Damages” published in 1989, that there is in fact only one Supreme Court decision, namely, Horgan v. Cork County Council (Unreported, Supreme Court, 22nd April, 1982), in which a hearing injury was considered.
I think it is of some interest to draw a comparative assessment of what occurred in the United Kingdom. In Ochwat v. Watson Burton (Unreported, Queen’s Bench Division, 26th June, 1997), Smith J. gives a most informative and incisive history of noise deafness litigation and the development of compensation schemes in the United Kingdom. Concerning that history he has this to say:-
“It has been known in medical circles for at least 150 years that exposure to loud noise can damage the hearing. In the early 20th century some attempts were made to provide ear protectors to mitigate the effect of noise on the hearing of men exposed but there was very little progress. After the Second World War there was an increased medical and industrial interest in noise induced deafness and this provided an interest in the development of ear protectors. During the 1950’s several forms of protection became commercially available. Interest and public discussion increased and in 1963 the Ministry of Labour published a pamphlet entitled ‘Noise and the Worker’ which explained the risks of noise exposure and provided advice on noise reduction and the use of ear protectors. In 1972, the United Kingdom Government published a Code of Practice which provided more detailed guidance to employers on the measurement of noise, its reduction and the protection of their workers.
In that same year came the first report of a claim for damages for noise induced deafness: Berry v. Stone Manganese [1972] 1 Lloyd’s
Rep. 182. The plaintiff alleged exposure to harmful noise; the defendant denied liability but did not seek to argue that there was any date before which it could not have been expected to appreciate the risk of harm. The judge found for the plaintiff and awarded damages of £2,500 as the appropriate award for the whole of the plaintiff’s hearing disability due to noise.
During the next few years a trickle of cases went through the courts, contested only as to the quantum of damage. In retrospect, this was surprising because, of the thousands of men who were then suffering from noise induced deafness and were coming forward in large numbers to claim damages, a very large proportion must have been exposed to noise during the 1930’s, 1940’s and 1950’s. It was not until 1978 and the hearing of McGuinness v. Kirkstal Forge Ltd. (Unreported, Hodgson J., 1978) that an employer contended that he was not liable for any damaged caused before the date on which he ought as a reasonable employer to have appreciated the risks of noise damage and to have done something to protect his workers. In McGuinness v. Kirkstal Forge Ltd., Hodgson J. held that it was not until the publication of ‘Noise and the Worker’ in 1963, that an employer in the engineering industry ought to have had that knowledge. In the event he also found that the plaintiff’s hearing loss had not been caused by exposure to noise but was of constitutional origin. Thus no damage fell to be awarded and the judge did not have to grapple with the problem of how to assess damages for that part of the hearing disability caused by the post-1963 exposure.
However, the legal profession, insurers and trade unions had to grapple with the problem. It was hoped that a plaintiff would not recover for that part of the damage which had been caused before the date of guilty knowledge, which for most employers was assumed to be 1963. It was realised that there would be many thousands of noise-deafness claims to be dealt with during the next few years. These would be complex, time consuming and expensive. The Iron Trades Employers Mutual Insurance Association Limited (the Iron Trades), who insured many employers in the heavy engineering industry, entered into an agreement with the Amalgamated Society of Boiler Makers, Ship-wrights, Blacksmiths and Structural Workers, (the Boiler Makers Union) whereby the insurers would pay compensation according to an agreed scale. The first such agreement came into effect in January, 1980 and was renewed with some amendment in February, 1981.
In September, 1982, the Boiler Makers Union became dissatisfied with the scheme and withdrew. There was a perception that plaintiffs would do better by going to court than by settling under the scheme. A group of cases was prepared for trial and battle was joined in Newcastle before Mustill J. (as he then was) in Autumn, 1983. The case was reported as Thompson v. Smiths Shiprepairers [1984] 1 Q.B. 405. The plaintiffs were fitters and labourers who had worked in various ship yards in the north-east for many years, some going back into the 1930’s. They were suffering from varying degrees of noise-induced hearing loss and tinnitus. Mustill J. found that the employer’s date of guilty knowledge was 1963. Much of each plaintiff’s hearing loss had been caused before then and he was only to be compensated for the increase in his disability which could be attributed to the negligent exposure between the date of guilty knowledge and the date on which ear protectors had first been provided.
Mustill J. referred to the fact that it was not until the early 1970’s that any effective and systematic provision was made for the protection of persons employed in ship yards, although they had long been recognised as noisy places. Mustill J. stated that terms such as ‘deafness, hearing loss and damage to hearing’ were ‘not sufficiently precise’ for assessing the harm done, the extent thereof, and the appropriate compensation. He therefore decided to adopt the terminology proposed in the ‘Blue Book’, approved by the Councils of the British Association of Otalaryngologists and the British Society of Audiology. These definitions are contained at p. 413 of his judgment.
Mustill J. described the different methods of assessing hearing loss and in particular the technique used in schemes to compensate large numbers of sufferers. This technique was to use an average of hearing losses at selected frequencies. The United States introduced an average of 0.5, 1 and 2 Khz. A system known as the Coles/Worgan scheme was then devised, which took account of an average of 4 Khz, in addition to the lower frequencies. Other averages were also adopted in the United Kingdom, including the Department of Health and Social Security. Mustill J. referred to recent opinions which favoured an average of 1, 2 and 4 Khz, and formed the basis of the Blue Book. He felt it unnecessary to decide which of these methods was preferable.
Mustill J. determined that there was direct evidence that the defendants had actual knowledge of the risks from 1963 onwards, when they received the report of the Ministry of Labour, ‘Noise and the Worker’. However, actual knowledge could be inferred much earlier than 1963.
The problem, according to Mustill J., was identifying the date at which a reasonable employer would have recognised the risk of excessive noise in his premises, found a solution, adopted a solution, and put it into effect. He adopted 1963, the date of publication of the ‘Noise and the Worker’ report, as the dividing line.
Mustill J. was referred to a report of 1970, entitled ‘Hearing and Noise in the Industry’, by W. Burns and D.W. Robinson, which formed the basis for a set of ‘Tables for the Estimation of Noise-induced Hearing Loss’ (the ‘N.P.L. Tables’), a report of the National Physical Laboratory Acoustics of June, 1977. The formula adopted therein is described at pp. 425 to 426 of his judgment. The plaintiffs argued against reliance on the N.P.L. Tables. They claimed that they did not provide an accurate statistical representation of how a sample of the population was likely to react to excessive noise.
Mustill J. concluded that the N.P.L. Tables could not be rejected outright and decided to approach the case on the basis that the N.P.L. Tables were broadly reliable, citing the fact that they were the only comprehensive source of data available at that time. Furthermore, he decided that there was nothing ‘fundamentally unsound’ in the use of the N.P.L. Tables for retrospection, based on the evidence of an expert witness, warning, however, against the use of the statistical data in individual cases.
The solution adopted in the Blue Book regarding the relationship between impairment and disability was cited as a ‘practical and economic basis on which to administer schemes involving large numbers of claims’. Recognising that the actions were test cases, Mustill J. nonetheless stated that the ‘object of this judgment is not to devise a scheme which can readily be put into practice’. The validity of the Blue Book system having been put in issue, he decided that no simple solution had been established by the material before the court. The judgment proceeded to deal with apportionment of liability and the award of damages, before addressing the circumstances of each individual plaintiff in turn.
I note that this decision was not the subject of an appeal.”
Later in the said judgment, Smith J. further deals with the history of agreements between various trade unions and insurers as to how compensation should be made for hearing loss.
Noise legislation in Ireland
According to the report of the expert group, legislation was introduced in 1974, for industrial workers. This was replaced in 1990, by legislation covering all workers.
The Factories Act, 1955, set out requirements in relation to safety, health and welfare which were applicable in factories and industrial situations such as building sites and included enabling provisions for regulations. There were no provisions in relation to noise in the Act of 1955. In 1975, regulations on noise were made under the Act of 1955. These were the Factories (Noise) Regulations, 1975 and were therefore applicable in the same situations as the Act of 1955. These Regulations required that persons employed should not be exposed to sound pressure levels in excess of 90dB(A) unless either:-
“(a) the duration and level of exposure is controlled so that its cumulative effect is not likely to cause harm, or
(b) ear protection is provided.”
The Regulations of 1975 also required that barriers or warning notices be erected in areas where the noise level exceeded 90dB(A). In effect, these Regulations required employers to provide ear protection if the working environment had noise levels above 90dB(A). These Regulations were enforced by the former Industrial Inspectorate of the Department of Labour. While there was a general requirement in the Regulations of 1975 to control the duration and level of exposure so as to be unlikely to cause harm, the provision and use of ear protection was given equal weight with any other control method. Inspectors visiting noisy factories following the enactment of the Regulations of 1975 would recommend, inter alia, the provision of ear protection and encourage employees to use them, in particular if measurements indicated the level was above 90dB(A). The use of ear protection, ear plugs and ear muffs has increased since the Regulations of 1975 came into force.
The Safety, Health and Welfare Work Act, 1989, ushered in a prevention-based system covering all employees, in which hazard identification, risk assessment and preventive measures became the norm.
On the 1st July, 1990, the European Communities (Protection of Workers) (Exposure to Noise) Regulations, 1990, came into force. These Regulations implemented a European Communities Directive on Noise (86/188/EC). The Regulations of 1990 set out a comprehensive legal framework for a hearing conservation programme. They are accompanied by a guidance booklet and a leaflet, available from the Health and Safety Authority (1991 and 1992). The Regulations of 1990 require the following actions where exposure exceeds 85dB(A):-
1. Measure of noise levels.
2. Provide ear protectors and training in use.
3. Inform workers of the risk.
4. Make hearing checks available.
In addition, where exposure exceeds 90dB(A):-
1. Identify the cause of the problem.
2. Reduce the noise at source if possible.
3. Ensure that areas where noise exceeds 90dB(A) are clearly marked.
4. Ensure ear protectors are available and worn.
5. Workers must be informed of the potential damage to hearing and wear the protection provided.
As I have said, hearing loss cases were very rare in the Irish system. The first judgment of a hearing loss case similar to the case before me was that of Bastick v. Minister for Defence (Unreported, High Court, Barron J., 24th November, 1995). From in or about that time some 11,500 cases have been issued by serving and retired members of the Permanent Defence Forces against the defendants in this case. I also understand that this number is increasing at the rate of some 100 cases per week.
I have already referred to the fact that in 83 cases so far heard, 51 were withdrawn or dismissed and awards were made in 32 cases. Faced with this avalanche of claims, the Government acted by passing the Civil Liability (Assessment of Hearing Injury) Act, 1998 (“the Act of 1998”) which was signed into law by the President of Ireland on the 11th May, 1998.
The Act of 1998 in its preamble is stated to be:-
“An Act to provide for judicial notice to be taken of a report to the Minister for Health and Children by an expert hearing group which was published by the Department of Health and Children on the 9th day of April, 1998, to provide for courts to have regard to certain matters contained in that report in certain circumstances and to provide for connected matters.”
The Act of 1998 provides:-
“1. ‘hearing injury’ includes –
(a) hearing loss caused by injury which results in the deviation of an individual’s hearing, as measured by pure tone audiometery, from previous measurement, where available, of his or her uninjured hearing, or, where such measurement is not available, from that predicted as normal for his or her age, and
(b) tinnitus;
‘proceedings’, in relation to personal injuries, includes any application or claim for compensation;
‘the Report’ means the Report to the Minister for Health and Children by an Expert Hearing Group, which was published by the Department of Health and Children on the 9th day of April, 1998.
2. This Act shall apply to all proceedings before a court, whether commenced before or after the enactment of this Act.
3. Judicial notice shall be taken of the Report in all proceedings before a court claiming damages for personal injury arising from a hearing injury.
4.(1) In all proceedings claiming damages for personal injury arising from hearing loss, the courts shall, in determining the extent of the injuries suffered, have regard to Chapter 7 (Irish Hearing Disability Assessment System) of the Report and, in particular, to the matters set out in paragraph 1 (Summary) and Table 4 (Disability Percentage Age Correction Factor) to paragraph 7 (Age Related Hearing Loss Correction) of that Chapter, and the said paragraph 1 and Table 4 are, for convenience of reference, set out in Part I and Part II, respectively, of the Schedule to this Act.
(2) In all proceedings claiming damages for personal injury arising from tinnitus, the courts shall, in determining the extent of the injuries suffered, have regard to the classification method contained in paragraph 9 (Tinnitus) of Chapter 7 (Irish Hearing Disability Assessment System) of the Report.
5.(1) This Act may be cited as the Civil Liability (Assessment of Hearing Injury) Act, 1998.
(2) This Act shall come into operation on the day immediately following its enactment.”
Part I of the Schedule to the Act of 1998 contains Chapter 7.1 of the Report, which provides a formula to assess hearing disability, and Part II of the Schedule provides for a table dealing with disability percentage age correction factor.
The Act of 1998 refers to a report entitled “Hearing Disability Assessment – Report of the Expert Hearing Group” published on the 9th April, 1998 (“the Report”).
The terms of reference of that group were that in November, 1997, the Department of Health and Children established an expert group to examine and make recommendations on an appropriate system and criteria for the assessment of hearing disability arising from hearing loss, with particular reference to noise induced hearing loss. The group consisted of eight doctors who were experts in their field of practice.
The group employed the World Health Organisation Definition of Impairment and Disability. The World Health Organisation defines impairment as any loss or abnormality of psychological, physiological or anatomical structure or function. A hearing impairment, therefore, represents evidence of disorder of the organs of hearing.
The World Health Organisation defines disability as any restriction or lack of ability to perform an activity in a manner within the range considered normal for a human being. A hearing disability, therefore, is the inability to hear everyday sounds in either quiet or noisy backgrounds, in a manner that is considered to be normal for humans.
The expert group approached its task in the following manner:-
1. An extensive review of the literature was carried out.
2. The systems of assessment of hearing disability used in other countries were documented and studied.
3. Every consultant otolaryngologist in practice in the country was contacted by letter, requesting details of their use of hearing disability assessment systems and their views on the issue. This was followed up by meetings as required.
4. The group met with a number of individuals with relevant areas of expertise or interest, i.e. a representative of the faculty of occupational medicine, the Director, Medical Corps of the Defence Forces, the Chief Medical Advisor to the Department of Social Welfare and representatives of the Permanent Defence Forces Ordinary Ranks Representative Association (P.D.F.O.R.R..A.).
5. Internationally recognised experts on hearing assessments were identified and their advice obtained. The group met with Professor P.W. Alberti, General Secretary of the International Federation of Otorhinolaryngological Societies and Professor of Otolaryngology, University of Toronto, Professor Mark Lutman, Professor of Otolaryngology, Institute of Sound and Vibration Research, University of Southampton and Professor R.R.A. Coles, Institute of Hearing Research, Medical Research Council, University of Nottingham.
The expert group based each decision in developing the Irish hearing disability assessment scale on published and scientific evidence.
The Report outlines the pathophysiology of noise induced hearing loss. It describes European legislation in the field of hearing protection and methods of screening for hearing loss. The difference between screening for hearing loss and the diagnosis of hearing impairment is clarified. The standards for clinical and audiological diagnosis of hearing loss are described. Hearing disability assessment methods from a number of other countries are documented. The proposed Irish scheme for assessment of hearing disability is described, and the scientific basis for its elements discussed. Recommendations for diagnostic testing of hearing impairment and assessment of hearing disability are made.
The Report is extensive and deals with hearing disability, age related hearing loss and noise induced hearing loss. It traces the development of noise legislation in Ireland, commencing with the Factories Act, 1955 and legislation introduced in 1974. It also referred to the noise regulations introduced in 1990, being the European Communities (Protection of Workers) (Exposure to Noise) Regulations, 1990, which came into force on the 1st July, 1990. The Report is extensive and comparative and sets out the basis for establishing the formula for assessing hearing disability which is incorporated in Part I of the Schedule to the Act of 1998.
Following the issue of the above Report, a group of doctors involved in appearing for litigants in a variety of types of personal injury actions came together and prepared their report, which for convenience, I refer to as the “Blue Book”.
On foot of views expressed therein, the plaintiff has raised a number of issues of unfairness in the approach adopted by the expert group.
The plaintiff’s case came on for hearing in the High Court the day following the coming into force of the Act of 1998. This case and a number of other cases were adjourned for one week to enable the litigants and their legal advisors to consider the Act of 1998. The Act of 1998 has not been challenged by this plaintiff.
In this case, the plaintiff claims damages for noise induced hearing injury which he claims to have suffered in the course of his employment with the Defence Forces between 1956 and 1996. He claims the injury was caused by the negligence and breach of duty of the defendants, their servants or agents, in particular by their failure to furnish the plaintiff with adequate hearing protection and their lack of compliance with their own internal regulations and safety rules. The defendants delivered a defence denying negligence, invoking the Statute of Limitations, 1957 and 1991, and claiming contributory negligence. The plaintiff’s reply denied contributory negligence and denied that the action was barred by the Statute of Limitations 1957 and 1991.
Since the commencement of the proceedings, the Civil Liability (Assessment of Hearing Injury) Act, 1998 was enacted. A booklet was also published by the Department of Health and Children on the 9th April, 1998, entitled “Hearing Disability Assessment” (the “Green Book”). The defendants subsequently amended their defence and claimed that any entitlement to damages must be calculated in accordance with the Act of 1998, unless there were substantial grounds to show this formula would render an injustice to the plaintiff. The defendants further submit that no such substantial grounds exist in this case. The plaintiff, in the reply, denied that the Court was bound to find substantial grounds in order to avoid the application of the statutory formula in the Act of 1998. In the alternative, the plaintiff claims that such substantial grounds exist in this case. The plaintiff further submits that the relationship alleged to exist between the amount of damages for total deafness and the amount of the plaintiff’s disability is inappropriate as a means of assessing damages in this case.
The plaintiff is a 59 year old retired member of the Permanent Defence Forces. He was born on the 3rd May, 1939. In 1956, he joined the Forsaà Cosanta Ãitiúil and remained a member until 1972. He served in a number of non-combatant roles during that time.
In 1972, he transferred into the Permanent Defence Forces. From 1972 until 1996, he was generally based at Custume Barracks, Athlone. During the period 1972 to 1978, he was an expert marksman and served upon his battalion shooting team. This involved the extensive use of the F.N. rifle five days a week for some six months in each year during that period. He was not required to carry out any further duties at that time. I accept his evidence as to the extent of these gunnery exercises and the amount of ammunition which was used therein.
Some time between 1977 and 1978, he was transferred to duties as a store-man at the aforesaid military barracks. He served in this capacity until his retirement. He took early voluntary retirement at that time.
During the course of his 18 years as a store-man, he was engaged in duties dealing with delft, cutlery, bed linen and similar matters. He worked on a daily basis from 8.30 a.m. to 4.30 p.m. He received 21 days annual holidays and once each year he was engaged in range training. He was also assigned guard duty once every week or two weeks but, as I understand matters, this did not entail the use of firearms. Each annual range practice involved between seven and ten days rifle practice.
From the time the plaintiff entered the Permanent Defence Forces until 1993, he attended for medical care before different army doctors. He had no problem with deafness or tinnitus up to that time, nor did he ever make a complaint in relation to either matter to any person.
On the 12th March, 1993, the plaintiff attended before Colonel Collins of the Army Medical Corps for a medical problem unrelated to this case. The plaintiff claims that he had no annual medical for some years prior to that date, but his LA30 does not seem to bear this out as there are entries prior to this date in 1993 and 1992. Colonel Collins carried out a full medical examination of the plaintiff on this date and reported, amongst other findings, a loss of 40 decibels at 4,000 Hz. in the right ear. One of the striking features of this case is that up to that date the plaintiff never considered that he had any problem with his hearing.
The plaintiff gave evidence as to the non-use of ear protectors for some years during his service and as to the inadequate type of protectors subsequently provided. In this regard I accept his evidence.
It is uncontroverted that as of the 12th March, 1993, the plaintiff had the loss of this 40 decibel level at 4,000 Hz.
The two real issues in this case are:-
1. what level of hearing disability does this entail, and
2. does the plaintiff suffer from tinnitus?
The plaintiff is a pleasant 59 year old retired person, who enjoys his retirement as he is perfectly entitled to do. I regret to say that I found his evidence unconvincing as to the problems of noise induced hearing loss and tinnitus following his medical examination in 1993. His evidence in relation to these matters was unconvincing and especially so during cross-examination. I found him to be extremely uncomfortable in relation to his cross-examination and generally unable or unwilling to respond frankly to the questions that were put to him by counsel for the defendants. I found the plaintiff’s wife, Mrs. Patricia Greene to be a very pleasant person, who likewise was unconvincing as to the onset and symptoms of noise induced hearing loss and tinnitus. She likewise appeared very uncomfortable in the witness box.
The plaintiff called Mr. Niall Lydon, Ms. Judy Nugent, Mr. George Fennell and Mr. Ben W. Lawton in support of his case. I accept their evidence.
The plaintiff also called Mr. Savage-Jones, an ear, nose and throat consultant. He gave evidence in relation to his view of the Green Book (to which I shall return later) and also in relation to the plaintiff’s medical history.
Mr. Savage-Jones saw the plaintiff for the first time on the 15th October, 1997. His history included the plaintiff’s time in the Permanent Defence Forces and the types of weapons with which he trained. At that time the plaintiff’s principal symptoms were those of difficulty in hearing, particularly in the presence of background noise and group conversation. The plaintiff also experienced tinnitus, which he described as being right unilateral occurring several timesper week with a duration of between two and five hours. The plaintiff considered the intensity of his tinnitus to be moderate and it did not interfere with his sleep pattern.
As will be seen from the transcript, the evidence in relation to the history taken from the plaintiff was minimal. It did not include the dates when the plaintiff first complained of hearing loss and/or tinnitus.
This witness then introduced an audiogram taken on the 15th October, 1997. According to the witness, this audiogram was performed by a Ms. McKinnon, a senior technician in the Regional Department of Tullamore Hospital. As will be seen from the photostat audiogram, Exhibit 1, it is unsigned.
This audiogram seems to me of vital importance in relation to the plaintiff’s specific complaints and in relation to the general attack on the Green Book.
It is a standard audiogram with recorded frequencies between 1 to 5 and 8 Khz. It is to be distinguished from the audiogram prepared by Ms. Judy Nugent and relied upon by Mr. Fennell. The latter audiogram contains frequencies at 750, 1,500 3,000 and 6,000 Khz.
Taking Mr. Savage-Jones’ evidence, on its face value, he is of opinion that the plaintiff has a 2% hearing loss applying the standards of the “Black Book” which is in use in the United Kingdom. It is a matter of total coincidence that this figure accords with the assessment of hearing loss put forward by the defendants applying the formula used in the Green Book.
I think it is of some marked significance that the plaintiff was referred to Mr. Savage-Jones by his solicitor and not by his general practitioner.
The audiograms relied upon by Ms. Nugent and Mr. Fennell were two, one prepared by Ms. Nugent and a photostatic audiometric diagram from Hinchcliffe’s book on Hearing. They contained, without explanation, findings at half octave steps which appear to be unusual in standard 150 audiogram charts.
During the course of the evidence it became clear that the plaintiff wished to allege that the formula was unfair and, secondly, that the provision of a fence at 20 decibels was unfair, and, that the make up of the expert group was not representative. Evidence to that effect was adduced by Ms. Nugent, Mr. George Fennell and Mr. Savage-Jones.
The defendants called Professor Peter Alberti who has a world-wide reputation in his field and who was consulted by the expert group, Professor Michael Walsh, Professor of Otolaryngology in the College of Surgeons, Dublin, who is responsible for the training of surgeons in the speciality in Ireland and is also a member of the United Kingdom Surgical Advisory Committee in ear, nose and throat surgery, Professor Alexander Blayney, a fellow of the Royal College of Surgeons, London, and of the Ear, Nose and Throat Surgeons of Ireland and General Surgery. He also has a Master’s Degree in surgery from the National University of Ireland. He is a consultant at the Mater Hospital and the Children’s Hospital Temple Street, Dublin. He practises in the field of ear, nose and throat but with a specific interest in otology, in other words, the diseases in and surgery of the ear.
Professor Alberti expressed his opinion of the systems of measurement and assessment set out in the Report as follows:-
“In general there have been several efforts at this type of exercise. It is a very difficult task and I think this has been done in a workman like way. There is a good regard for previous efforts and attempts of other schemes that have been used. I think this is an expert group that has been put together. It is made up of experts to provide an expertise. They have, however, as I read it, taken counsel from a variety of interested parties about what should go into it and I think it is about as good as you can get at the present time. It strikes me as pretty balanced, in that I believe that both sides could argue against it as being too lenient on both situations. That usually to me is the sign of a good compromise. They are compromises because any scheme of rating hearing disability based on pure tones is a surrogate for hearing.”
When asked to compare the Report with other international schemes, he replied:-
“My sense is that it favours the people who are claiming. I say this for two reasons; many schemes stop at 3,000 hertz, they do not include 4,000 hertz in the equation. They use one or the other. They do not use both. They use one or the other but 4,000 is more likely to be worse hearing than 3,000. The second reason is that the age correction is little and comes in late where others [schemes] put in age corrections much earlier. The third is that the point at which compensation begins at 20 decibels is lower than several that are out in the field. So when you put those three together I think it is leaning over backwards in favour of the claimant.”
When asked why some systems cut off at 3,000 hertz he replied:-
“Well the discussion revolves around the ability to hear speech in a background of noise. It has been generally accepted that in perfectly quiet surroundings one can make out enough of the sound of speech between 500 and 2,000 to cope. So, to take into account background noise, some higher frequency hearing is required and the scientific basis suggest that there is more power in 3,000 than in 4,000, although 4,000 has some power as well. If 4,000 is used then it entrains the 3,000 frequency with it. So the American Academy, we in Canada, and several British schemes were based on 3,000 [as having] the top frequency.”
When asked to deal with a system which increases from 3,000 to 8,000 Hz he replied:-
“I do not know of a system that uses 8,000. It mixes in ageing very badly. The reason for testing 8,000, I believe that the Green Book calls for hearing testing at a wide range of frequency, 250 to 8,000. As I understand it or the reason I would think that that it is there is because hearing testing is done for many purposes, not just assessing pensions. It is done for diagnosis and so low frequency hearing is tested to catch conductive hearing losses. High frequency hearing loss is tested to see the early signs of ageing, but also in noise cases, punitive noise cases to see if there is a notch, because we have heard that the notch is usually at 4 Khz but it may be at 3 or 6 but implicit in a notch is a recovery. If the test is not done to see if there is a recovery it makes it very difficult to distinguish between a hearing loss from noise and other reasons, but the 8,000 Hz has little practical importance in the comprehension of speech in a noisy place. It may add little quality to the hearing of music, it may add quality to speech but for practical purposes it is being tested and found unnecessary.”
When asked to explain what a person does not hear between the 3,00 and 8,000 band he replied:-
“That is a pretty broad question but certainly it would cut off song birds, they [people] may have difficulty with some of the overtones of music. [People] will hear music as if it was coming out of a not so good AM radio rather than FM radio.”
When asked to deal with the criticisms of the scheme in the exclusion of 3,000 and 6,000 and the inclusion of 500 at the bottom of the scale the witness replied as follows:-
“The figures on the audiogram are octave steps. In fact the units accurately are 256, 512 and 1,024 but for simplicity they have become 250, 500 and 1,000, moving up the piano now from middle C up in octave steps and it is no accident that the audiogram [before your Lordship] has no 3,000 and no 6,000 put in there because they are the half-octave steps. The audiogram is labelled usually in octave steps.”
Having regard to Professor Alberti’s entire evidence, of which the foregoing is merely illustrative, I am satisfied that I should accept his opinion on the Green Book and its formula as being reasonable.
Professor Michael Walsh gave evidence as being a member of the expert group aforesaid. He confirmed that he was appointed by the Minister for Health and that the only instruction given to the group was the construction of a formula that was suitable for assessing hearing disability. He explained how the expert group operated and obtained its information.
As to tinnitus, he explains as follows:-
“This is probably the most difficult part of the whole exercise really because tinnitus is such a difficult thing to deal with scientifically. Basically the classification is on the basis of our clinical experience. Your assessment of tinnitus is always a one to one with the patient, an individual, and how it affects their lifestyle. The patients we see with hearing loss who complain of tinnitus, in a severe manner that distracts them, upsets their whole life, is extremely rare. Often when it comes out at the beginning it is very distressing and after a period of time [people] usually adapt to it through a process called habituation, where the brain suppresses the effect of the tinnitus.”
In addition, he explained the basis for the conversion of categories of tinnitus into specific disability percentages. He further explained the reason for the selection of the fence at 20 decibels. This he explained that:-
“Studies showed the majority of people who had a hearing threshold of 20 decibels or less had no hearing difficulties in the presence of background noise. So it is really based on the fact most other formula have higher fences 25 up to 35 and some of them even up to 40 and 50.”
In his view, the fence is really on the borderline of the pure tone audiogram of normality. Professor Blayney gave evidence of his involvement in cases coming before the courts arising out of claims for hearing loss by members of the Permanent Defence Forces. He was not on the expert group, but his views were sought. When asked his view of the fairness or otherwise of the system of assessment set out in the Green Book to grading these claims, he was of the view that this was a fair assessment. He continued:-
“It is an extremely difficult thing to produce a mathematical formula that deals specifically with a human body because the human body, its physiology does not lend itself to mathematical abstraction and as we are all aware, over the past few years there have been a number of formula and different types of assessment from the [United] States and United Kingdom presented in these courts and there have been faults and failings in all of these. So it would be facile to say this is an absolutely perfect answer to all our problems, it is not. As I say it is impossible to produce an absolutely perfect mathematical assessment but I do think that it certainly represents a serious massive effort over a three month period to try to come to grasp with the difficult subject and to try to produce a formula that makes sense in this domain. So in that way, I think it has been successful overall.”
As to the frequencies used generally, the witness expressed the view that the most important frequency for speech is 2,000 Hz. He goes on to say that this is then aided and abetted by findings at 500 Hz and 1,000 Hz. These he identified as the most important three frequencies. Whilst one sees a spectrum of frequencies that range from 1 to 8,000, speech is basically centred between 500 and 2,000 Hz.
Under cross-examination and dealing with the question of tinnitus, the witness was of the view:-
“I said in audiological terms, and probably even rare in tinnitus terms again having worked on tinnitus, having been involved in trials in Oxford in tinnitus, it is an extremely subjective system. The number of patients with excruciating incapacitating tinnitus, I would probably see one per annum in my practice, and I am interested in that area. So that you know, I think that if a particular individual has a track record of a major problem with that symptom then they should be compensated, but this goes with a time tried history. They cannot just appear with excruciating tinnitus. They should, by the time they come to court, have been through the entire panacea of investigation and treatments.”
He went on to say:-
“It is my feeling and certainly my opinion from clinical practice over as many years as Professor Walsh has mentioned that the number of individuals presenting with distractible tinnitus is very small.”
The witness also distinguished between the army regulations and their purpose and the contents of the expert group Report. He concluded by describing the latter as a massive effort.
“I think it has been extremely well done and I do not think it can necessarily be improved on bar one or two faults or failings, minor inadequacies which may need to be adjusted are certainly taken into consideration when specific cases are presented to the court.”
The last witness called on behalf of the defendants was Colonel Maurice Collins. He is the Director of the Army Medical Corps. He was called to explain the operation and reason for the army regulations in the hearing field. He also gave evidence concerning the plaintiff’s attendance for examination on the 12th March, 1993. He does not have any recollection of a complaint of tinnitus. However, he is certain that, were there such a complaint, he would have noted it. I accept his explanation as to his standard practice on examination of any of his patients, and likewise I accept that he would not withhold any information from his patients. I am satisfied I can rely on his evidence in relation to the examination on that date.
Submissions (on behalf of the defendants)
Section 3
The plaintiff does not dispute the defendants’ interpretation of”judicial notice”, as it appears in s. 3 of the Act of 1998.
The defendants’ submission defined judicial notice as follows:-
“Judicial notice refers to facts, which a judge can be called upon to receive, and to act upon, either from his general knowledge of them, or from enquiries to be made by himself for his own information from sources to which it is proper for him to refer:- Commonwealth Shipping Representative v. P & O Branch Service [1923] A.C. 191 at p. 212 (House of Lords,per Sumner L.J.) Judicial notice is therefore a means of establishing rather than providing a fact . . . It is thus unnecessary for any party to lead evidence to establish the findings of the expert group as contained in its report in any such proceedings.
The court is entitled to act upon such facts as if they were given in evidence before the court by a competent witness in the ordinary way. That does not, of course, mean that the court is bound to accept that evidence, any more than it is bound to accept any other evidence which may be put before it. The doctrine of judicial notice concerns itself with the method of establishing facts, rather than the weighing of conflicting evidence.”
Section 4
The defendants submit that the interpretation of s. 3 of the Act of 1998, described above requires that s. 4 must be given an independent meaning and effect. The defendants state that “it is a fundamental principle of the construction of statutes that provisions are presumed not to be included in vain, or for no purpose.” They deduce that s. 4 must therefore “mean something more than that the contents of the Report (including the formula contained therein) are to be evidence to be weighed in the balance in any proceedings”.
The requirement in s. 4 of the Act of 1998, to have regard to the statutory formula “in determining the extent of the injuries suffered”, is interpreted by the defendants as meaning that “regard has to be had not merely to the fact that one injury is defined by the statutory formula as being more serious than another, but also to the fact that a particular mathematical proportionality is expressed as and between two such injuries”. “The statutory formula does not merely rank injuries in terms of seriousness” but rather “allocates to each level of injury a percentage loss and thus establishes a direct proportionality between each injury”.
According to the defendants, the word “shall” must “be viewed and interpreted in the context in which [it] . . . appear[s] in the particular statute”. The use of the word “shall” in the context of “having regard to” is submitted to have the effect of requiring the court to give “very serious consideration” to the formula, while falling short of a requirement to apply it.
The defendants therefore conclude that s. 4 of the Act of 1998 requires the court to “pay special attention to the statutory formula”. They submit that “to suggest that the statutory formula has no greater weight than any other evidence put before the court would . . . be to render s. 4 of no effect”. “The statutory formula would, as part of the Report, be a matter which the court would be entitled to take into account under s. 3 in any event. Section 4 must therefore mean that the court is required to pay greater regard to the statutory formula than simply taking it into account.”
In the submission of the defendants, the court should have regard to the statutory formula by applying in it all cases, unless it can be established that the formula would give rise to a “substantially unfair result”.
“Furthermore, given that the result of the application of the statutory formula is to produce a percentage figure, it is submitted that the court should (again, in the absence of special circumstances) have regard to the fact that the formula is expressed as a percentage and, therefore, award the appropriate percentage of the damages which the court would consider applicable in the case of total deafness (or 100% loss). The Act of 1998 does not require the court to apply the formula at all, or by means of a strict application of the percentage test. However the Act does require the court to have regard to that formula, and it is submitted the way in which the court should so have regard is by applying the formula . . . in all cases where it cannot be shown that there are strong reasons for departing from it.”
“The General Attack upon the Act”
The defendants submit that the evidence of Professor Alberti, Professor Walsh and Mr. Blayney make it clear that “the statutory formula is not merely a reasonable, but a particularly good, attempt at what is a difficult task”. They further submit that “the evidence supports the fact that the formula devised by the expert group is, if anything, more favourable than other such formulae to persons suffering the particular type of hearing loss encountered in army deafness claims”. It is submitted on behalf of the defendants, that “the range adopted in the statutory formula has been shown to be the appropriate range” and that “the selection of the particular points within that range for use in the calculation have also been shown to be ideal”.
The defendants claim there has not been effective evidence to counter either the contentions of Professor Alberti that the formula gives a very good fit with actual hearing loss as perceived by the individual, nor the contentions of Professor Alberti and Mr. Blayney that “normality is a range of hearing rather than a specific point”.On the latter issue, the defendants submit that “some form of low fence is required to have regard to the fact that persons can properly be said to have normal hearing while, at the same time, having hearing which is somewhat worse than persons who have precisely the median hearing for their age”. They further submit that the evidence established the formula as a fair and reasonable one, while accepting there may be a small minority of cases requiring exceptions.
The defendants urge the court to find that the statutory formula was established by cogent evidence to be a “fair and reasonable exercise by the Oireachtas of its judgment based on expert assistance as to the appropriate scale for the assessment of percentage hearing loss”.
Application to the facts of the case
Having accepted that there could be an extremely limited number of cases where an individual could show the statutory formula was unfair to them, the defendants submit that this case falls far short of such circumstances. The defendants do accept that an individual may have a loss which does not amount to a disability and yet be entitled to some damages. However they urge that unless such cases fall within the exceptional circumstances already mentioned, the damages should be nominal. In this case, the plaintiff has a scoring loss under the statutory formula of 2% and the defendants submit that he should obtain nominal damages only. “Exceptions to the application of that rule should, it is submitted, only arise when there is clear and persuasive evidence that the statutory formula would operate unfairly in the unusual circumstances of a particular plaintiff”.
Submissions (on behalf of the plaintiff)
Section 4
The plaintiff submits that “the court must accept s. 4 of the Act of 1998 as it is enacted, and not as the defendants would wish it to have been enacted”. If the legislature intended the formula to have the degree of evidential weight suggested by the defendants, the Act of 1998 should have provided accordingly. Furthermore, in the submission of the plaintiff, the interpretation of s. 4 advanced by the defendants would “amount to a very serious interference and a challenge to the independence of the judiciary and of the courts as guaranteed by the Constitution, in that it would seek to direct the courts to treat one item of evidence with greater weight than another and with retrospective effect, and in a manner which almost certainly would adversely affect the rights of the plaintiffs, including the plaintiff in this case”.
“Have Regard To”
In R. v. Police Board (ex p. Madden ) [1983] 1 W.L.R. 447, McNeill J. was obliged to consider the meaning of the term “shall have regard to” in the context of disciplinary charges. He concluded that it meant no more than that the board was required to take the guidance of the Secretary of State into account, but was not obliged to comply with it.
In Ishak v. Thowfeek [1968] 1 W.L.R. 1718, Pearson L.J. stated that the requirements to “have regard to” certain matters means that they must be taken into account, considered and given due weight, but the charitable board in question retained an ultimate discretion in the exercise of their functions.
The decision of Somers J. in R. v. C.D. [1976] 1 N.Z.L.R. 436, described the phrase “shall have regard to” as not affecting or limiting the discretion of the court. He stated that the matters referred to in the legislation were to be considered, but may be rejected or given such weight as was suitable.
“Hearing Injury”
Section 4(2) of the Act of 1998 refers to “hearing injury”,which is defined in s. 1 of the Act of 1998 as including hearing loss and tinnitus. The same definition appears in the Green Book which also contains a definition of “hearing disability”.
The plaintiff submits that the terms “hearing injury” and”hearing disability” are two separate and distinct concepts. He claims that it would be possible to have a hearing injury, but at the same time not suffer from a hearing disability. He submits that such a person would be entitled to an award of damages, irrespective of his failure to score the percentage disability under the statutory formula.
Assessment of damages
The plaintiff submits that the court is obliged to consider the injury in a wider context than the Green Book formula.
In Gardiner v. Minister for Defence (Unreported, High Court, 13th March, 1998), Johnson J. quoted with approval the decision of Barron J. in Bastick v. Minister for Defence (Unreported, High Court, 24th November, 1995) as follows:-
“. . . the question is, is the condition of the hearing such that it affects the quality of life . . . it also seems to me to be important that there are no absolute standards [. . .] The other thing . . . is if you have no handicap it does not mean your hearing is perfect . . .”
Johnson J. stated that each case:-
“. . . must be tried individually. Each plaintiff individually assessed, the evidence of each witness individually assessed and the grounds upon which each witness bases his opinions, particularly the expert ones, individually assessed.”
The effect of the Act of 1998
The plaintiff submits that the Act of 1998 does not change the law as it was described in those decisions, but has the following consequences:-
1. It provides for the court to treat the relevant sections of the Green Book as evidence, as if they had been given orally under oath by the authors.
2. It provides that the court must consider the formula in the Green Book and then decide whether to use this formula to determine the extent of the disability, or whether to consider some other formula, at all times leaving this determination to the court’s discretion.
3. The court remains free to attach whatever weight it wishes to the plaintiff’s score, according to whichever formula the court decides to apply. Alternatively, the court is free to ignore such results altogether.
4. It remains the duty of the court to assess the plaintiff’s”hearing injury” irrespective of any “hearing disability” he may or may not have.
The challenge to the statutory formulae in the Act of 1998
1. The inclusion of 500 Hz in the calculation of a hearing disability is criticised by Mr. Lawton and Ms. Judy Nugent and the plaintiff claims that, as it is a low frequency which is almost never damaged by noise, it has the effect of unfairly weighting the overall result in favour of the defendants.
2. The exclusion of 3,000 Hz. from the calculation was also criticised by expert witnesses, as it is an important frequency which is often damaged by noise. The plaintiff disputes that such a calculation could be deemed accurate, as it fails to take into account this important frequency. Other systems of calculating hearing disability and the systems adopted in many other countries do take account of the 3,000 Hz. frequency.
3. The plaintiff submits that the attempt to impose the Green Book formula as a sole criterion, creates a “two-tier ‘hearing disability’ assessment system”, one to be applied by the courts, and another for the workplace and the Defence Forces.
4. The inclusion of a low fence of 20 dB is challenged as being”arbitrary and without logic”.
5. The treatment of the subject of tinnitus in the Green Book is claimed to have been severely criticised by many medical specialists, and it is claimed that no other country has dealt with the issue in a similar manner. All the expert witnesses are claimed to have supported the notion that the assessment of the effects of tinnitus must be done on an individual basis, and not by reference to a percentage disability.
6. The medical experts were agreed that an assessment of “hearing injury” must be dealt with separately from “hearing disability” or tinnitus and could only be determined by comparing the individual’s hearing to what it ought to be for their age.
Application to the facts of the case
The defendants have admitted that the plaintiff suffered a noise induced hearing injury and tinnitus as a consequence of negligence and breach of duty on their part. The pitch matching test indicates that the tinnitus equates with 6,000 Hz. which, they claim, confirms that the plaintiff does actually suffer from noise induced tinnitus. This has not been challenged by the defendants.
The hearing loss and tinnitus register as a hearing disability to the extent of between 2% and 3%, to which might be added another 2% or 6% for tinnitus in the event that the court applied the Green Book.
The plaintiff claims to suffer a wide range of problems and inconveniences associated with his hearing loss and tinnitus, which are permanent injuries.
The defendants concede that a person who does have a loss not amounting to a disability, is entitled to damages. The plaintiff submits that the court is obliged to assess appropriate damages, taking into account the pain and suffering of the plaintiff to date and in the future. He submits that these damages should be significant, and the fact that the loss registers on the Green Book formula should only serve to increase the damages further.
The plaintiff submits that the court should have regard to the fact that the damage was suffered over a lengthy period of time, during which the defendants were in breach of their own Safety Rules and Regulations. The plaintiff claims an entitlement to compensation for the worry and anxiety caused by the proceedings, wherein the admission of liability was made only moments before the hearing commenced, in spite of the overwhelming evidence of negligence.
Having regard to the submissions, I intend firstly to address the argument put forward as to the applicability of the Act of 1998.
Section 4 of the Act of 1998 states that the . . . “courts shall . . . have regard to . . .” the contents of the Green Book. The submissions of the plaintiff and the defendants diverge sharply as regards the interpretation of this phrase.
The defendants submit that the court is required to give “very serious consideration” and “pay special attention” to the statutory formula and they contend that the court must “pay greater regard to the statutory formula than simply taking it into account”.While the defendants claim the consideration required to be given to the formula “falls short” of a requirement to apply it, they do state that the means by which the court should have regard to the formula is by applying it in all cases, unless there are “strong reasons” to show that a “substantially unfair result” would ensue.
The plaintiff invoked judicial support in the United Kingdom and New Zealand in favour of an interpretation of the phrase “shall have regard to”, which entailed merely taking the formula into account, while permitting the court to retain an ultimate discretion. It is noteworthy that two of the decisions cited in support of the plaintiff’s contentions ( R. v. Police Board (ex p. Madden) [1983] 1 W.L.R. 447 and Ishak v. Thowfeek [1968] 1 W.L.R. 1718) concerned legislation which governed a police complaints board and a charitable board respectively. The statutes in question thus did not relate to decisions of the judiciary. The third case invoked in support of their interpretation, R. v. C.D. [1976] 1 N.Z.L.R. 436, related to a statutory provision which expressly stated that the
considerations to which regard was to be had were “without limiting or affecting the Court’s discretion” (s. 5(2) of the Costs in Criminal Cases Act, 1967).
The interpretation of judicial notice in s. 3 of the Act of 1998 is not disputed. However, the defendants seek to invoke this interpretation as a means of inferring that some greater weight must have been intended by the legislature under section 4. Section 3 admittedly refers to the mode of proof and not the weight thereof. This does not render s. 4 superfluous, however. It is clear from the submissions of both of the parties that the formula in s. 4 is relevant to the question of the weight to be attached to particular evidence. This distinguishes the legislative intent in enacting s. 4 from that of s. 3 sufficiently to overcome the concerns of the defendants that s. 4 could be rendered nugatory.
The question then is the weight which should be attached to the statutory formula in accordance with the terms of section 4. In determining the weight to attach to evidence, the court must retain the judicial discretion and independence which is inherent in the separation of powers. However, in exercising this discretion, the court is free to take into consideration such evidence as it deems fit and to weight such evidence in the manner which the court deems to be appropriate.
The enactment of s. 4 clearly represents an endorsement by the legislature of a particular formula for assessing hearing loss and tinnitus. This is a factor which the court should consider and take into account. The requirement to “have regard to” the Green Book does not however impose a duty upon the court to adhere strictly to its terms. Therefore, while the court must consider the approach adopted in the Green Book, it reserves the right to consider alternative approaches. The court may then determine which is the most appropriate solution in each individual case. In the absence of a more appropriate alternative solution, which has been established to the satisfaction of the court, the statutory formula should be applied. The circumstances in which the statutory formula is not applied may in fact transpire to be as limited as the defendants submissions suggest. However, this will be a matter for the determination of the court in the circumstances of each individual case.
No constitutional challenge has been raised by the plaintiff and he cannot now do so. In any event I do not interpret the provisions of the Act of 1998 as placing a fetter on the exercise of judicial discretion. See Maher v. Attorney General [1973] I.R. 140. What is provided for here is a fair and reasonable method for assessing these litigants’ hearing disabilities.
The court may in any given case deem the formula inappropriate where the evidence establishes that it ought not to be applied.
As to the assessment of damages in this case, taking the evidence as presented to the court, I arrive at the following conclusions, firstly, it is common case that the plaintiff has a 2% noise induced hearing loss. For that he must be compensated.
The plaintiff also alleges that he is suffering from tinnitus. I accept on the evidence in this case and also having regard to evidence I have heard in other cases, that tinnitus may be an extremely serious disability. I also accept that it is incapable of being proven objectively. Turning to the evidence of the plaintiff on this matter, I regret that I have come to the conclusion, that I am not satisfied, on the balance of probabilities, that the plaintiff suffers from this condition.
I note that the plaintiff had no history of such condition from 1972 until he issued these High Court proceedings in 1995. His evidence in relation to that alleged condition was unconvincing. As Professor Blayney asserted in evidence, a person claiming to suffer from tinnitus cannot “just appear”. Such a person would, in his opinion, have a “time tried history”. By the time the claimant comes to court, they should have been through the entire range of investigations and treatment for the condition they claim to suffer from. Having regard to these factors, I conclude that I ought not make an award in relation to the claim for tinnitus in this case. As to what is an appropriate figure of compensation for a person suffering a 2% hearing disability, it seems to be appropriate to have regard to the opinions of Mustill J. in Thompson v. Smiths Shiprepairers [1984] Q.B. 405 at page 421. He was dealing with the absence of authoritative official guidance on the levels at which noise exposure becomes dangerous. In his view, one of the more convincing explanations for the lack of urgency in dealing with noise induced hearing loss was that deafness is an underrated affliction.
“The hardships imposed by blindness are there for all the sighted to see. More imagination is needed to picture the isolation, frustration and fatigue endured by those who cannot hear. Hardness of hearing can be sometimes as much a matter for derision, as for sympathy.
Furthermore, it is realistic, not insensitive, to acknowledge that the handicaps suffered by these plaintiffs are less striking than those of other victims of industrial life. Excessive noise does not kill, or shorten the expectation of life. It does not lead to paralysis, mutilation or scarring. There is no pain, Although in some instances a distressing tinnitus may be an additional symptom. At the levels with which we are concerned, exposure for the whole of a working lifetime does not bring about total deafness, or anything approaching it. The symptoms do not render the sufferer unfit for further work in the industry: indeed, more than one writer has pointed out the unpleasant paradox that a worker made deaf by excessive noise is better able to endure the discomfort of such noise than a person with unimpaired hearing. All in all, the consequence of a noise-induced hearing loss goes no further than a real, but not total, diminution in the opportunity to enjoy life to the full.”
I do not think that is an unkind or unfair assessment of the condition for which people have to be compensated by the court.
Turning to the plaintiff’s case and the specific deficits of which he complains, I prefer the evidence adduced on behalf of the defendants’ experts. I accept the evidence given by the plaintiff’s experts as being honestly given. They are not treating doctors. Nonetheless, they act and proffer their evidence on the case history as given to them by the plaintiff.
Accepting, as I do, the evidence of the defendants’ experts, I find, on the balance of probabilities, that the plaintiff’s complaints are not sustained. His hearing loss is minor. He, being unaware of any hearing problem prior to examination by Colonel Collins in 1993, tells its own story. On the evidence, I cannot understand how he has a problem with the telephone. Likewise, with the television. The former I find difficult to accept, having regard to the auditory range provided by telephone companies. The second problem, to my mind is doubtful, on the plaintiff’s own evidence and is easily solved according to Professor Alberti’s evidence. As to the plaintiff’s background noise problem, he has, on his own evidence, not altered his lifestyle.
On Professor Alberti’s evidence, I am impressed with the view that noise induced hearing loss is more probably likely to arise in the ear nearest the weapons discharge point. For a right sided shootist that ought to mean that the left ear is more likely to be damaged. That makes sense on a little reflection. The ear which is closest to the weapon’s butt is farthest away from the discharge point.
Taking the plaintiff’s case at its highest, and accepting as fact Colonel Collins evidence as to the advice given to the plaintiff, I conclude, on the balance of probabilities, that this plaintiff never suffered other than a very minor noise induced hearing loss.
In all of the circumstances I propose to allow the plaintiff the sum of £3,000.00 for a 2% hearing disability from which he suffers.
Kevin Hanley v Minister for Defence, Ireland and the Attorney General
1998 No. 237
DENHAM J
delivered her judgment on 7 December 1999 saying: This is an appeal by the defendants/appellants (hereinafter referred to as the defendants) against a judgment of the High Court (Johnson J) delivered on 21 July 1998 [1998] 4 IR 496. No issue of liability arose in the High Court or on this appeal. This is a case of assessment of damages for the plaintiff/respondent (hereinafter referred to as the plaintiff) as a result of the personal injuries which he suffered due to the admitted negligence of the defendants in failing to supply him with adequate ear protection during his employment in the Defence Forces. The plaintiff was born on 24 April 1963. He is a married man. He joined the Defence Forces in 1980 and he continues to serve in the army.
It was agreed by the parties that the plaintiff suffers a 7% disability at the moment, using the formula provided for in the Green Book. This formula was introduced by the Civil Liability (Assessment of Hearing Injury) Act 1998. The Green Book was considered in Greene v. Minister for Defence [1998] 4 IR 464 by Lavan J who accepted it as a fair and adequate means of measuring disability. The learned trial judge in this case accepted that the Green Book is a fair and reasonable means of calculating disability at a given point in time and that the Green Book should be followed by all courts unless there is a specific reason in any given case for not so doing. However, he continued at p. 500:
… the Green Book is not complete and there are some very serious gaps in it. The court is obliged to take judicial notice of the Green Book and have regard to it and that is what I am doing. However, as I have stated the formula in the Green Book gives merely a still photograph of the impairment measured in disability terms of an injured party at any given moment, but in the formula there is no provision made for future deterioration caused by the combination of noise induced hearing loss and age related hearing loss.
As to a formula for age related hearing loss he referred to the evidence of Dr Flynn, Professor Lutman and Professor Alberd and was satisfied that the correct table to take and base on which to work is of an unscreened panel such as the one which appears in Annex 2 of ISO 1999 at p. 11. He stated at p. 501:
… Professor Lutman pointed out at p. 6 of the said ISO 1999 that there was a formula for calculating the probable advance on an unscreened population of the noise induced hearing loss and age related hearing loss. This database and this formula, to my mind, are the correct ones which should be adopted and I intend adopting them in this case.
*279
To do anything else is merely to speculate. In my view if one has a formula worked out scientifically then it will give one as best one can a reasonably accurate prognostication as to what the situation will be, and what the condition of the plaintiff will be in the future.
Having regard to the formula adopted the learned trial judge held that the plaintiff will have a cumulative 20% hearing disability at the age of 60. He took that 20% figure for the purpose of assessing damages, which figure is made up of a combination of noise induced hearing loss and age related hearing loss which it is anticipated the plaintiff will have when he is 60. As to the assessment the learned trial judge held at p. 501:
The plaintiff has suffered a 7% loss to date. Utilising database in the ISO 1999 together with the formula contained at para. 5.1 of the said ISO, the evidence indicates that at the age of 60 to 61 he will have a hearing loss of 20%. The plaintiff in addition complains of tinnitus. In my view it is not severe tinnitus. It is moderate tinnitus and I will allow a figure of 2% in addition for the tinnitus which he is suffering.
He then assessed damages allocating moneys for each degree of disability. The learned trial judge determined that he would grant £3,000 per 1% of disability to a person at the age of 30. This scale ranges down to £1,500 per 1% of disability when the injured person is 60 years of age. For percentages of damage between 10% and 25% the learned trial judge determined that the award per cent of disability would range from £6,000 at the age of 30 to £3,000 at the age of 60. The scale is set out in Schedule A which is attached to this judgment.
Based on this scale the learned trial judge calculated the damages for the plaintiff. The 9% disability suffered at the age of 35 being £2,750 × 9 equals £24,750. As to the age related disability of 13%, which it was determined the plaintiff would suffer when he is 60 years of age, the learned trial judge calculated also on his formula; the tenth degree of disability at the rate of £1,500 plus the remaining disability at £3,000 per percentage. Thus, 12 × £3,000 is £36,000, which taken with the £1,500 totals £37,500. As this latter figure is the calculation of the figure which would be due to the plaintiff when he is 60 years of age on this formula, the learned trial judge then required an actuarial calculation to reduce the figure to the appropriate sum to be paid out at that time by the court, which was determined at £15,825.
Other matters concerned the learned trial judge, including a reduction in employment opportunities and promotion for the plaintiff. For these matters he allowed £10,000.
Thus, the total award on the assessment of damages was: *280
For the 9% noise induced hearing loss presently suffered by the plaintiff
£24,750
To compensate the plaintiff for 13% age related disability anticipated at 60 years of age (which, added to the noise induced disability would create a disability of 22%) £37,500, actuarially reduced to
£15,825
To loss of opportunity of serving in Lebanon, promotions and other additional duties
£10,000
Total
£50,575
Appeal
The defendants have appealed against the order of Johnson J. There is no appeal against the facts found. The finding of the noise induced hearing disability at 7% and the tinnitus at 2%, being a total of 9% disability, is taken as a proper application of the Green Book. Owing to an error by the defendants an incorrect figure was given to the High Court as to the future age related hearing loss of the plaintiff. However, the defendants did not contest the figure of 13% in this case in the circumstances.
The kernel of the appeal is against the formula used by the learned trial judge, on the conversion of the disability into a sum of money, as being excessive. The defendants requested the High Court to adopt a formula which would create a just decision for the plaintiff and would be a formula applicable to similar cases. The learned trial judge determined a formula to assist the defendants. However, the defendants appeal against the formula determined and submit that its application would lead to excessive awards.
On this appeal there are two issues:
1. Is it appropriate for the court to confirm a formula being a proposed scale of damages for the injury of deafness arising in similar cases?
2.
(a) Was the learned trial judge correct in his formula?
(b) If the answer is in the negative would the scale of damages proposed by the defendants be appropriate? If it would not, what would be a just formula?
1. Is it appropriate for the court to confirm a formula being a proposed scale of damages for the injury of deafness arising in similar cases?
There are many thousands of ‘army deafness’ cases proceeding through the courts. The Civil Liability (Assessment of Hearing Injury) Act 1998 provided for judicial notice to be taken of a report to the Minister for Health and Children by an expert hearing group, for courts to have regard to certain matters contained in that report in certain circumstances and for connected matters. *281 This report, the Green Book, establishes a fair and adequate method of calculating hearing disability. In effect, it provides a formula for the assessment of hearing handicap.
Johnson J held that the formula established by the Green Book was incomplete as it did not provide for the future position of the plaintiff when age related hearing loss was combined with the noise induced injury. Counsel for the defendants acknowledged that account should be taken of future age related hearing loss when calculating damages for noise related hearing loss.
The matter for determination relates to a formula for assessing damages. A formula having been obtained through the Green Book for the assessment of hearing disability, it is now a question of whether it is appropriate to establish a formula for determining the quantum of damages for hearing loss in similar cases. It is of fundamental importance that the administration of justice be fair. This includes the concept that there should be consistency in similar cases in decision making, including the determination of awards of damages. The constitutional guarantee of equality (Article 40.1) requires that persons be held equal before the law. There is an obligation of equal treatment. Thus, similar cases should be determined in a constant and foreseeable pattern. The concepts of justice and fairness demand that the system not be a lottery. Also, if a formula is in place there is less reason for delay and injured parties should be able to move to a conclusion in a speedy process.
It is appropriate to adopt guidelines in relation to damages to enable the decisions of the courts in similar cases be consistent. It is appropriate to have a formula for converting similar injury into damages. However, whilst a general formula is appropriate for assessing the general situation, a court retains the power at common law and under the Constitution to make a fair decision for each particular case. Damages are intended to represent fair and reasonable monetary compensation for pain, suffering, inconvenience and loss of pleasures of life which the injury has caused to the plaintiff in the particular case. A formula is a guideline for a judge in similar cases from which a judge may depart in a particular case if the specific circumstances so require to achieve a just result.
Was the learned trial judge correct in his formula?
The formula adopted by the learned trial judge, set out in Schedule A, works from a base figure of £1,500 for 1% of disability at the age of 60 and this is doubled when the disability is in the 10%–25% range. The court was informed that the going rate for damages for complete deafness is in the range of £125,000 to £175,000, i.e. approximately £150,000. This may have been the basis for the original determination of £1,500 per 1% of disability which can be inferred from Greene v. Minister for Defence [1998] 4 IR 464 and which was adopted by Johnson J in this case as part of his formula.
*282
However, when the scale proposed by the learned trial judge is applied it creates a system of excessive awards. The base of £1,500 for a person aged 60 for a disability in the range 1% to 10% is too high and the doubling of the sum for disability between 10% and 25% would lead to inordinate awards. I have come to this conclusion having considered the figures and the examples given by counsel in court. Applying the learned trial judge’s formula sums awarded would be excessive; excessive when analysed against the sum considered to be the going rate for total deafness. In fact such awards would be wholly out of proportion to the injury suffered. Consequently, I am satisfied that the formula suggested by the learned trial judge was incorrect in that it would give rise to excessive awards.
On the second day of the appeal in this case the defendants, at the request of the Supreme Court, presented a Department of Defence Hearing Loss Cases Proposed Scale of Damages. It was on two sheets. The first sheet, in a column headed ‘Age’, gave ages in five-year spans from 25 to ‘60 and over’. The second column related to each percentage point of disability in the range from 1% to 10% (including future ageing in brackets). The third column related to each percentage point of disability from 11% onwards (including future ageing in brackets). A copy of this sheet is set out in Schedule B, Part 1, attached to this judgment. The second sheet was an enlarged sheet wherein the left hand column headed ‘Age’ ran from 25 to 60 and the line across the top related to percentage points of disability from 1 to 25. A copy of this second large sheet is set out in Schedule B, Part 2 and Part 3, attached to this judgment. The proposed scale of damages of the defendants is thus set out.
The sums of money on the defendant’s proposed scale, in Schedule B, include a sum for future ageing. All parties now agree that there should be an element of damages for the future age related disability. On this formula the base figure per percentage point of disability in the range 1% to 10% for a 25 year old is £1,625 and of this sum £438 is to allow for future ageing. On the other hand the base figure per percentage point of disability for a 60 year old and over is £750, with no figure for future ageing. It was the State’s position that this was because at that age the noise related hearing loss graph and the age related hearing loss graph are coming together.
As previously stated I am satisfied that the formula proposed by the learned High Court judge, Schedule A, would lead to excessive awards. In addition, there is another negative factor in the High Court formula. Under the formula proposed by the High Court three calculations are necessary (one for the present, one to include future ageing, and one being the actuarial calculation on compensation today for future loss). Under the Department of Defence proposal, Schedule B, there is one calculation which includes future ageing as a component. Such an approach, involving one calculation only, is to be recommended.
Looking at the proposed scale of the Department of Defence, examples can *283 be considered. Thus, for a 30 year old person with a 25% hearing disability, under this scale the appropriate sum would be £43,125, which includes a sum for future ageing. Other examples also show it to be an appropriate scale. Thus, a 35 year old with a 9% disability would receive £12,375; a 50 year old with an 18% disability would receive the sum of £20,000; a 25 year old with a 20% disability would receive the sum of £36,563; and a 40 year old with a disability of 11% would receive the sum of £14,063.
I am satisfied that the formula proposed by the Department of Defence is an appropriate guideline to determine in a just way similar cases. Whilst the formula may be adopted as a guideline courts retain their discretion to make awards of sums appropriate and fair in specific cases to a particular plaintiff in light of the particular circumstances and to adjust awards accordingly. However, there should be a specific reason in a case for not following the guidelines.
In addition to the sum the subject of these guidelines the court may include other issues. Thus, in this case the learned trial judge included a £10,000 award for loss of earnings for the future which included loss of opportunity to serve in the Lebanon, loss of promotions and other losses. This figure was not contested on this appeal.
It may well be that in the operation of the guidelines minor amendments may have to be made. Thus, it may be found that at the extremes of the guidelines (the less serious injury, the more serious injury, the older plaintiff or the younger plaintiff) there may need to be flexibility and some fine tuning.
Conclusion
The court was informed that in this case the sums awarded in the High Court had been paid out. Thus, the issue on the appeal is the formula; the guidelines. I conclude that it is fair and just to adopt a formula or guidelines to enable a consistent level of damages be awarded in similar cases. This is subject to the general principle which requires justice to be applied in all cases, consequently attention may have to be drawn to particular facts in particular cases.
I am satisfied that the scale proposed by the learned High Court judge would lead to excessive awards. I conclude that the scale of damages proposed by the Department of Defence is a fair and just scale giving rise to a just guideline, including as it does a sum for current disability and a sum related to future age related disability. This being so, it is appropriate to apply the Department of Defence proposed scale of damages as a guideline in similar cases subject to the limitations expressed in this judgment.
*284
KEANE J
(Hamilton CJ and Murphy J concurring):
Introduction
The plaintiff is an army private who lives in Limerick and was born on 24 April 1963. He joined the army in 1980 and was still in the army when the case was heard in the High Court. It is accepted on behalf of the defendants that, during the course of his army career, he was exposed to excessive noise from the discharge of weapons and that they were negligent and in breach of their duty to him in failing to provide him with any form of ear protection. As a result, the plaintiff suffered, and will continue to suffer, from a hearing loss and tinnitus. The action having come on for hearing in the High Court before Johnson J as an assessment of damages only, he was awarded the sum of £50,575 made up as follows:
General damages to date
£24,750
General damages for the future
£15,825
Loss of earnings for the future
£10,000
The defendants now appeal to this Court on the grounds that each of the sums awarded is excessive and/or contrary to the evidence.
The claim in this case is one of a huge number of similar claims made by members of the defence forces, some of which have already been heard in the High Court and, in some instances, have been the subject of appeals to this court.
With a view to establishing criteria for the assessment of hearing disability, an expert group was established by the Minister for Health and Children in November 1997. The expert group presented their report entitled ‘Hearing Disability Assessment’ to the minister in 1998. It has since become known as, and will be referred to in this judgment as ‘the Green Book’. On 12 May 1998, the Civil Liability (Assessment of Hearing Injury) Act 1998 (hereafter ‘the Act’) became law. The provisions of the Act are referred to in more detail at a later stage: at this point, it is sufficient to note that they inter alia require the courts, in all proceedings where damages are claimed for personal injury arising from hearing loss, to have regard to certain parts of the Green Book. The Act and the Green Book were considered by the High Court (Lavan J) in Greene v. Minister for Defence [1998] 4 IR 464 and it will also be necessary to refer to that judgment in more detail at a later stage.
The Act, although requiring the courts to have regard to certain parts of the Green Book, did not prescribe any formula for translating the degree of hearing disability established in any case into monetary compensation. From his experience in dealing with many of these cases, the learned High Court judge had concluded that it was desirable that there should be established, so far as *285 practical, a formula for translating hearing disability assessed by reference to the Green Book into such compensation. Having heard evidence from a number of experts called on behalf of both the plaintiff and the defendants, in a written judgment delivered on 31 July 1998 he calculated the damages to which he considered the plaintiff entitled in accordance with a formula set out in the form of a scale at the end of the judgment.
During the hearing of the appeal, at the request of the court, the defendants furnished a scale which, in their submission, was more appropriate than that adopted by the learned High Court judge. The two scales are respectively referred to in this judgment as ‘the High Court Scale’ and ‘the State Scale’ and are set out in Schedules A and B to this judgment.
The plaintiff’s injuries
The plaintiff joined the army in 1980 when he was 17 or 18 years old. He said that from the beginning of his career he noticed that when he came from the firing range, there was a buzzing in his ears, but that he did not take any notice of it because it was regarded as ‘a normal thing’ amongst soldiers. The buzzing would last for a couple of hours after the range practice and then go away. In the three of four years prior to the hearing, he had noticed that this buzzing, which he now knew to be correctly described as tinnitus, was increasing and that he had it now about three or four times a week. In 1995 he was referred for an audiogramme, an accepted method of determining hearing loss. It was clear from this audiogramme that the plaintiff had suffered a hearing loss, the extent of which will be discussed in greater detail at a later stage.
The plaintiff said that the effect of this hearing loss was that, when he was in a group of people, he found it difficult to hear and understand what people were saying. While listening to the radio or watching television, he had to have the volume turned up, which was a natural source of irritation to his family. He also thought that this affected his social life, since he had to keep asking his wife to tell him what people were saying to him.
The plaintiff said that until recently his duties involved him working as a waiter in the officers’ mess. He found that, as a result of the background noise during functions in the mess, he had to ask people to repeat their orders or requests and that he found this embarrassing. As a result, he gave up that particular job after about two years.
The plaintiff said that, in quiet surroundings, talking to a single person, he was able to communicate quite well. He could also conduct telephone conversations in a normal fashion, except that he would have to close the doors or lower the volume on the television. He would also on occasions fail to hear the telephone or the doorbell ring.
The plaintiff said that, as a result of the hearing loss disclosed by the audiogramme, he had been reduced from grade 1 to grade 5. He was concerned *286 that this might lead to his being discharged from the army at some stage, although he had intended to stay in the army until he was 60.
The learned High Court judge’s findings as to the effect on the plaintiff of his hearing loss were as follows (at pp. 499–500):
I am satisfied that the plaintiff has suffered a deal of discomfort to date and has had to give up his job in the officers’ mess in Limerick because of his inability to hear in crowded locations. In addition I am satisfied that he has suffered a great deal of anxiety as a result of being down-graded to grade 5 in the army, and he has deep concerns about his future in the army, in which he hopes to remain until he is 60, in case he is boarded out of the army because of hearing difficulties. The evidence of the army personnel, particularly Commandant Loftus, reduced this eventuality to at very best a possibility.
At p. 503:
[The plaintiff] has indicated he wants to spend the remainder of his career [in the army] and of course if he can then all is well. I have asked the parties if it were possible for me to make an award for damages which would not be implemented unless he lost his position in the army through loss of hearing but it was indicated by the parties that this was not in my power to do.
… I have stated above, I have been assisted by Commandant Loftus’ evidence that this eventuality is unlikely to occur and that he will not lose his position in the army.
However, I am satisfied that on the balance of probabilities his opportunities for serving in the Lebanon will be reduced and indeed for promotion and other additional duties…. I intend to allow a sum of £10,000 in respect of this, to be added to the damages already given.
The scientific assessment of hearing disability
Hearing impairment or hearing loss can take a number of forms. They can be divided, however, into three main categories, sensorineural hearing loss, conductive hearing loss and mixed hearing loss, the third being a combination of sensorineural and conductive hearing loss.
Sensorineural hearing loss is usually irreversible and permanent. It can be caused by a number of factors, including the ageing process and noise. Conductive hearing loss is of mechanical origin and can be rectified by surgery. In a case such as the present, accordingly, one is concerned solely with sensorineural hearing loss.
That form of loss affects the cochlea or auditory nerves in the ear. There are, at the outset, 23,000 microscopic hair cells inside the cochlea which detect *287 the presence of sound vibrations and send the appropriate electrical information to the brain. However, both the hair cells and the attached nerves degenerate with the passage of time, the process known as ‘Age Related Hearing Loss’ (ARHL). It is also sometimes referred to as ‘presbyacusis’, but under that description is more properly confined to the elderly. Age related hearing loss infact begins as early as the second decade of life.
Noise Induced Hearing Loss (NIHL) is due to loss of hair cells in the cochlea. The damage can be caused by a number of factors, including the character of the noise, its frequency spectrum, its intensity and its duration. In the present case, the plaintiff was subjected to impulse noise following gun fire, i.e. a noise of short duration and high density with a characteristic wave form.
The intensity of sounds as they impact on the human ear can range from those we regard as very loud — such as a pneumatic drill — to sounds which are barely above the threshold at which our ears can detect them. The range of such intensities, from the threshold of hearing to the threshold of pain, is so huge, that a logarithmic scale must be used to measure them. Where the logarithm to the base 10 is taken, the units of the scale are called bels, after Alexander Graham Bell. That unit is also inconveniently small, and the scale is accordingly expressed in decibels or dBls.
The nature of the reception by the human ear of sound is not determined by the intensity of the sound, measured in decibels, alone. Sound travels in waves, the frequency of which over a period of time can be scientifically measured. The unit of measurement is the hertz and the nature of the reception by the human ear of particular sounds will be a function, not simply of their intensity measured in decibels, but also of their wave frequency measured in hertzs. If, for example, one takes a sound level of 60 decibels — approximating to the level of ordinary conversational speech — it will be effectively inaudible until it reaches a frequency of 2,000 hertz or 2 kilohertz (2 kh for short). However, putting it crudely, once the frequency increases beyond 8 kh, the graph pattern is reversed and the level of audibility decreases sharply, irrespective of the sound level in decibels. It also appears that, in general terms, noise at a lower frequency will be more audible against a quiet background — e.g. on the telephone — than against a noisy background, such as a crowded room.
The process of testing hearing levels by audiometers is accordingly based, not merely on the amplification of the sound so as to reach particular decibel levels, but also on the production of tones of specific frequencies, ranging from 250 Hz to 8000 Hz.
The Green Book proceeds on the basis that, in a normal population, there is a statistically chosen limit below which the hearing threshold is regarded as normal. A hearing threshold above this level is regarded as indicating a disability. The figure taken by the Green Book — referred to as the ‘low fence’ — is 20 dB, using the frequencies 500 Hz, 1000 Hz, 2000 Hz and 4000 Hz. There is *288 then a ‘high fence’, i.e. the average hearing threshold level above which virtually no meaningful hearing occurs and at which hearing disability is considered to be 100%. That figure is 100 dB. A person with hearing at the low fence level or below it will be able to detect woodland noise, such as the rustling of leaves. A person at the high fence level or above it would be unable to hear a pneumatic drill or the average disco at full volume.
It should also be noted that the lower the frequencies selected, the lower the low fence should be.
The Green Book provides a formula for the assessment of hearing loss which is as follows. The hearing threshold levels at 500 Hz, 1000 Hz, 2000 Hz and 4,000 Hz are added together and then divided by four. This is done separately for the right and left ear. 20 dB — ‘the low fence level’ — is then deducted from the average obtained for each year, to give the average hearing loss. Because of reasons set out in the Green Book, the average hearing loss of each ear must then be multiplied by 1.25 and a further adjustment made to reflect the fact that the hearing in one ear is normally better than in the other. There is then an adjustment, according to tables set out in the book, for ARHL beyond the age of 69 years in males and 77 years in females.
A table is set out in the Green Book (p.9) which indicates in percentage terms the disability represented by hearing falling below a number of specified thresholds measured in decibels. This table, which is of considerable assistance in understanding the issues arising in the case, is reproduced in Appendix C to this judgment.
The figure resulting from these calculations is the hearing disability in both ears now being suffered by the person concerned expressed in percentage term: what is called in the Green Book the Binaural Percentage Hearing Disability. In the case of the plaintiff, the agreed evidence is that it is 7% together with an additional figure of 2% in respect of tinnitus.
That figure, however, makes no allowance for the degree of hearing disability which the plaintiff will suffer from age 60 onwards and which solely is attributable to NIHL. The evidence of the experts in this case was that the effect on hearing of ARHL and NIHL are additive. However, the total effects of ARHL and NIHL are less than the sum of each considered individually and, accordingly, a formula has been devised in order to ascertain the extent to which a hearing disability in a person of the plaintiff’s age will be increased as a result of NIHL as distinct from ARHL. The formula is to be found in paragraph 5.1 of an international standard produced by the International Organisation for Standardisation (‘ISO’) and is referred to as ISO 1999. According to the evidence of Professor Lutman in the present case, later research has indicated that the formula as set out in ISO 1999 may require adjustment if it is not to overstate the NIHL component. Be that as it may, it was accepted on behalf of the defendants at the trial that, adopting the relevant formula, the increased *289 disability due to NIHL at age 60 was 13% and that was the figure on which the learned High Court judge based his assessments. However, this is acknowledged now to have been erroneous. The relevant percentage figure was 4%, but the defendants have accepted that they cannot reopen the matter at this stage.
It should also be pointed out that, in determining the extent to which the plaintiff’s disabilities will increase over the years as a result exclusively of NIHL as distinct from ARHL, there are two statistical models which may be employed. One is that based on a population cohort who had been assessed as having normal hearing or, to use the scientific terminology, are a ‘highly screened’ otologically normal population. The other is a typical ‘unscreened’ cohort who may have had various forms of noise exposure from occupational or other causes. The second model is set out in the form of Database B in ISO 1999 and there does not appear to be any serious dispute that it was the appropriate model to use in the present case.
The applicable law
The principal issue in this case, both in the High Court and in this Court, was as to the amount of general damages to which the plaintiff was entitled under the two headings of ‘general damages to date’ and ‘general damages for the future’. As already noted, the plaintiff was also awarded the sum of £10,000 in respect of loss of earnings for the future, which was also the subject of an appeal.
In his judgment in Sinnott v. Quinnsworth Ltd [1984] ILRM 523, O’Higgins CJ said at p. 531:
General damages are intended to represent fair and reasonable monetary compensation for the pain, suffering, inconvenience and loss of the pleasures of life which the injury has caused and will cause to the plaintiff.
The plaintiff in the present case is, accordingly, entitled to be fairly compensated in accordance with those criteria for the hearing disability from which he undoubtedly suffers as a result of the defendants’ admitted negligence and from which he will continue to suffer. At the same time, the compensation to which he is entitled must bear a reasonable proportion to the circumstances of the case. It must be remembered, in this connection, that the personal injuries which, are the subject of compensation in civil proceedings can range across a huge spectrum from the very modest — some abrasions and contusions — to truly catastrophic cases of nearly total paralysis.
In the hearing disability cases, there is a similar spectrum. At one end of the scale, there is a reduction in the ability to hear which is technically a ‘disability’ within the parameters identified in the Green Book but of which the person *290 concerned may not even be aware. At the other end of the scale there is total deafness. In between, there is a range of moderate to serious hearing impairments within which the present case falls. Although deafness has notoriously not attracted the same degree of sympathy as other forms of disability, the consequences for the person concerned, in terms both of his capacity to enjoy life and to obtain employment, must not be underestimated.
In assessing the amount of compensation in cases of loss of hearing, the court’s task is, in one respect, simpler than in other cases. As the necessarily simplified and abbreviated summary of the state of scientific knowledge I have attempted indicates, it is possible to measure the degree of disability concerned in relatively precise terms. The contrast with a case in which the court is required to assess the effects of pain and suffering resulting from fractured or amputated limbs or serious damage to the central nervous system is obvious.
It is in the light of these considerations that the provisions of the Act fall to be considered. S. 4 provides that:
(1) In all proceedings claiming damages for personal injury arising from hearing loss, the courts shall, in determining the extent of the injuries suffered, have regard to Chapter 7 (Irish Hearing Disability Assessment System) of the [Green Book] and, in particular, to the matters set out in paragraph 1 (Summary) and Table 4 (Disability Percentage Age Correction Factor) to paragraph 7 (Age Related Hearing Loss Correction) of that chapter, and the said paragraph 1 and Table 4 are, for convenience of reference, set out in Part I and Part II, respectively, of the Schedule to this Act.
(2) In all proceedings claiming damages for personal injury arising from tinnitus, the courts shall, in determining the extent of the injuries suffered, have regard to the classification method contained in paragraph 9 (Tinnitus) of Chapter 7 (Irish Hearing Disability Assessment System) of the [Green Book].
Part I of the Schedule then sets out the calculation for the assessment of binaural percentage hearing disability to which I have already referred. It goes on as follows:
The additional disability allowance for moderate or severe tinnitus may be added.
This percentage computed is the proportion of hearing disability that the individual experiences, it is not the proportion of total body disablement [sic].
Part II then sets out the Disability Percentage Age Correction Factor for males and females at age 70 and over.
The policy underlying the Act is obvious. Although it is not confined in its terms to the many cases brought against the present defendants, it was, of course, *291 the legislative response to what may fairly be described as a ‘litigation crisis’ confronting the State. The objective was clearly to ensure that, while those who had suffered hearing loss as a result of negligence were fairly compensated, the amount of that compensation should, so far as possible, be assessed by courts in a manner which reflects the basic principle that like cases should be treated alike. It was also no doubt envisaged that such an approach would facilitate the early compromise of claims of this nature with a consequent significant reduction in the huge burden of legal costs involved.
While it is the duty of the courts to give effect to the legislative policy enshrined in the Act, every case which comes before them for assessment must be considered in the light of its particular facts. The Act indeed implicitly acknowledges that this should be the appropriate approach by doing no more than requiring the court to ‘have regard’ to the relevant sections of the Green Book.
As the learned High Court judge pointed out, the evidence in this case made it clear that there are aspects of the assessment of hearing disability to which the Green Book offers no guidance. In particular, the expert evidence was overwhelmingly to the effect that, so far as the relationship between NIHL and ARHL was concerned, ISO 1999 was the most widely accepted guide. Although that standard is not referred to in the Act, I have no doubt — and this again appears to have been accepted at the hearing of this appeal — that the courts should have regard to the guidance afforded by that standard in the same manner as they have regard to the Green Book.
As I have already noted, the Act and the Green Book were considered by Lavan J in Greene v. Minister for Defence. In that case he said (at p. 492):
The requirement to ‘have regard to’ the Green Book does not … impose a duty upon the court to adhere strictly to its terms. Therefore, while the court must consider the approach adopted in the Green Book, it reserves the right to consider alternative approaches. The court may then determine which is the most appropriate solution in each individual case. In the absence of a more appropriate alternative solution … established to the satisfaction of the court, the statutory formula should be applied. The circumstances in which the statutory formula is not applied may in fact transpire to be as limited as the defendants’ submissions suggest. However, this will be a matter for the determination of the court in the circumstances of each individual case.
I am satisfied that that is a correct statement of the law applicable to cases of this nature.
In Greene, the plaintiff, who at the time of the hearing was aged 59, had been assessed some five years earlier as having a hearing loss of 40 dBls at 4,000 Hz. It was agreed between the parties that this represented a 2% NIHL. Lavan J assessed the appropriate compensation for this hearing loss at £3,000, *292 i.e. a sum of £1,500 in respect of each 1% of hearing loss. While it is not so stated in express terms in the judgment, it would seem self-evident that the learned trial judge in that case was treating a sum of £150,000 as a reasonable median figure (obviously liable to fluctuate according to age) which might be awarded as general damages in a case of total deafness and that it was on that basis that he considered the sum of £1,500 for each 1% of hearing disability as being appropriate.
The High Court scale and the State scale
The two scales presented to the court in the present case can now be considered in the light of the legal principles to which I have referred. Subject to a crucial difference in the monetary equivalent of 1% disability (‘the basic unit’), the two scales are in agreement as to how a present disability should be compensated. This takes as its starting point a basic unit at age 60. Under the High Court scale, the figure is £1,500 for each 1% of disability at that age. Under the State scale it is £750. Both scales then assume that, throughout a person’s life, going backwards from age 60 to age 1, the basic unit should be increased on a linear basis. Thus, under the High Court scale, one begins with £1,500 at age 60, increased to £1,750 at age 55 and so on. In the case of an infant who suffered a hearing disability in the first year of life one would arrive at a figure of £6,000 under the High Court scale. At age 30, the figure would be £3,000.
In the case of a present disability, the State scale operates in precisely the same fashion, but since it takes the basic unit at age 60 as being £750, the figure at age 30 is £1,500 and the infant figure is £3,000.
Both scales, accordingly, compensate the person looking forward to 20 years of reduced hearing at a higher rate than the person looking forward to 10 years of such disability. That is a fair and reasonable approach to assessing a present disability and was accepted to be such by the parties. It is the difference in the basic unit to be adopted — £1,500 under the High Court scale and £750 under the State scale — which is crucial.
The calculations to which I have so far referred do not fully reflect the extent of the disability. One must in addition take into account the increased disability at age 60 resulting from the combination of ARHL and NIHL. Clearly, the plaintiff was only entitled to a figure for NIHL, which in this case, while assessed by the trial judge at 13%, should have been 4%.
The trial judge dealt with the NIHL component by multiplying his basic unit by 13 and then effecting an actuarial reduction in the figure to allow for the fact that the plaintiff was getting compensated now for a disability that would not occur until age 60. This seems a reasonable approach. If one assumes, as the evidence indicated, that the entire disability does not come into operation on the plaintiff’s 60th birthday — and it would be surprising if it did — but rather proceeds on a linear basis from age 35 up to 60, he is entitled to be *293 compensated for that additional and progressive disability due to NIHL. But one also has to take into account the fact that he is being compensated now for a total loss that he would not have suffered until he was aged 60. It is, accordingly, appropriate to take the present value in actuarial terms of the basic unit multiplied by the appropriate percentage.
There is, however, as Lynch J points out in his judgment, another adjustment which then has to be made and which was not made in the High Court. The sum must reflect the fact that the plaintiff will only suffer from this disability for a specified period of years: at some stage, his hearing, because of ARHL alone, would have reached the same reduced level. According to the Table in the Green Book (p.60) the average male would suffer a 4% reduction, due to age alone, at age 73. That would suggest that the plaintiff was, accordingly, entitled to this figure for a 13 year period only from age 60 and not for the rest of his life and that a further actuarial reduction would be required to be made to allow for that factor. Such a reduction might be very small, if indeed any was to be made, but the position is further complicated by the fact that, according to Professor Lutman, men in the median range would reach the relevant degree of hearing loss at the age of 62. [Transcript, 15 July, Q20 & Q26.]
In that state of uncertainty, all one can say is that, in general, whatever may have been the position in this case, some actuarial reduction may have to be made, because of the factor identified by Lynch J. The extent of the actuarial reduction would have to be determined by reference to the evidence in the particular case.
The State scale also recognises that there is an additional factor but appears, at first sight, to contain a fallacy. It proceeds on the correct assumption that, to compensate the plaintiff for NIHL at age 60, one again takes the basic unit of £750. In the case of a person aged 59, the progressive deterioration is at its most minute, since it represents appropriately one year of deterioration. At the other end of the scale, an infant in the first year of life, what must be compensated, is 60 years of progressive deterioration until one reaches the ARHL and NIHL at age 60. Hence, the State scale identifies an NIHL figure of £63 at age 55 which would reach £750 at age one. Half way along the scale the figure is £375.
The State scale, however, does not treat the £313 (the relevant figure at age 35) as additional to the £1,375 payable in respect of each 1% of present hearing disability at that age; it merely identifies the £313 as a component of the £1,375. That would appear to be clearly wrong, since the £1,375 represents the present hearing loss which the plaintiff will have in any event for the rest of his life, irrespective of any additional hearing loss resulting from the joint operation of ARHL and NIHL. Counsel for the defendants explained this apparent anomaly in the State scale on the basis that, were it not for the additional component represented by the NIHL, the basic unit for the present disability, indi *294 cated at each point on the scale, would be too high. That does not seem to me to be a logical approach: provided the basic unit at age 60 in respect of hearing loss at that age is reasonable, then, adopting the approach common to both scales, it can be fairly adjusted to reflect the present extent of a hearing disability, clearly proportionately greater in the case of a person aged 35 than a person aged 59, since he would have to suffer from it for a significantly longer period of time.
It may have been intended that, under the State scale the basic unit of £1,375 is to be multiplied by 13% rather than 9%. It may well be that the difference between the resultant figure and the figure arrived at by employing the method used under the High Court scale — assuming, of course, they are both starting from the same basic unit — may not be all that significant.
There remains the question of the basic unit. The difficulty of the High Court scale is that it adopts £1,500 as the basic unit, irrespective of whether the disability is at the lowest possible level — 1% — or something higher. (An examination of both scales will indicate that a higher basic unit is used for disability ranging from 11% to 25%, but that does not affect the point with which I am at present concerned). The High Court scale, in other words, provides for a mathematically linear calculation which inevitably leads to serious distortions in awards. A person at the 1% level has, at the worst, a reduced ability to hear rustling leaves in woods. Applying the High Court scale, he becomes entitled to £1,500 at age 59 for a disability of which he is almost certainly unaware, unless for some reason, as in the case of persons employed in the defence forces, he is given an audiogram,
It should be borne in mind that both scales are dealing solely with disabilities up to 25%, i.e. what is described in the Green Book as ‘living room’. Accordingly, both scales are presented to the court on the basis that, when one reaches the area of either total or significant partial deafness, the normal method of assessing damages having regard to all the facts of the particular case is the only method that can be adopted.
In cases where the disability ranges from 1% to 25%, one is considering a range of hearing loss which extends from a disability which hardly merits any compensation at all to one that clearly requires compensation, albeit of a reasonably moderate nature. That difficulty could be met by dividing the scale from 1% to 25% into different bands attracting different units, but none were produced to us and it was accepted on behalf of the State that adopting such bands could be problematic.
One approach which could be adopted would be to take a basic unit of £1,500 as being reasonable for the 20%–25% band. At the other end, from 1% to 10%, there should be something more than a linear reduction and 25% of the basic unit would seem to be reasonable. There would then be a basic unit of £375 from 1% to 10%. The remaining 10% to 20% should then be 50% of the *295 highest basic unit, i.e. £750. If one takes the average of these figures to arrive at a basic unit, the result is precisely £750, i.e. the basic unit adopted by the State scale. No doubt it could be adjusted upwards or downwards but it seems to me a not unreasonable figure.
There is a further difficulty with the High Court scale: it takes the unit figure of £1,500 as being applicable only within the 1% to 10% band. For the band from 11% to 25%, the figure is doubled. For the reasons I have already indicated, there is a case to be made for having a higher basic unit for disability in excess of 10%, but not one which draws no distinction between 11% and 25%. In my view, the additions suggested for the 11% to 25% band in the State scale are more reasonable.
As Lynch J demonstrates in his judgment, these weaknesses in the High Court scale would inevitably lead to excessive awards. No doubt it could be said that the rigid application of the State scale might also lead to injustice. In the example cited by Lynch J — a 25% degree of disability at age 35 — the resultant figure of £39,531 might seem at first sight too low, given that a person at that level will be wholly unable to hear ‘living room’ speech and will suffer serious social and economic consequences as a result.
Such a person might well be entitled to a higher sum for general damages. It cannot be too strongly emphasised that the closer one comes to the 25% ceiling, the more likely it will be that, in specific cases determined on their own facts, the scale will be of reduced significance.
I am satisfied that the basic units in the State scale should be adopted in future cases, where appropriate. I am not persuaded that the resultant figure, whatever it may be, should be increased by 25% in every case, because, in the more serious cases, it might appear inadequate. Such cases, as I have suggested, can be dealt with by High Court judges on their merits.
There is the further difficulty that an increase of 25% — or indeed any particular percentage — is inevitably somewhat arbitrary. That cannot be said of the approach adopted in the High Court scale and the State scale: whatever other defects they may suffer from, they both take as their starting point the proposition that all cases of hearing loss should be related in percentage terms to the average award for general damages in cases of total deafness.
I would, accordingly, sum up my approach by saying that the basic unit adopted in the State scale is the basis which should normally be used in calculating loss in these cases. However, the scale should be treated as though it omitted the words ‘(including future ageing)’ at the head of each of the two columns. In addition, the figure which appears in brackets at each age is irrelevant. There has to be added to the basic unit, multiplied by the appropriate percentage, a further amount for NIHL to the extent that it will be aggravated by ARHL by the age of 60, discounted for present payment and subject, it may be, to the actuarial reduction referred to by Lynch J. So far as the more detailed *296 calculations set out in the table annexed to the State scale are concerned, these are simply mathematical extrapolations which may prove useful in practice in calculating damages in respect of immediate disability which is the result of NIHL. One cannot, of course, assume that all the calculations are correct: those are matters which the parties or their legal advisers will be in a position to check in any particular case.
It is a curious feature of the present case — and one that does not appear to have been satisfactorily dealt with in the evidence — that the present disability, including the tinnitus, from which the plaintiff suffered is measured at 9%. When one looks at the Green Book table reproduced in Appendix C, it would appear that such a percentage disability would have meant that the applicant, although unable to hear woodland noise, should not have had the least difficulty in hearing whispered speech. It is, of course, the case, as already noted, that his ability to hear such speech would manifestly be affected by the background level of noise: he agreed that he had generally no difficulty in hearing telephone conversations and that his major problem arose from trying to hear conversations in crowded rooms. Yet, again, if one consults the Green Book table, one finds that he is 16% below the ‘living room’ threshold.
However, those considerations merely serve to emphasise that, in some cases at least, the Green Book, ISO 1999 and the State scale, although indispensable in setting out criteria for providing just and reasonable compensation in such cases, cannot be applied rigidly in all cases without some risk of injustice.
As to the £10,000 awarded in respect of future loss of earnings, I agree that for the reasons given by Lynch J in his judgment that part of the award should not be disturbed.
In the case of the general damages, the considerations to which I have referred, even if one were to disregard the error as to percentages already mentioned, indicate that they are excessive. Since, however, the State have accepted that, in the circumstances of the present case, the plaintiff should not be asked to repay any damages awarded to him this being in the nature of a test case to determine the appropriate method of assessing damages in such cases, I am satisfied that the award of damages arrived at by the learned High Court judge should not be interfered with and that the appeal should be dismissed.
LYNCH J:
This is an appeal by the defendants (hereafter the State) from the judgment and order of the High Court (Johnson J) delivered and made on 21 July 1998, whereby the plaintiff/respondent was awarded £50,575 damages for hearing disability suffered by him as a soldier in the National army.
In the formal order as drawn up and perfected the damages are set out under the following heads: *297
General damages to date
£24,750
General damages for future
£15,825
Loss of earnings for the future
£10,000
Total
£50,575
The State admitted liability and accordingly the action proceeded in the High Court as an assessment of damages only. The case was heard over a period of 4 days from Tuesday, 14 July to Friday, 17 July 1998, inclusive, in which world renowned experts on hearing and hearing loss from abroad gave evidence as well as Irish experts and other witnesses. The foreign experts were Professor Ronald Hinchcliff of London called on behalf of the respondent and Professor Mark Lutman of Southampton and Professor Peter Alberti of Toronto both called on behalf of the State. The learned trial judge was requested by counsel for the State to frame his judgment in such a way that in addition to doing justice as between the respondent and the State in this particular case it would also be of assistance in the just determination of other similar cases pending in the High Court and other courts. By his judgment of 21 July 1998, the learned trial judge acceded to the State’s request, in particular by formulating a schedule by reference to which any percentage hearing disability between 1% and 25% can be calculated in money terms for any plaintiff aged 30 years to 60 years inclusive. A copy of this schedule, hereafter called Schedule A, is annexed to this judgment.
The State nominally appealed against the amount of damages awarded to the respondent but the reality of the appeal is that the State contends that Schedule A is much too generous and that an alternative schedule produced by the State at the invitation of the Supreme Court is more appropriate to do justice as between the State and the respondent in this case and other plaintiffs with similar claims. A copy of the State’s schedule is annexed hereto and is hereafter referred to as Schedule B.
The factual background
The relevant facts in this case can be very shortly stated by reference to the findings of the learned trial judge which have not been challenged in any way on this appeal. They are as follows:
The plaintiff in this case is an army private who resides in Limerick and was born on 24 April 1963. After some work elsewhere he joined the army in 1980 and continues in his army career up to the present moment. In the course of his career in the army he was exposed to a great deal of gunfire, including acting as a mortar-man, without any form of ear protection, until eventually at the end of the 1980s he was given a hard plastic plug. The plaintiff has undoubtedly suf *298 fered damage and his complaints consist of the usual ones, in cases such as this, of hearing disability in noisy circumstances, and he suffers from tinnitus.
It is agreed between the parties that at the present moment he suffers a 7% disability under the formula as provided in the ‘Green Book’. The Green Book, which was introduced by legislation earlier this year, is a method of calculating impairment in terms of percentage disability.
I am satisfied that the plaintiff has suffered a great deal of discomfort to date and has had to give up his job in the officers’ mess in Limerick because of his inability to hear in crowded locations. In addition I am satisfied that he has suffered a great deal of anxiety as a result of being down graded to Grade 5 in the army, and he has deep concerns about his future in the army, in which he hopes to remain until he is 60, in case he is boarded out of the army because of hearing difficulties. The evidence of the army personnel, particularly Commandant Loftus, reduced this eventuality to at very best a possibility.
The agreed hearing disability of 7% by reference to the Green Book would equate with the hearing of an average man of about 75 or 76 years of age who has no noise induced hearing disability although for the reasons given by the learned trial judge in his judgment it may be more appropriate to say that the respondent’s hearing equates with that of a man of 60 years or thereabouts. The learned trial judge assessed the respondent’s hearing disability attributable to his tinnitus at 2% in accordance with p. 67 of the Green Book and Part I of the Schedule to the Civil Liability (Assessment of Hearing Injury) Act 1998 (hereafter the 1998 Act). No appeal is taken in relation to that finding so that the appeal proceeded in this Court on the basis that the respondent had a 9% noise induced hearing disability.
The submissions
Counsel for the State submitted as follows:
(1) In Schedule A as prepared by the learned trial judge the basic starting figure of £1,500 at age 60 years for each percentage point of noise induced hearing disability is too high.
(2) The degree of difference between the starting point of £1,500 at age 60 years and £3,000 at age 30 years for each percentage point of noise induced hearing disability is too great and is unsupported by the evidence in the case.
(3) The doubling of the basic starting point at age 60 years to £3,000 for each percentage point noise induced hearing disability from 11% to 25% is also too high and is unsupported by any evidence given during the trial.
(4) The degree of difference between the basic starting point of £3,000 at age 60 years and £6,000 at age 30 years for each percentage point of noise induced hearing disability between 11% and 25% is also too great and is un *299 supported by the evidence.
(5) A person who has a 25% hearing disability still has 75% of his hearing available to him. What that means in practical terms is described at p. 9 of the Green Book. He can still hear living room sounds and conversational speech.
(6) Accordingly the figures in Schedule B are much more appropriate and reasonable and that schedule should be adopted by the courts as a guide for the purposes of doing justice between the respondent and other similar plaintiffs and the State.
Counsel for the respondent submitted as follows:
(1) The 1998 Act is a general Act which together with the Green Book applies to all claims in respect of hearing loss and not merely to army deafness claims.
(2) The 1998 Act and the Green Book do not alter the law as to the assessment of damages for personal injuries in hearing loss cases. The law remains as stated in Barry v. Nitrigin Éireann Teo [1994] 2 ILRM 522; Bastick v. Minister for Defence, High Court 1991 No. 13843P (Barron J), 24 November 1995; Gardiner v. Minister for Defence High Court 1998 No. 1702P (Johnson J) 13 March 1998; and other like cases. The 1998 Act and the Green Book merely require that the courts should have regard to the matters therein contained.
(3) The Green Book does not specify any particular sum for any percentage point of noise induced hearing disability. The learned trial judge has applied a system of bands of ages and bands of percentage points and this is a reasonable and proper way of applying the recommendations and provisions of the 1998 Act and the Green Book.
(4) The State case changed dramatically from day one to day two. On day one the State were contending that where there was noise induced hearing loss there could not be future loss due to the ageing process. On day two they accepted that there could be such further loss and the position was as described at pp. 59–61 of the Green Book at paragraphs 7.7 and 7.8.
(5) The respondent has a very serious hearing problem. Through noise induced hearing loss at 35 years he has the hearing of a man over 70 years of age. In assessing damages in this case and providing Schedule A the learned trial judge did no more than what the State requested him to do and moreover the judgment and Schedule A have been widely applied in similar cases since July 1998.
(6) The basic starting point of £1,500 for 1% hearing disability in a man aged 60 years is taken from the judgment of Lavan J in Greene v. Minister for Defence [1998] 4 IR 464. That judgment assumed £150,000 for total deafness, giving £1,500 for 1%.
(7) In cases of catastrophic injuries the amount allowed for general damages is never really adequate compensation for the unfortunate plaintiff. That does not mean that in cases of serious but not catastrophic injuries the damages *300 must be scaled down drastically. On the contrary, the damages should be adequate to compensate such a plaintiff fully and the learned trial judge in this case has done no more than that.
Conclusions
S. 3 of the 1998 Act provides:
Judicial notice shall be taken of the report [i.e. the Green Book] in all proceedings before a court claiming damages for personal injury arising from a hearing injury.
S. 4(1) of the 1998 Act provides that in determining the hearing injuries suffered the courts ‘shall’ have regard to Chapter 7 of the Green Book and in relation to tinnitus s. 4(2) provides that ‘the courts’ shall have regard to paragraph 9 of Chapter 7 of the Green Book.
If they wish the courts could ignore the rest of the Green Book but the combination of s. 3 and s. 4 of the 1998 Act means that the courts may if they so wish and should in general have regard to the other parts of the Green Book. It would be strange if it were otherwise because in that event s.3 would really be meaningless.
The recommendations and provisions of the Green Book should therefore be adopted by the courts unless there is a reason of substance for departing from them,
Table 1 at p. 9 of the Green Book is helpful as giving a practical idea of the effect on a plaintiff of an ascertained percentage of hearing disability. What is clear however from the evidence and findings of the learned trial judge in this case is that Table 1 assumes a quiet background and one to one speech. If it were assumed that Table 1 applies where there is any significant background noise the table would be quite misleading. The learned trial judge commented in the course of the trial that this respondent was much more affected for a person of his age than the average plaintiff coming before that court and of course Johnson J has unparalleled experience of these cases and the application of the Green Book and the 1998 Act thereto.
Dr Stephen Flynn gave evidence as recorded in Transcript 1 at Questions 32 and 42 to 44 that the respondent had severe noise induced hearing loss making it difficult for him to understand conversation in a noisy location such as where there are a number of people speaking at the same time and that he had to have the television turned up louder than was comfortable for other people. Professor Peter Alberti at Transcript 3 Question 282 agreed that the respondent had suffered a dramatic change for the worse in his hearing since joining the Army but at Question 335 he described the respondent’s hearing loss as mild to moderate. Commandant Thomas O’Brien at Transcript 4 Ques *301 tion 93 said that the respondent’s hearing in military terms was more than moderately impaired.
The foregoing descriptions of the respondent’s hearing loss and the effects thereof contrast with the more benign descriptions of the effects of different percentages of hearing disability at p. 9 of the Green Book but nevertheless it is useful to bear in mind that in quiet surroundings on a one to one basis the respondent can hear whispered speech, living room and conversational speech but has such difficulties in a noisy environment that he had to give up duty serving in the officers’ mess. This was because of his inability to hear clearly orders for drinks or food or messages or whatever correctly against a background of other people speaking at the same time and the general noise to be expected in such circumstances or in any bar or place of public congregation.
It appears from uncontested evidence that noise induced hearing loss remains static once the excessive noise is eliminated or adequately protected against: the noise induced hearing loss does not recover but neither does it further deteriorate. It also appears from the evidence that noise induced hearing loss due to exposure to gun fire or other sudden loud noises causing what is known as ‘acoustic trauma’ is likely to be overtaken by age related hearing loss to a somewhat lesser extent or more slowly than noise induced hearing loss which was induced more gradually by exposure to industrial noise over a prolonged period.
The formula in Chapter 7 of the Green Book which is quoted in the schedule to the 1998 Act translates an ascertained noise induced decibel hearing loss into a noise induced percentage hearing disability. In this case it is agreed that that formula works out at 9% noise induced hearing disability including the 2% for tinnitus. The Green Book does not however give any indication as to the level or manner of compensation for such ascertained percentage noise induced hearing disability. It is for the courts to measure the appropriate compensation.
The learned trial judge produced Schedule A and made his calculations of damages in accordance therewith. As I understand his judgment the first figure of £24,750 which is described in the High Court order as drawn up and perfected as ‘general damages to date’ is in fact compensation for the 9% noise induced hearing disability as at the date of the trial and also looking backwards to include the period since the noise induced hearing disability commenced and also looking forwards into the future to age 60–62 years or thereabouts. This in my view is a correct approach to the assessment of the damages because the noise induced hearing disability was at the date of the trial ascertained and precautions had been put in place against any further noise induced hearing disability or deterioration therein which would therefore remain at 9% to that age and indeed for the rest of the respondent’s life. What then about compensation for the 9% noise induced hearing disability for the rest of the *302 respondent’s life? The answer to that question is complex and requires a consideration of age related hearing loss.
Age related hearing loss is discussed at pp. 68 and 69 of the Green Book. It is stated that such hearing loss becomes significant at the age of 70 years in males and 78 years in females. However the learned trial judge has pointed out in his judgment that the evidence before him indicated that pp. 68 and 69 of the Green Book were not completely reliable and that more accurate and reliable figures were to be found from the application of the formula at p. 6 of ISO 1999 which would indicate that age related hearing loss becomes significant from about 60–62 years in males and correspondingly later in females. I regard the formula at p. 6 paragraph 5.1 of ISO 1999 as representing age related hearing loss. In so far as the formula refers to ‘a noise exposed population’ that means the ordinary exposure to noise of people living in the modern world — for example, urban dwellers as distinct from rural dwellers in a particularly quiet countryside. See also paragraph 5.2 and annex B at p. 11 of ISO 1999:
Some subjects in the population tested have to be assumed to have had unreported occupational or other noise exposure.
In dealing with this case and similar cases arising from gun fire noise adequate ear protection or the removal of the person altogether from gun fire noise by leaving the army or otherwise will result in no further deterioration from that source of noise but will not result in any improvement in hearing. Such a person’s hearing will however continue to deteriorate with age alone and if coupled with the normal exposure to noise of modern life it will deteriorate on the basis set out in the formula in paragraph 5.1 at p. 6 of ISO 1999.
Age related hearing loss would not of course be compensable in itself as it is a natural phenomenon. As however noise induced hearing loss and age related hearing loss are to some extent both additive and overlapping, a figure for the future additive disability from about 60–62 years of age in males and correspondingly older in females may be added even though it is age related, because if the noise induced hearing loss had not been wrongly suffered in the first place by the claimant the age related hearing loss would be a minor matter, but when added to the noise induced hearing loss it is much more significant. As against that the Tables at pp. 68 and 69 of the Green Book and Part II of the Schedule to the 1998 Act provide for a deduction of percentage points from age 70 years onwards in males and 78 years onwards in females in respect of age related hearing loss.
In the present case the percentage increase in the hearing loss at 60–62 years or so was agreed by both parties in the High Court at 13% making a total hearing disability from 60–62 years or so of 22% including the 2% for tinnitus. This additional 13% was calculated by the learned trial judge at £37,500 in *303 accordance with his Schedule A and was then actuarially discounted to £15,825 being the figure for future general damages in the order of the High Court. We were told by counsel for the State that the additional percentage disability figure of 13% was in fact mistakenly and erroneously agreed by the State and that the figure should have been only 4% (presumably the additive element of the age related hearing loss?) which would indicate a discounted figure for future general damages of about £4,870. However what was agreed was agreed and it is not open to the State to seek such a reduction now, nor indeed do they really seek to do so.
Apart from that reduction to £4,870 or so reflecting the reduction from 13% to 4% it seems to me in any event that the figure of £15,825 as a discounted figure is too high. This factor of future age related hearing loss and also the continuing noise induced hearing loss should be limited to a period from age about 60–62 years to age about 70–75 years in males and from whatever is the corresponding age as per ISO 1999 and 78–83 years in females. This is because the age related hearing loss would by then in any event have more or less caught up with the noise induced hearing loss, so that the overall hearing of the plaintiff in question as at or about those ages would be much the same whether they had or had not suffered noise induced hearing loss and, therefore, neither the calculation for future age related hearing loss nor for noise induced hearing loss after 60–62 years in males and correspondingly later in females should be on a whole life basis.
The respondent was aged 35 years at the date of the High Court trial. His noise induced hearing disability was agreed at 9%. By reference to his Schedule A the learned trial judge multiplied his figure for a 35 year old man namely £2,750 × 9 giving the first general damages figures in the order of the High Court of £24,750 as already mentioned.
If one takes a man of 35 years with a noise induced disability of 17% and applies Schedule A one gets:
£2,750 × 10 =
£27,500
£5,500 × 7 =
£38,500
Total for 17% =
£66,000
Such a man can still hear whispered speech on a one to one basis. For a similarly aged man with 20% noise induced hearing disability one gets:
£2,750 × 10 =
£27,500
£5,500 × 10 =
£55,000
Total for 20% =
£82,500
*304 Such a man can still hear living room and conversational speech. Finally a similarly aged man with 25% noise induced hearing disability would get:
£2,750 × 10 =
£27,500
£5,500 × 15 =
£82,500
Total for 25% =
£110,000
Such a man can still hear conversational speech on a one to one basis.
By reference to Table 1 at p. 9 of the Green Book and not overlooking the fact that the descriptions there contained presuppose a quiet and peaceful environment these figures are much too high and increasingly so as one goes up the scale of percentage disability. The corresponding figures taken from Schedule B are:
At 9%
£12,375
At 17%
£25,781
At 20%
£30,938
And at 25%
£39,531
Before producing Schedule B the State had produced a version of Schedule A commencing with the basic starting figure of £750 for 1% noise induced hearing disability at age 60 years, increasing to £1,500 at age 30 years and £1,625 at age 25 years. The basic starting figure from 11% onwards was £938 for 1% at 60 years increasing to £1,875 at age 30 years and to £2,031 at age 25 years.
On this State version of Schedule A the State showed in brackets figures purporting to be for future noise induced hearing disability included in the foregoing figures. These figures for future noise induced disability were never adequately explained to this Court. It is however clear that they did not provide for the future beyond 60 years because the figures for 60 years showed zero in brackets. They did not therefore make provision for the cumulative effects of noise induced hearing disability and additive age related hearing disability continuing after 60 years and which I think should be provided for on the basis which I have explained above but should be limited to a period thereafter of about 10 to 15 years.
Bearing in mind the sort of problems and the social isolation endured in any sort of noisy environment by a person with the foregoing percentage noise induced hearing disabilities I am of the view that the figures in the State’s version of Schedule A and in the State’s own Schedule B are too low. They make no provision for the continuing noise induced hearing loss and the additive age related hearing loss after 60 years which by reference to pp. 68 and 69 of the Green Book would continue in the case of males to about 70–75 years *305 and in the case of females to about 78–83 years. Provision should therefore be made for 10 to 15 years’ future loss commencing in the case of males at about 60–62 years and in the case of females correspondingly higher in accordance with ISO 1999 paragraph 5. Such future loss should be limited to 10 to 15 years and should not be on a whole life basis.
The most practical and fair way of assessing the general damages past, present and future for a plaintiff such as the respondent in this case for noise induced hearing disability and for future age related hearing disability in so far as it will probably be cumulative or additive is to increase the figures in Schedule B across the board by 25%. Having made such an increase of 25% one gets the following result for the above percentages:
At 9%
£15,468
At 17%
£32,226
At 20%
£38,672
At 25%
£49,413
I am satisfied that the above figures taken from Schedule B plus 25% would provide fair, just and reasonable past, present and future general damages for any person similarly circumstanced as the respondent and with the same 9% noise induced hearing disability stated above. I am also satisfied that Schedule B plus 25% across the board would likewise afford fair, just and reasonable past, present and future general damages for any person of the ages and with the percentage noise induced hearing disabilities provided for in Schedule B in the absence of special circumstances of substance.
I should add that Schedule B as annexed to this judgment is as provided by the State and I assume but do not guarantee that there are no clerical or printing or mathematical errors therein. The State should prepare a revised Schedule B to include the additional 25% across the board, to be known as the Adjusted State Scale. Such scale might then be used as a guide, but by no means an inflexible guide, by trial judges in assessing general damages for noise induced hearing disability.
I emphasise however that this judgment is not intended to require rigid unbending adherence to the scales set out in Schedule B plus 25%. The theory of damages remains the same as it has always been. The circumstances of each individual plaintiff must be ascertained and proper compensation awarded for disabilities and disadvantages suffered by him as a result of the wrong of the defendant. It must also be remembered that the 1998 Act and the Green Book apply to ‘all proceedings claiming damages for personal injury arising from hearing loss’ and not merely to what are commonly known as Army Deafness Cases. The figures in Schedule B plus 25% provide for compensation in the *306 ordinary case from the age of the plaintiff at the time of trial by way of past, present and future general damages for the noise induced hearing disability and for future cumulative or additive age related hearing disability limited to 70–75 years of age in the case of males and to 78–83 years of age in the case of females, from which ages the overall hearing of the plaintiff in question would be more or less the same whether or not they had suffered noise induced hearing loss.
The schedules, whether Schedule A or Schedule B, deal only with the assessment of general damages in respect of noise induced hearing disability wrongly inflicted upon a plaintiff together with the added effect of age related hearing disability which, were it not for the noise induced hearing disability wrongly suffered, would not be a matter of any consequence. Obviously it may be established as a matter of probability that a particular plaintiff will suffer a loss of a realistic prospect of job opportunity while he remains in the army or on having left the army in the future, in which event of course compensation must be provided in respect of such loss. In the present case the learned trial judge allowed a sum of £10,000 to the respondent in respect of loss of opportunity to serve in the Lebanon which he had availed of on four previous occasions in the past and/or opportunities for promotion in the army. There was adequate evidence to support this finding and award by the learned trial judge in this case and accordingly this Court will not interfere with that aspect of the award.
I have already declined to interfere with the award of future general damages in the sum of £15,825 and I have just now declined to interfere with the award of £10,000 for loss of the opportunity of extra remuneration by going to the Lebanon in the future and/or loss of the opportunity of promotion in the army. That leaves only the sum of £24,750 in respect of general damages for the 9% noise induced hearing disability suffered by the respondent as a result of the wrong of the State. Strictly speaking the correct figure for that disability would be £15,468 in accordance with Schedule B plus 25% but counsel for the State has indicated that the State would not be seeking any reimbursement from the respondent irrespective of the judgment of this Court this case having been chosen as a test case by agreement of the parties and their legal advisers. In the circumstances and from a practical point of view I would therefore decline to alter the figure of £24,750 and would accordingly dismiss this appeal.
James Vincent Furlong v Waterford Co-operative Society Ltd
[1995] 1 I.L.R.M. 148
BUDD J delivered his judgment on 31 July 1992 saying: The plaintiff is a 59 year old general foreman with the defendant co-op and resides with his wife at Campile, County Wexford. His date of birth was 12 April 1933. At about 7.30 p.m. on Tuesday, 25 August 1987 he was supervising the delivery of the harvest into the grain store at the defendant’s premises in Campile. A load of dried wheat had come in and the plaintiff walked across the grid above a hopper to get a brush to ensure that the area was clear of the previous load of undried grain. The loader depicted in Mr Tennyson’s photographs Nos. 3 and 4 unfortunately had pulled away the tube on the far right side of the hopper grid in photograph No. 1 (being the tube depicted in photograph No. 2 with a kink in the right hand end of it). The plaintiff was crossing the grid in photograph No. 1 slantwise from left to right when the plaintiff’s left foot fell down the 8≤ space; he went down as far as his back; he pulled himself to the right and wedged at the small of his back. It was ‘like stepping on ice’ as there was a steel chute beneath funnelling the grain down to a drag chain beneath. Fortunately he only went down four or five feet as the side flights on the chain below would have taken off his leg if he had gone further. He said that it was as if he ‘dropped off the moon’. He got a fright. He felt ‘as if the blood was whistling out of his ears’. Two of the men tried to pull him out. He told them to stop the drag chain as he thought his foot was practically touching it. They tried again to pull him up and were not able to drag him up; they got another man and the three pulled him out. He had been terrified knowing what could happen to him if he had been caught by the flights of the 50 ton drag chain. He was brought to his GP Dr Casey and after a painkiller he was sent on to Ardkeen Hospital.
Liability is admitted and the matter is for assessment of damages only. There has been an amazing conflict in the medical opinions expressed in evidence. The case has been made over five days of evidence that the plaintiff was a malingerer who merely suffered the type of injury which should have caused him to be out from work for at most a year and that since then he was deliberately trying to deceive the medical experts and the court by fabricating his symptoms.
The plaintiff worked in the mill at Campile from 1967 until harvest time 1987. Shelbourne Co-op became part of the defendant co-op about 1978 and the plaintiff had risen over the years to become the general foreman in charge of 48 men and six lorries. He and his wife had brought up a son James and daughter Ann on their small farm of 38 acres. The plaintiff had been a very active man running a dairy herd of about 27 cows which he would milk in the morning before going to the co-op and then he would deal with them again in the evening. He and his wife enjoyed dancing and won trophies for their ballroom dancing; both enjoyed an evening out. As he said ‘I would dance on a tea plate’. He would *151 walk several miles, five or more, during his work around the co-op each day, also climbing high ladders up grain bins, and then go home and deal with his farm work which he enjoyed. He always used to like watching hurling and went to watch matches; he also used to cut the grass at times and used to grow 1½ acres of strawberries; he would also do a bit of rod-fishing but had got rid of the boat since his injury.
The plaintiff was brought by car to his GP Dr Casey and thence to Ardkeen Hospital with his left leg stiff and swollen. He was in severe pain. He was examined; X-rays showed no fracture; he was sent home where he became white and sick with pain. He got no sleep and next morning his wife rang Dr Casey who came and gave him tablets. His leg became very swollen — ‘the size of my body and the colours of the rainbow’. On Friday, 28 August 1987 Mr Khan said he would need an operation on his thigh muscle. He came back in on Sunday, 30 August 1987 and on Monday, 31 August 1987 he was given a general anaesthetic; however his blood pressure dropped and when he woke up he found the operation had had to be abandoned; and he was kept for some days in the intensive care unit. He was sick and weak and had not felt the same since. He had previously had a touch of heart problem before in 1979. This was checked out under his GP Dr Casey and he had been able to work from 1979 to 25 August 1987 without problem.
He was allowed home on 24 September 1987 on two crutches; he had to attend Ardkeen thrice weekly for physiotherapy for 16 weeks while on the two crutches; he later attended for physiotherapy twice weekly first in Ardkeen and then for 3½ years in New Ross. He was on one crutch for 1½ years and then on to a walking stick. He does exercises daily several times a day. He felt he had not improved despite physiotherapy and exercises and could not get rid of the pain in his left leg. The pain was from his left thigh up the side of his left hip. The left side of his neck pained for 3½ years and then eased and the right side got worse. He listed his daily medication which included Tenermin, Ponstan, Norgesic and a sleeping tablet. He can drive the car though head movements are difficult; he cannot drive the tractor. He can do nothing on his farm other than to walk out and look at his cows. He gets depressed at seeing the work and not being able to do it. He has hardly been out since and goes to no social functions; he and his wife used to win ballroom dancing trophies and it was hard to sit and watch the dancing at his son James’s wedding. He had not been to a hurling match for four or five years — the last time he had left the ground first out and all of the six thousand there had passed him before he reached the car. His day now was to get up, take tablets and make tea; he would go to his son’s house nearby and have tea and go down the village; after his dinner he would go out to the field to look at the cows. After tea, he would go to bed about 9 p.m. but would wake at night. Sleep was his biggest problem. In March 1991 he was *152 referred to Mr Steven Young who saw him three times and, after a scan in Beaumont, discussed a further operation with him. He was apprehensive from his previous experience. Mr Young later said that in view of the plaintiff’s experience under anaesthetic before he was acting reasonably in not subjecting himself to a back operation.
The plaintiff was cross-examined on the basis that he was a malingerer feigning symptoms. He responded that he had worked 40 years and did not like giving his farm away to his son. Pain was the problem with pain in his left leg and pain at the point of his hip as if on an electric fence. His side and the top of his hip was where the problem was. His neck was getting stiffer all the time but was not bad now. In the mornings it would be as if two needles were being stuck in. It was suggested that the plaintiff was deliberately trying to fabricate symptoms. Three photographs apparently taken by a private investigator on 14 February 1991 at New Ross of the plaintiff were put to him with the suggestion that his walking stick was for show; the plaintiff’s response was that he needed the stick in his right hand and that the end of his second blackthorn was nearly worn out. I noted the rubber ferrule was clearly well worn and that the private investigator was ‘the dog which did not bark’ in the words of the Great Detective i.e. his observations presumably had not discovered actual behaviour on the part of the plaintiff inconsistent with the plaintiff’s complaints or we would have learned of these. The private investigator did not give evidence.
Steven Young, consultant neurosurgeon, saw the plaintiff in Beaumont Hospital first on 14 March 1991. His reports dated 14 March 1991 and 13 June 1991 were handed in by agreement. He found the plaintiff’s history to be consistent both in respect of his neck and his left leg. He found straight leg raising was severely limited on the left side suggesting nerve root compression at LV 5/S 1. There was obvious muscle atrophy of the left thigh and calf muscles and weakness of ankle movements. His ankle jerk on the left side was absent. He believed the plaintiff had very significant symptoms and a significant problem. He did not believe the plaintiff was fabricating and did not think his listed findings could be fabricated except for weakness of the foot. The CT scan and EMG studies confirmed his view that the plaintiff was genuinely incapacitated. He had Dr Brian O’Moore’s EMG report dated 22 April 1991 and Dr O’Dwyer’s CT scan report dated 30 April 1991. He believed the degenerative changes found by the CT scan were precipitated or made worse by the plaintiff’s fall and the disc herniation could well be caused by the fall. He said apophyseal joints can become nobbly and compress nerve roots and after trauma this can progress more rapidly. An operation could bring pain relief and arrest deterioration but would not cure the plaintiff; he would not be able for physically demanding work. He said the plaintiff was acting reasonably, in view of his previous experience under anaesthetic, in not subjecting himself to a back operation and that his history was entirely consistent with his, Mr Young’s, findings. He was *153 particuarly struck by the plaintiff’s description of his skin feeling tight — this suggests a nerve root problem.
Dr W.B. Casey of Duncannon was the plaintiff’s GP for about 30 years until the doctor’s retirement. He said the plaintiff had a coronary attack about 1979 but had been on medication since and was able to work away with his condition well under control. The plaintiff was always a hardworking, honest man. On 25 August 1987 the plaintiff was brought by car to the doctor, he gave him an injection of morphine for a very painful leg and sent him to Ardkeen. Next day he was called to the plaintiff’s home and found he had pain in his left thigh, hip and neck and shoulder. The leg was very swollen and bruised over its entire length but especially over the knee in the quadriceps region. He saw the plaintiff again in late September 1987 when he could not use his left leg and had restricted neck movements. He had progressed very little. He was on medication for pain and sleeplessness with broken sleep patterns since the injury. He had wasted left leg muscles consistent with lack of use when measured by Dr Casey about six months ago — being 1≤ or so muscle wasting of the left leg. The complaints had been the same being:
1. Pain left thigh.
2. Pain down left leg to below the ankle.
3. Left shoulder pain.
4. Limited neck movement.
5. Sleeplessness.
6. Soreness of left hip and iliac crest.
Mark Flynn, consultant orthopaedic surgeon, gave evidence as in his three reports based on examinations of 2 August 1988, 22 January 1990 and 14 June 1990. He regarded the violent drop as sufficient to aggravate changes in the lumbar and cervical regions of the plaintiff’s spine. This was entirely consistent with the injuries found and complaints made since. He felt the tests bore out the plaintiff’s complaints and that there was objective evidence to support his complaints. He believed the plaintiff has arthritis in his neck and lower back which accounts for neck pain and left lower limb complaints. He regarded the complaints about the left leg as consistent with arthritic change noted by Dr O’Dwyer. He said that even the plaintiff’s inconsistencies were consistent. There was distribution of impairment of sensation which was difficult to account for in that the complaints did not tie in with the dermatones. However he had come across this before. With the disc bulge and degeneration of the apophyseal joints, the two combined could cause pressure on nerve roots at L.4/5 level. It was reasonably probable that the injury was the cause of the plaintiff’s present incapacity. The plaintiff could do work of a supervisory nature; he could probably drive a car but not a tractor.
Ian Wilson FRCSI handed in his report dated 6 May 1992 by agreement. On 6 May 1992 he examined the plaintiff. He found the plaintiff had some wasting *154 of the buttock on the left side. He gave evidence as in his report. He did not have the benefit of Mr Young’s opinions or sight of the CT scan or EMG results. He found a slight scoliosis of the back and the pelvis to be tilted to the right. This could be congenital or due to muscle wasting or to muscular spasm. He diagnosed a soft tissue injury which he would have expected to resolve over 2½ years. The complaints suggested an arthritic process affecting the spine and hips which he regarded as not directly related to the injury but brought to light by it. He said the plaintiff was very descriptive in his terminology and making the most of his complaints. He said the muscle wasting in the left buttock could be from nerve damage, trauma or disuse. One cause of disuse would be pain.
Dr Brian O’Moore consultant neuro-physiologist had made a report dated 22 April 1991 to Mr Young. His abnormal findings in respect of the left gastroc (calf muscle); left extensor digitorum brevis and left tibialis anterior indicated nerve damage. He suspected the sciatic nerve on the left is damaged at root level — not of gross degree. He explained that he assessed aurally and by reading oscillations on a screen; the test was a painful and unpleasant procedure involving some 15 insertions of needles; he had no problem with the plaintiff.
Margaret de Courcy, branch secretary of SIPTU in Waterford, gave evidence that there was limited opportunity for work in the Campile area. The plaintiff’s age and state of health would be factors in his obtaining even part-time work. There was 25% unemployment in the Campile area. At part-time work of 20 hours per week £50 could be earned or £60 maximum as a filling station attendant.
Mr Segrave Daly, actuary, said the value of the loss of £1 per week to 65 years for a man of the plaintiff’s age was a multiplier of 254, or 261 allowing for standard rate of tax. It was agreed the plaintiff’s gross earnings would have been £191 per week and after tax £152 net per week. Evidence was given that a caretaker or vandriver might earn £117 gross or £104 net per week. The multiplier in respect of the cost of medication for the rest of the plaintiff’s life was given as 596 for £1 per week. It was subsequently agreed that, on the assumption of the defendant’s liability therefor, the cost of medication for this injury was £6.92 per week giving a figure of £4,124.32. The actuary gave evidence and handed in his handwritten report in respect of the three alternatives in respect of pension loss. I think the appropriate figure in respect of loss of pension would be £7,524, being the difference between the pension value if no accident had occurred and the pension value given the injury came from the accident, i.e. £15,390 less £7,866; the difference or loss to the plaintiff would be £7,524.
The plaintiff was recalled and said the co-op had not offered him light work; the store had deteriorated and grain was going elsewhere now with two rivals opening. Both the store manager’s and area manager’s jobs had gone. He said *155 he had been very happy with the co-op and would be back in the morning if they had a job he could manage.
I think it is unlikely there will be a job for the plaintiff with the co-op in the future. More likely the plaintiff will manage to arrange a suitable job for himself and his condition and experience with the help of friends and family.
Mr Padraig O’Neill consultant neurosurgeon examined the plaintiff on 26 February 1992. He had not initially seen the CT scan or the EMG. The plaintiff complained that Mr O’Neill was rude to him. I suspect the plaintiff with his countryman’s caution and circumlocution and what Dr Casey described as his ‘nice way of putting things’, reacted to Mr O’Neill’s desire for precision. Mr O’Neill found him to be effusive with colourful phrases. He diagnosed the plaintiff as a conscious and deliberate malingerer. His clinical impression was very strong. He believed that if there was significant nerve damage then a CT scan of LV 3 was needed; the problem in the thigh was at a higher lumbar level i.e. LV 1 or LV 2 or LV 3. He accepted there were some injuries but many of the symptoms were functional and non-organic. His reports dated 28 February 1992 and 23 April 1992 were handed in by agreement. He did say that on the basis of the CT scan results there could be a cause of pain and if so this would be mainly back pain and one can get some referred pain down the leg on the side of the apophyseal joint (which would mean particularly the left according to the CT scan report). He said that the CT and EMG reports were nebulous and vague and do not account for the deficit which Mr Young said he had found. He felt the plaintiff should be able for his pre-injury work. He regarded the plaintiff as evasive, manipulative and defensive and ‘squeezing the lemon’ of his complaints.
Dr Cormac McNamara handed in his reports dated 23 August 1990 and 24 December 1990 by agreement. He also had available the late R.F. O’Driscoll’s report dated 22 June 1988 which was also handed in by agreement. Dr McNamara found on 22 August 1990 that the plaintiff’s left thigh was ½≤ less in diameter than the right thigh. He said the ½≤ difference in girth is consistent with injury having taken place and could be from partial use. He felt that the plaintiff was definitely malingering — he was that ‘rare bird, the true malingerer’. He believed he was feigning his disability and symptoms. He thought the plaintiff had an extraordinarily negative attitude. He did concede that sciatic nerve damage could cause muscle wasting.
I have listened carefully to the evidence and have read all the reports. There is a ferocious conflict between the medical experts. There appears to have been a lack of communication with Mr Young and Dr Brian O’Moore on the part of the experts called by the defendant bearing in mind that Mr Young in his reports suggested the plaintiff was a case for surgical relief of his nerve root compression. I was alarmed to find such lack of communication between the neurosur *156 geons when an actual operation was contemplated with the need for which Mr O’Neill strongly disagreed; he thought the plaintiff was a malingerer and he said that his clinical impression was very strong; and that if there was indeed significant nerve damage then a scan of LV 3 was needed. I was upset to think that some conference was not informally arranged and that with tact the suggestion was not made that further diagnostic tests might perhaps be helpful before an operation take place.
Counsel for the defendant has said I am driven to decide whether the plaintiff is genuine when certain of the eminent medical experts say he is a malingerer.
I accept the plaintiff’s evidence in this case. I accept as truthful his account of his injury and the aftermath on his life-style. The marked atrophy of his thigh and calf muscles found by Mr Young is corroborated by Mr O’Driscoll’s findings in 1988, Mr Flynn’s findings in 1990, Dr McNamara’s measurement in August 1990 and Mr Wilson’s finding of wasting of the left buttock.
I accept Mr Young’s finding of absent left ankle jerk indicating a problem at L5/S1. I do not believe that Dr Casey, who knew the plaintiff on his home ground over the years, Mr Flynn who is a most experienced and senior orthopaedic consultant and Mr Young, the eminent neurosurgeon, (all of whom were actually treating the plaintiff and examined him on several occasions) could have been deceived by the suggested outrageous fabrications on the part of the plaintiff. In this view I find support in objective findings:
— the muscle wasting;
— the test results taken with the totality of Mr Young’s investigations;
— Dr O’Moore’s findings of nerve damage.
I have no doubt that Mr Young would not have discussed the need for an operation unless he was convinced of the need for it. Furthermore, I doubt if the plaintiff, if a fraudulent trickster, would have subjected himself to three years of physiotherapy and all the tests and examinations which he has undergone. I believe the injury exacerbated and lit up an asymptomatic, degenerative back condition and there is also some nerve involvement as suggested by Dr Brian O’Moore.
I accept the plaintiff’s veracity and his genuine belief in his complaints. His symptoms have been somewhat disabling and have upset the plaintiff’s sleep patterns and caused much loss of self-confidence, self-respect and energy in a previously lively, sociable and hard-working man in a responsible job.
I have observed the plaintiff and his wife closely over five days in court. I am convinced of the genuineness of his complaints and of his discomfort. However I am also sure that with family support and his former resilient and hard working personality that he will pull back from his present lack of initiative and with his former energy and capacity he and his family will put his experience and capital to sound use in devising work suitable to his present capacity. I believe he will organise a supervisory type job for himself which will use his *157 experience and good contacts and bring in an income albeit of a lesser amount than as a general foreman. I regard a differential of £50 as appropriate in all the circumstances.
I accordingly assess damages as follows:
Pain and suffering to date and trauma of injury
£35,000
Future pain and suffering
£25,000
£60,000
General damages
£60,000
The agreed specials to date
£48,263
Travel
£ 2,000
Loss of earnings to date
£45,263
Doctor’s fees
£ 1,000
£48,263
Future medication
£ 4,124.32
Loss of future earnings (differential £50 × M.261)
£ 13,050.00
Loss of pension
£ 7,524.00
Total
£132,961.32.
Judgment for £132,961.32 and costs to be taxed in default of agreement.
Stay on usual terms as to interest on condition that £66,480.66 is paid over to plaintiff’s solicitor within three weeks.
SUPREME COURT
O’FLAHERTY J
(Egan and Blayney JJ concurring) delivered his judgment on 19 October 1994 saying: This is an appeal brought by the defendants from the judgment and order of the High Court (Budd J) in respect of a personal injuries claim that was brought by the plaintiff and which was at hearing for five days before Budd J in July 1992 culminating on 17 July 1992. Damages were the exclusive issue. Budd J gave a reserved judgment on 31 July setting out his findings. The short background to the case is that the plaintiff was employed by the defendants, Waterford Co-Op Society Ltd, and he met with an accident on 25 August 1987 when he had a fall through a chute which had certain frightening connotations surrounding it in that he thought his leg was in danger of being cut *158 off by contact with a moving chain. His occupation was general foreman at the co-operative. He was aged 54 at the time of the accident. Simply to recite the injuries that he sustained might give the impression that they were not too serious. They are summarised in the judgment as being essentially soft tissue injuries involving pain down his left thigh, pain down his left leg below the ankle, left shoulder pain, limited neck movement, sleeplessness, soreness of the left hip and of the iliac crest.
However, the plaintiff’s case was that his life had been wrecked in effect; that he was in constant pain; that he could not work.
The hearing, it will be clear, took place about five years after the accident. There was a sharp conflict of evidence between the plaintiff’s doctors on the one hand and the doctors called on behalf of the defendants on the other hand. Furthermore, the defendants put the plaintiff’s credibility in issue. They mounted fairly and squarely a case that he was a malingerer and a fraud and that he was seeking damages on a false premise. That was the case that was made on behalf of the defendants and made with characteristic vigour by counsel who represented the defendants at the trial. That case was rejected by the trial judge in his extremely careful judgment. He said:
I accept the plaintiff’s evidence in this case. I accept as truthful his account of his injury and the aftermath on his life-style. The marked atrophy of his thigh and his calf muscles found by Mr Young is corroborated by Mr O’Driscoll’s findings in 1988; Mr Flynn’s findings in 1990; Dr McNamara’s measurement in August 1990 and Mr Wilson’s finding of wasting of the left buttock.
He made further findings in regard to the medical evidence, preferring the evidence of the plaintiff’s doctors. Further on in his judgment he said:
I accept the plaintiff’s veracity and his genuine belief in his complaints. His symptoms have been somewhat disabling and have upset the plaintiff’s sleep patterns and caused much loss of self-confidence, self-respect and energy in a previously lively, sociable and hard-working man in a responsible job.
It is clear that this man had been a hard worker all his life. It is accepted by both sides that that is so. He also had a small farm and after the accident he felt he could no longer work and he gave up the farm and handed it over to his son. He had various recreations, such as dancing and attending sporting events and so on which he could no longer enjoy. The case he made and the case that was accepted by the judge was that his life had been devastated as a result of the accident.
The judge then went on to say:
I have observed the plaintiff and his wife closely over five days in court. I am *159 convinced of the genuineness of his complaints and of his discomfort. However I am also sure that with family support and his former resilient and hard working personality that he will pull back from his present lack of initiative and with his former energy and capacity he and his family will put his experience and capital to sound use in devising work suitable to his present capacity. I believe he will organise a supervisory type job for himself which will use his experience and good contacts and bring in an income albeit of a lesser amount than as a general foreman. I regard a differential of £50 [a week] as appropriate in all the circumstances.
Before us Mr Ryan SC has invited us to have a look at what Mr Mark Flynn, the surgeon giving the most important evidence on the plaintiff’s behalf, had to say. He makes two points. What Mr Flynn says is that perhaps the plaintiff is not as bad as he himself says that he is and that on any view that at least since January 1990, that is about 2½ years after the accident or so, that he has been, according to Mr Flynn, fit for light work. That is taking the plaintiff’s case at its height as, Mr Ryan accepts, he must. He says there is an inconsistency between the judge accepting both the plaintiff’s evidence and Mr Flynn’s evidence since there is an inherent contradiction.
While the case was conducted in a tendentious way at trial, the opposite has to be said about the way the case was presented to us on appeal. Everything was sweetness and light in the agreement that prevailed on the relevant factors that this Court should apply in approaching the findings of a trial judge. It was accepted by both sides that we are, of course, bound by the primary findings of fact made by a trial judge. He is the one who hears the evidence, experiences the atmosphere of the trial and in no case is it more essential that his judgment be respected than in a case such as this where the plaintiff’s credibility is put fairly and squarely in issue. He is not bound to accept the totality of what Mr Flynn says, he is not bound to accept the totality of what the plaintiff says, he is entitled to steer a middle course. But the point that Mr Ryan makes is that since the plaintiff was, according to Mr Flynn, fit for some form of light work at least for some time before the trial that there should be a reduction in the amount that he got for loss of earnings to date of trial which loss of earnings I will come to in a moment. Mr Ryan further submits that the plaintiff got too much for general damages. They came to a total of £60,000 and were made up as to £35,000 for pain and suffering to date; and £25,000 for the future.
To deal with the loss of earnings. That figure came to £45,263 and Mr Ryan submits that if Mr Flynn’s evidence was to be accepted in this regard, as it should be in his submission, then the proper figure under that heading is £32,500 giving him his full wages for a certain time and then bringing in the differential of £50 a week which the judge thought was appropriate.
Dealing with this latter figure first. There is undoubtedly substance in what *160 Mr Ryan says. That would have been a possible approach for the trial judge to have adopted. He did not take it and I have to ask: is there anything wrong in principle with that. He is presented with this man who says his life has been devastated and wrecked and he says, yes, he is going to be fit for some form of light work for the future but this is the moment of truth, so to speak. At the date of hearing he has not, of course, got any damages. He has not got any capital but he is going to have it in the future. I cannot see there is anything wrong in principle with that approach and therefore I would uphold his findings. I am not saying that another judge might not have steered a different course, but a trial judge doing his duty to the best of his capacity often is faced with a number of choices on how to assess damages. This is not an exact science and it is not something that admits of mathematical certainty. I would therefore uphold that aspect of the award.
As regards the damages for pain and suffering to date, £35,000. That is to cover five years and works out at £7,000 a year. The plaintiff claimed that he is really not fit for work and he has had this great deal of pain. He cannot even play bridge, he said.
Two other things have to be said: shortly after his accident in August 1987, there was an attempt made to carry out an operation in regard to his thigh injuries and after the anaesthetic had been administered the operation had to be abandoned because of the fear that he might not survive it. That must have been a very frightening experience. Then one of his doctors, Mr Young, thought it was still desirable that he have this operation but he does not want to face it. That is understandable.
I think looking at the total award of £60,000, it is at the higher end of the scale, and it may be at the very extremity of the higher end of the scale, but it is still within the scale of appropriate damages. We can only interfere, as an appeal court, if the award is outside the scale. I cannot say that there is anything wrong in principle with this finding of the trial judge either with either segment of the award or with the totality of the award. I would, therefore, uphold it. Mr Ryan has not challenged the other figures — and therefore it is not necessary to go through these. There are various items which have been set forth leading to a total of £132,961.32.
I would uphold the judgment of the High Court and dismiss the appeal.
Anne Kelly v Fergus Hennessy
1993 No. 159
Supreme Court
28 November 1995
[1996] 1 I.L.R.M. 321
(Hamilton CJ, Egan and Denham JJ)
28 November 1995
HAMILTON CJ
(Egan J concurring) delivered his judgment on 28 November 1995 saying: The facts relevant to the appeal and findings of fact in relation *324 thereto made by the learned High Court judge are set forth in detail in the judgment about to be delivered by Denham J and it is not necessary for me to set them forth in the course of this judgment.
As appears therefrom, the plaintiff/respondent (hereinafter referred to as the respondent) had claimed against the defendant/appellant (hereinafter referred to as the appellant) damages for nervous shock and for emotional and psychological distress which she alleged was caused by the negligence and breach of duty of the appellant in the driving of a motor vehicle on 14 April 1987 which was involved in a collision as a result of which the respondent’s husband and two daughters suffered severe personal injuries.
The respondent was not involved in the collision but shortly after 9.30 p.m. on that evening was informed by her niece of the fact of the collision and that her husband and two daughters were seriously injured therein.
The learned trial judge found that:
(i) the respondent immediately went into shock, became upset and commenced vomiting;
(ii) while being brought to Jervis Street Hospital, to which hospital her husband and two daughters had been brought, by neighbours, she became ill during the course of the journey;
(iii) while in hospital she saw each member of the family, each of whom was in an appalling condition;
(iv) the respondent has from that time led, what the learned trial judge described as, a traumatised existence;
(v) the respondent had suffered immediate nervous shock resulting in vomiting on receiving the telephone call concerning the accident and that this condition was gravely aggravated by the scenes she immediately thereafter witnessed in Jervis Street Hospital;
(vi) the post-traumatic stress disorder continued up to 1992 at the earliest and she continues to suffer a serious depression;
(vii) he was not satisfied, having regard to all the evidence, that the respondent will ever fully recover from what he perceived to be a clear psychiatric illness, and
(viii) the appellant had not established on the balance of probability that, because the respondent has refused to acknowledge her pain, grief and depression, she should be found guilty of a failure to mitigate her damages.
On the basis of such findings the learned trial judge held that the respondent was entitled to recover as against the appellant damages for nervous shock and assessed damages in the sum of £35,000 for the past and £40,000 for the future (see [1993] ILRM 530).
The appellant has appealed against the judgment and order of the learned trial judge on the grounds:
(1) that the learned trial judge had erred in law and in fact in holding that:
*325
(i) the appellant owed a duty to the respondent;
(ii) the injury (if any) suffered by the respondent was caused by the accident;
(iii) the respondent suffered nervous shock and post-traumatic stress disorder;
(iv) the respondent had a depressive illness at the date of the hearing;
(v) failing to hold that the injury (if any) suffered by the respondent was too remote;
(vi) the respondent was entitled to compensation for the future having regard to the evidence that the respondent would recover if she obtained the appropriate treatment and failing to hold that the respondent had failed to mitigate her loss.
(2) that the award of £35,000 was excessive and against the weight of the evidence.
In the course of his judgment in McLoughlin v. O’Brian [1983] 1 AC 410 (hereinafter referred to as McLoughlin’s case) Lord Wilberforce stated at p. 418:
While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for ‘nervous shock’ caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself.
The cases seem to establish that in order to succeed in an action for damages for nervous shock a plaintiff must establish the following:
1. The plaintiff must establish that he or she actually suffered ‘nervous shock’. This term has been used to describe ‘any recognisable psychiatric illness’ and a plaintiff must prove that he or she suffered a recognisable psychiatric illness if he or she is to recover damages for ‘nervous shock’.
In this case it was found by the learned trial judge that the respondent did suffer the psychiatric illness of post-traumatic stress disorder and such finding was accepted by counsel on behalf of the appellant. Consequently, the respondent had discharged her onus in that regard.
2. A plaintiff must establish that his or her recognisable psychiatric illness was ‘shock induced’.
This principle was enunciated in the Australian case of Jaensch v. Coffey (1984) 155 CLR 549, by Brennan J as follows (at p. 565):
A plaintiff may recover only if the psychiatric illness is the result of physical injury inflicted on him by the defendant or if it is induced by ‘shock’. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant’s carelessness.
Brennan J gave two examples where there would be no recovery (at p. 565): *326
The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation: a parent made distraught by the wayward conduct of a brain-damaged child and who suffers psychiatric illness as a result has no claim against the tortfeasor liable to the child.
Counsel on behalf of the appellant herein, while conceding that the respondent suffered from a post-traumatic stress disorder, submitted that this condition was not caused by the shock of hearing of the collision and learning of and seeing the condition of the injured members of her family but by the self-induced strain of caring for her husband and daughter and consequently was not sufficiently proximate to the negligence of the appellant.
This submission will be dealt with by me at a later stage.
3. A plaintiff must prove that the nervous shock was caused by a defendant’s act or omission.
There is no doubt having regard to the findings of the learned trial judge but that the respondent herein has established that the nervous shock suffered by her was due to the defendant’s negligence. She has clearly established that the circumstances of the accident and the appalling injuries suffered therein by her husband and two daughters caused or materially contributed to the nervous shock.
4. The nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff.
This view was clearly expressed by Keane J in Jaensch v. Coffey as being the present state of the law when he said that a duty of care (and hence liability for nervous shock) will not exist unless ‘the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness caused the injury’.
The respondent has established that the nervous shock sustained by her was by reason of the appalling injuries sustained by her husband and two daughters which were caused by the negligence of the appellant and which she saw on the occasion of her visit to Jervis Street Hospital and subsequently.
5. If a plaintiff wishes to recover damages for negligently inflicted nervous shock he must show that the defendant owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock.
It is not enough to show that there was a reasonably foreseeable risk of personal injury generally. Deane J stated in Jaensch v. Coffey, already cited (at p. 604), that:
a duty of care will not arise unless risk of injury in that particular form [i.e. psychiatric injury unassociated with conventional physical injury] was reasonably foreseeable.
*327
Though the issue of foreseeability was not an issue argued in the course of this appeal, it is relevant in the context of determining the nature of the duty owed by the appellant to the respondent.
The respondent, in this case, has established a chain of causation from the appellant’s negligence in causing serious personal injuries, with appalling consequences, to her husband and at least one of her daughters, to her nervous shock and shock induced psychiatric illness.
Was the fact that such nervous shock would be suffered by the respondent reasonably foreseeable by the appellant?
It was stated by Brennan J, now Chief Justice of Australia, in the case of Jaensch v. Coffey, already referred to (at p. 563), that:
It is not necessary that the precise events leading to the administration of the shock should be foreseeable. It is sufficient that shock and a psychiatric illness induced by it are reasonably foreseeable.
and
It is not necessary for a plaintiff to prove that a reasonable man in the defendant’s position could foresee that any particular psychiatric illness might be caused by his conduct; it suffices that he could have foreseen that his conduct might cause some recognised psychiatric illness by shock.
In the course of his judgment in McLoughlin’s case Lord Bridge of Harwich stated (at p. 432):
The judges, in all the decisions we have been referred to, have assumed that it lay within their own competence to determine whether the plaintiff’s ‘nervous shock’ (as lawyers quaintly persist in calling it) was in any given circumstances a sufficiently foreseeable consequence of the defendant’s act or omission relied on as negligent to bring the plaintiff within the scope of those to whom the defendant owed a duty of care.
The question of who came within the scope of those to whom a defendant owed a duty of care has arisen in many cases and is the subject of continuing debate.
However, the question relevant to this appeal is whether the respondent came within the scope of the appellant’s duty of care and the fact that she does so is not in issue.
As stated by Lord Atkin in Donoghue v. Stevenson [1932] AC 562 at p. 580 of the report:
At present I content myself with pointing out that in English law there must be, *328 and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of ‘ culpa ’, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
There is no doubt but that nervous shock and a psychiatric illness induced by it are reasonably foreseeable consequences of the appellant’s negligence in this case.
Nor is there any doubt but that the respondent came within the appellant’s duty of care.
The acts of negligence on the part of the appellant which occasioned the injuries to her husband and two daughters occurred out of sight and earshot of the respondent.
However, the law permits of the recovery of damages for nervous shock and psychiatric illness induced thereby where a plaintiff comes on the immediate aftermath of the accident.
The relationship between the plaintiff and the person injured must be close.
As stated by Gibbs CJ in Jaensch v. Coffey (at p. 555):
where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate … it is readily defensible on grounds of policy to allow recovery.
Lord Wilberforce in the course of his judgment in McLoughlin’s case stated at p. 422:
The closer the tie (not merely in relationship, but in care) the greater the claim for consideration.
Even though in McLoughlin’s case and in Jaensch v. Coffey, the plaintiffs were able to recover damages for nervous shock which they suffered as a result *329 of injuries to members of their respective families which were not inflicted in their sight or hearing, nevertheless both the House of Lords and the High Court of Australia emphasised that the plaintiffs were present at, and personally perceived the aftermath of the accident.
Both the House of Lords and the High Court of Australia held that it was sufficient that the psychiatric illness which the plaintiffs suffered was as a result of what the plaintiffs saw or heard in the aftermath of the accident at the scene or even at the hospital where the injured relatives were taken as a result of the accidents.
As Brennan J stated (at p. 578):
liability cannot rationally be made to depend upon a race between a spouse and an ambulance….
The respondent’s ties with her husband and daughters could not be closer and the effect of the learned trial judge’s judgment in this case is that the nervous shock and psychiatric illness suffered by the respondent was caused to her by what she learned in the phone call from her niece in the immediate aftermath of the accident and what she heard and saw at the hospital immediately thereafter.
If the learned trial judge’s finding in this regard is correct, then the respondent is entitled to recover damages and this appeal must be dismissed.
Counsel on behalf of the appellant, however, submitted that, while the respondent did suffer nervous shock and a post-traumatic stress disorder and depression, such post-traumatic stress disorder and depression was not caused in the aftermath of the accident but by the events subsequent thereto, the grief and worry caused by serious injuries to her husband and daughters, the constant visits to the hospital and the strain imposed on her by the necessity to care for her husband and daughter after their discharge from hospital.
He submitted that an illness caused in such circumstances did not come within the proximity rule and that public policy required that the respondent’s claim for damages be excluded.
There is no public policy that the respondent’s claim, if substantiated, should be excluded.
As stated by Lord Russell of Killowen in McLoughlin’s case at p. 429 of the report:
But in this case what policy should inhibit a decision in favour of liability to the plaintiff? Negligent driving on the highway is only one form of negligence which may cause wounding or death and thus induce a relevant mental trauma in a person such as the plaintiff. There seems to be no policy requirement that the damage to the plaintiff should be on or adjacent to the highway. In the last analysis any policy consideration seems to be rooted in a fear of floodgates *330 opening, the tacit question: what next? I am not impressed by that fear — certainly not sufficiently to deprive this plaintiff of just compensation for the reasonably foreseeable damage done to her. I do not consider that such deprivation is justified by trying to answer in advance the question posed ‘What next?’ by a consideration of relationships of plaintiff to the sufferers or deceased, or other circumstances; to attempt in advance solutions, or even guidelines, in hypothetical cases may well, it seems to me, in this field, do more harm than good. I also would allow this appeal.
In the course of the trial herein the learned trial judge heard the evidence of the respondent and other witnesses, in particular, Dr Michael Corry, consultant psychiatrist, on behalf of the respondent, and Dr John A. Ryan, consultant psychiatrist on behalf of the appellant.
The assessment of such evidence is a matter for the learned trial judge and he stated (at p. 533) that:
I accept, therefore, that the plaintiff’s personality and her lifestyle has been changed utterly by virtue of the events, the subject matter of this case. I accept Dr Corry’s evidence.
and went on to state as follows:
I am, therefore, satisfied that the plaintiff suffered immediate nervous shock resulting in vomiting on receiving the telephone call concerning her family’s accident. This condition was, in my view, gravely aggravated by scenes she immediately thereafter witnessed in Jervis Street Hospital.
I am satisfied that the post-traumatic stress disorder which Dr Corry has given evidence of continued up to 1992, at the earliest. I accept that the plaintiff continues to suffer a serious depression. I doubt, having regard to all of the evidence, that I could be satisfied that she will ever fully recover from what I perceive to be a clear psychiatric illness. On the evidence adduced by the defendant, I do not accept that he has established on the balance of probability that, because this plaintiff has refused to acknowledge her pain, grief and depression, I ought to hold her guilty of failure to mitigate her damages.
With regard to these findings the only issue before this Court is whether or not there was credible testimony before the learned trial judge to justify such findings and inferences.
As stated by McCarthy J in Hay v. O’Grady [1992] 1 IR 210 at p. 217; [1992] ILRM 689 at p. 694:
The role of the this Court, in my view, may be stated as follows:
1. An appellate court does not enjoy the opportunity of seeing and hearing the *331 witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes LJ in Gairloch, The SS, Aberdeen Glenline Steamship Co. v. Macken [1899] 2 IR 1, cited by O’Higgins CJ in People (Director of Public Prosecutions) v. Madden [1977] IR 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
It is clear from a consideration of the evidence in this case there was credible testimony to support the findings of the learned trial judge that the respondent suffered nervous shock in the immediate aftermath of the accident which was due to the negligence of the appellant, that as a result thereof she suffered a post-traumatic stress disorder and depression: that these conditions were induced by such nervous shock. Consequently, it is not open to this Court to interfere with such findings.
I would disallow the appeal on these grounds.
In addition the appellant has appealed against the finding by the learned trial judge that the respondent, by not having treatment for her depressive condition which would prove beneficial and aid her recovery, had not failed to mitigate her damages.
There is a duty on all plaintiffs to take all reasonable steps to mitigate the damages or loss which they claim against another party.
The duty is to take all reasonable steps having regard to the nature of their injuries or illness and the circumstances of the case and the onus is on the defendant to establish such failure on the balance of probabilities.
The respondent in this case has provided an explanation for her failure so to do, which the learned trial judge accepted.
There was evidence before the learned trial judge which entitled him to accept the explanation and this ground of appeal also fails.
The appellant has also appealed to this Court on the grounds that the damages awarded by the learned trial judge were excessive.
*332
The learned trial judge had awarded the sum of £35,000 by way of damages to the date of hearing and £40,000 in respect of the future.
Having regard to the evidence with regard to her condition between the date of the accident and the date of the hearing as found by the learned trial judge, I cannot find that the damages awarded in respect of that period by the learned trial judge were excessive or so excessive as to justify this Court in interfering therewith and would dismiss the appeal in respect of this award.
With regard to damages for the future, the respondent was at the date of the hearing 52 years of age and the learned trial judge found that she continued to suffer from a serious depression and that having regard to all of the evidence, he doubted whether he could be satisfied that she will ever fully recover from what he perceived to be a clear psychiatric illness.
The onus was on the respondent to establish on the balance of probabilities that she would not recover from this illness and if she had discharged this onus I would have no hesitation in accepting that the amount awarded by the learned trial judge was fair and reasonable.
The learned trial judge however does not appear to have been so satisfied and refers to a full recovery. He appears to anticipate at least a partial recovery.
In these circumstances, I consider the award of £40,000 to be excessive and would substitute an award of £20,000 under this heading for damages.
DENHAM J:
This is an appeal by the defendant/appellant (hereinafter referred to as the appellant) against a judgment of the High Court delivered on 30 March 1993. The learned High Court judge found that the plaintiff/respondent (hereinafter referred to as the respondent) was entitled to recover damages against the appellant for ‘nervous shock’.
On 14 April 1987, the appellant, while driving his car in County Dublin, collided with a motor car wherein Thomas Kelly and his two daughters were travelling and as a result Thomas Kelly and his daughters suffered severe personal injuries, loss and damage for which they have recovered damages against the appellant, which sum for damages includes the cost of future care. The respondent was not within sight or sound of the accident, however, she claims that arising therefrom she suffered injury which was caused by the negligence of the appellant.
On that evening the respondent’s husband and two daughters had left home to travel to Dublin Airport to meet a niece of the respondent’s off a plane. After 9.30 p.m. the niece telephoned the respondent and told her that her husband and two daughters had been seriously injured in a road traffic accident. The learned trial judge found that on receipt of that telephone call ([1993] ILRM 530 at p. 532):
The [respondent] immediately went into shock, became upset and commenced *333 vomiting. She was taken to Jervis Street Hospital by her neighbours to see her family…. When at Jervis Street Hospital she saw her family, each of whom [was] in an appalling condition and one of whom she has described as looking like ‘minced meat’.
The respondent’s family remained in hospital for some time: her husband and daughter Adrienne until July 1987, her daughter Shirley Anne until April, 1988. The time during which they were in hospital was traumatic for the respondent.
The respondent’s husband has been left brain damaged, and is now at home where she cares for him. Her daughter Shirley Anne is also permanently brain damaged and at home and continues to pose major management problems for the respondent. Adrienne has made a full recovery from her injuries. While the respondent’s husband and Shirley Anne have received damages for their injuries from the appellant which includes the cost of their care (which will be permanent) the respondent will not take in trained help. She believes she should not hand their care to another person. She feels that she cannot let go, and that if she did ‘let go’ she would never recover.
The learned trial judge found the respondent to be a genuine witness and caring human being whose personality and lifestyle have been utterly and disastrously changed. There was conflicting medical evidence and the court preferred that of Dr Corry concluding (at p. 533):
I am, therefore, satisfied that the [respondent] suffered immediate nervous shock resulting in vomiting on receiving the telephone call concerning her family’s accident. This condition was, in my view, gravely aggravated by the scenes she immediately thereafter witnessed in Jervis Street Hospital.
I am satisfied that the post-traumatic stress disorder which Dr Corry has given evidence of continued up to 1992, at the earliest. I accept that the [respondent] continues to suffer a serious depression. I doubt, having regard to all of the evidence, that I could be satisfied that she will ever fully recover from what I perceive to be a clear psychiatric illness. On the evidence adduced by the [appellant], I do not accept that he has established on the balance of probability that, because this [respondent] has refused to acknowledge her pain, grief and depression, I ought to hold her guilty of a failure to mitigate her damages. I accept the [respondent’s] explanation.
… I, …, find that this [respondent] is entitled to recover as against the [appellant] for nervous shock.
For pain and suffering to date, I would award a figure of £35,000. For pain and suffering in the future, I would award a figure of £40,000.
Submissions
While a wide-ranging notice of appeal was filed, the issues argued before the court were more restricted. Mr Kevin Haugh, SC, on behalf of the appellant; *334 accepted that there was credible evidence that the respondent did suffer the psychiatric illness of post-traumatic stress disorder but submitted that her illness was not related sufficiently to the accident but rather to the events in the weeks and months thereafter. He argued that in these circumstances where the cause was not the immediate traumatisation but that rather it occurred over the months after the accident that the respondent was outside the contemplation of the appellant. He distinguished Mullally v. Bus Éireann [1992] ILRM 722, and submitted that public policy requires that the respondent be excluded.
On the matter of quantum he argued that there was a clear failure to mitigate loss by the respondent. He submitted that during the year after the accident it was reasonable that the respondent’s family would be her main concern, but that after Shirley Anne was discharged home from hospital there was time for her to consider her own needs and that at that stage there was a clear failure by her to mitigate loss. She did not seek appropriate treatment for herself, which was a failure to mitigate her loss: it was not a foreseeable consequence that the appellant must pay for longer care because the respondent refuses genuinely but unreasonably to get treatment. He submitted that the award of £35,000 for six years’ suffering would be unreasonable and not legally appropriate because of the evidence that she could have been cured earlier if she had taken the care urged on her.
Addressing the issue of the respondent’s depression he submitted that Dr Corry had an inappropriate definition of psychiatric illness. Mr Haugh drew attention to the evidence of the respondent’s problems with the care of her husband, her lack of social interest, her lack of recreation, and submitted that she was not after 1992 suffering from a psychiatric illness. He argued that it was perverse of the learned trial judge to find the respondent was suffering from a psychiatric illness at the time of trial because Dr Corry gave an inappropriate definition of ‘psychiatric illness’: a life event was not a psychiatric illness. He submitted that the learned trial judge erred in fact in holding (by reason of an inappropriate definition of psychiatric illness) that she was entitled to damages for nervous shock where the post-traumatic stress disorder had gone and that at that stage she was suffering from anxiety and depression. He submitted further that if the respondent is entitled to general damages from the date of the hearing £40,000 is grossly excessive, because if she took remedial care (according to the evidence) she would recover. He pointed out that her genuineness was not in issue but that it must be objectively reasonable.
Mr Paul O’Higgins SC, for the respondent, submitted that to approach the case on the floodgates principle was to overstate this case. The post-traumatic stress disorder of the respondent was not in issue. He referred to the situation at the hospital, describing it as devastating, and Dr Corry’s evidence as to the respondent’s exposure to the trauma surrounding the accident and her reactions at that time. Mr O’Higgins said that while this case was not conformable to the *335 Mullally case that it was not to be distinguished on principle. In this case it was conceded that the respondent had had post-traumatic stress disorder. He argued that the disorder occurred proximate to the accident. Mr O’Higgins submitted that there was no break in the trauma from when the respondent learned of the accident; that the learned trial judge found post-traumatic stress disorder which it is conceded by the appellant he could so find; that all the evidence relates back to the accident. He argued that for someone in the close nexus of the appellant to the injured husband and daughter she is very nearly in the position of a rescuer. He said that the courts should not concern themselves about public policy; that is for the legislature. On the quantum of damages he said they ought to reflect only a small part of the disaster for the appellant, i.e., her post-traumatic stress disorder and the depression. In that context the award of damages was modest.
Nervous shock
‘Nervous shock’ is a legal term used to connote a mental as opposed to physical injury to a person. It has been accepted in Irish law that such an injury can be the subject of damages. The term was used over a hundred years ago and accepted: see Byrne v. Great Southern and Western Railway Company of Ireland, Irish Court of Appeal, February 1884 and Bell v. Great Northern Railway Company of Ireland (1890) 26 LR Ir 428.
‘Nervous shock’ is a mental injury, being a recognisable and distinct psychiatric illness: Hinz v. Berry [1970] 2 QB 40 at p. 42. It is a term to be contrasted to mental distress, fear, grief or sadness.
In this case neither the law on mental illness nor the fact of the post-traumatic stress disorder are in issue. It was conceded by counsel for the appellant that the respondent did suffer post-traumatic stress disorder.
Victim
The respondent was not a primary victim; that is to say she was not a participant in the accident. Her case is that she is a secondary victim; that is to say one who did not participate in the accident, but was injured as a consequence of the event.
Foreseeability
There was no issue before the court in the appeal on foreseeability. The matters for decision rest elsewhere.
Proximity
This case turns on the issue of proximity. There are several aspects of proximity. These may include: (a) proximity of relationship between persons; (b) proximity in a spatial context; and (c) proximity in a temporal sense.
*336
(a) Proximity of relationships
The proximity of relationship between the primary victim and the secondary victim is a critical factor. In this case there is a close relationship between the persons injured in the accident and the appellant. This concept was not an issue before the court.
(b) Spatial proximity
It is evident that the respondent was not at the scene of the accident. However, she was told of the event on the telephone shortly thereafter, and she went immediately to the hospital. She viewed her loved ones who were in a very serious condition. She perceived the aftermath of the road traffic accident in the hospital. These facts are not in contention.
(c) Temporal proximity i.e., proximity in time
It is on the issue of proximity in time that this case turns. The appellant’s case is that the post-traumatic stress disorder arose later in time than the accident, that it arose as a result of the events in the weeks and months after the accident.
The learned trial judge stated (at p. 533):
I am, therefore, satisfied that the [respondent] suffered immediate nervous shock resulting in vomiting on receiving the telephone call concerning her family’s accident. This condition was, in my view, gravely aggravated by the scenes she immediately thereafter witnessed in Jervis Street hospital.
I am satisfied that the post-traumatic stress disorder which Dr Corry has given evidence of continued up to 1992, at the earliest.
… I …find that this [respondent] is entitled to recover as against the [appellant] for nervous shock.
It was conceded by counsel for the appellant that the respondent suffered from a post-traumatic stress disorder some time after the accident. It was appropriate for Mr Haugh to so concede, in view of the facts found by the learned trial judge on the evidence and the jurisprudence of this Court: see Hay v. O’Grady [1992] 1 IR 210 at p. 217; [1992] ILRM 689 at p. 694. This case falls to be determined on the very precise issue as to the temporal proximity of the post-traumatic stress disorder, i.e. when did the post-traumatic stress disorder occur: did it arise after the accident or some weeks or months later? This is a question of fact. Several matters are relevant to this issue.
First, to take the common sense approach. The illness in question arises as a result of a shock, of exposure to a trauma far outside the usual range of experience. There is no doubt that the accident exposed the respondent to such a trauma.
Secondly, the learned trial judge has found a continuum of nervous stress, *337 post-traumatic stress disorder, and depression from the accident. That continuum is based on credible evidence before the court.
Thirdly, the finding of the learned trial judge is as to an immediate ‘nervous shock’ and then he refers to post-traumatic stress disorder. The shock is the trigger for the following events. There is evidence from Dr Corry that the psychiatric illness developed in the initial few days when the patients were in hospital. Dr Corry was asked:
Question: Can I just ask you to expand on that. When you talk about the traumatic stress issue and subsequent depression in the first place, to what do you relate these?
Answer: Very much to her exposure to the trauma that surrounded the accident, the sudden news being told in the hospital. I mean, it was an event way outside her normal range of experience and basically the fact that she was having intrusive thoughts relating to the incident. She could not get the incident out of her mind. She had nightmares about the hospital, nightmares of Shirley Anne being on the ventilator. I mean, all the criteria of what we would call a post-traumatic stress.
(See transcript, 25 February 1993 at question 148).
Also the respondent’s evidence, accepted by the learned trial judge, as to her sleep pattern in the immediate days after the accident:
I was not sleeping at all. Well, broken sleep for a few minutes, every time I would wake up. Even without waking up when I would be asleep I would hear those bleeps going all the time from the life support machine and also I was hearing the telephone ringing….
… I actually heard it [the telephone] ringing but when I got down it was not ringing. I actually rang the hospital and said ‘did you ring, I heard the phone’ and they said in intensive care no, nobody rang.
(See transcript, 25 February 1993, question 53 et seq.)
There was the above and other evidence upon which the High Court could (and did) conclude that the post-traumatic stress disorder occurred at a time proximate to the accident. These are facts found on credible evidence. It is clear from the text and context of the judgment that the learned trial judge used the term ‘immediate nervous shock’ to indicate the immediate reaction to the accident, the shock, which, together with the aftermath, triggered the onset of the post-traumatic stress disorder.
*338
Law
The law on the issue is to be found in common law. It is useful to consider cases in other jurisdictions. In McLoughlin v. O’Brian [1983] 1 AC 410, the plaintiff’s husband and three children were involved in a road accident. One of the plaintiff’s children was killed and her husband and other children seriously injured. When the accident occurred the plaintiff was two miles away, at home. She was told of the accident by a motorist who had seen it and brought to hospital where she saw her seriously injured husband and two children, and heard her daughter had been killed. As a result of seeing and hearing the results of the accident, the plaintiff suffered nervous shock: a psychiatric illness. The House of Lords allowed her appeal holding that the nervous shock had been the reasonably foreseeable result of the injuries to her family caused by the defendant’s negligence.
Lord Bridge of Harwich stated (at p. 433):
The question, then, for your Lordships’ decision is whether the law, as a matter of policy, draws a line which exempts from liability a defendant whose negligent act or omission was actually and foreseeably the cause of the plaintiff’s psychiatric illness and, if so, where that line is to be drawn. In thus formulating the question, I do not, of course, use the word ‘negligent’ as prejudging the question whether the defendant owes the plaintiff a duty, but I do use the word ‘foreseeably’ as connoting the normally accepted criterion of such a duty.
After analysing the authorities he stated (at p. 441):
In approaching the question whether the law should, as a matter of policy, define the criterion of liability in negligence for causing psychiatric illness by reference to some test other than that of reasonable foreseeability it is well to remember that we are concerned only with the question of liability of a defendant who is, ex hypothesi, guilty of fault in causing the death, injury or danger which has in turn triggered the psychiatric illness. A policy which is to be relied on to narrow the scope of the negligent tortfeasor’s duty must be justified by cogent and readily intelligible considerations, and must be capable of defining the appropriate limits of liability by reference to factors which are not purely arbitrary…. On the one hand, if the criterion of liability is to be reasonable foreseeability simpliciter, this must, precisely because questions of causation in psychiatric medicine give rise to difficulty and uncertainty, introduce an element of uncertainty into the law and open the way to a number of arguable claims which a more precisely fixed criterion of liability would exclude. I accept that the element of uncertainty is an important factor. I believe that the ‘floodgates’ argument, however, is, as it always has been, greatly exaggerated….
*339
At p. 443:
My Lords, I have no doubt that this is an area of the law of negligence where we should resist the temptation to try yet once more to freeze the law in a rigid posture which would deny justice to some who, in the application of the classic principles of negligence derived from Donoghue v. Stevenson [1932] AC 562, ought to succeed, in the interests of certainty, where the very subject matter is uncertain and continuously developing, or in the interests of saving defendants and their insurers from the burden of having sometimes to resist doubtful claims.
Lord Wilberforce took a more restricted view and held that the application of the reasonable foreseeability test for nervous shock cases should be limited in terms of proximity. The proximity has three elements: the proximity of the tie or relationship between the plaintiff and the injured person; the proximity of the plaintiff to the accident in time and space; and the proximity of the communication of the accident to the plaintiff, either through sight or hearing of the event or its immediate aftermath.
In Australia, in Jaensch v. Coffey (1984) 155 CLR 549, a wife, who was not at the scene of the road traffic accident was brought to hospital where she saw her husband who was ‘pretty bad’. Next morning he was in intensive care, she was told he had taken a change for the worse, and she was required to come to hospital as quickly as possible. Her husband survived but she suffered nervous shock as a result of what she had seen and been told. The driver of the car was held to owe a duty of care to her and it was found that he had been in breach of that duty. Gibbs CJ stated (at p. 555):
In the present case there was a very close relationship, both legal and actual, between the respondent and her husband. She was notified of the accident, and went to the hospital, as soon as practicable on the evening when it occurred. She personally perceived the aftermath of the accident, although not at the scene but at the hospital.
… She was, in my opinion, a ‘neighbour’ of the appellant within Lord Atkin’s principle; it was foreseeable that a person in her position would suffer nervous shock, and there is no reason of policy why her claim should not succeed.
A number of other members of the High Court of Australia held views similar to those of Lord Bridge in McLoughlin v. O’Brian.
In this jurisdiction in Mullally v. Bus Éireann [1992] ILRM 722, it was found as a fact that the plaintiff, the wife and mother of primary victims, who was not at the scene of a serious bus accident but viewed its aftermath in hospitals, suffered the psychiatric illness of post-traumatic stress disorder which was triggered by the news of the accident and her experiences in its aftermath, the *340 illness manifesting itself two days after the accident, was entitled to damages.
I have considered the above cases, and the ‘neighbour’ principle in Donoghue v. Stevenson [1932] AC 562. It is not necessary in this case to choose between either the general or the more restricted approach in common law. I have used the cases to isolate factors which are relevant in law and applied these factors to the facts of this case.
The relationship of the respondent to the victims who were participants in the accident could not be closer, the victims were her daughter and husband who with her formed a close loving family. The respondent was drawn into the trauma by a telephone call. She went to the hospital as soon as practicable. She saw the seriously injured victims in the immediate aftermath of the accident when they were in so serious a state of injury as to be disturbing to the normal person. She was told of the serious nature of the injuries of her husband, but especially the serious injuries of her daughter Shirley Anne.
I am satisfied that a person with a close proximate relationship to an injured person, such as the respondent, who, while not a participant in an accident, hears of it very soon after and who visits the injured person as soon as practicable, and who is exposed to serious injuries of the primary victims in such a way as to cause a psychiatric illness, then she becomes a secondary victim to the accident. In reaching these determinations it is necessary to review the accident and immediate aftermath in an ex post facto way to test the situation.
In this case, the learned trial judge used the legal term ‘nervous shock’ which is recognised legal terminology for a medically recognised psychiatric illness resulting from shock. On the facts as found by the learned trial judge, on the evidence before the court, in view of the concession (quite rightly in my view) by counsel that the respondent did have post-traumatic stress disorder, in view of her proximity in relationship, space and time, and in view of the principles in Hay v. O’Grady, it is not open to this Court to interfere with the decision of the learned trial judge as to liability.
Mr Haugh also submitted that Dr Corry’s definition of psychiatric illness was inappropriate. I have considered his evidence carefully. Inter alia, he was asked:
Can I ask you this, is post-traumatic stress disorder a psychiatric condition in itself?
To which he answered:
Well, I suppose any condition that brings about symptomatology where somebody is anxious all the time, and depressed, having nightmares, intrusive thoughts relating to the incident, I think you call that a psychiatric condition, depression, anxiety, tension, irritability, difficulty sleeping. I mean, I do not know what else is psychiatric condition if that is not.
(See transcript, 25 February 1993, question 150)
*341
Later he was examined by Mr Haugh SC who having set out the respondent’s happy family life prior to the accident asked:
Q: After the accident all that is changed. She now has responsibility she never had previously. She now has a routine that is not enjoyable, she has to mind her husband and daughters. She has no one to go out with in the evening and none of the concerts or theatre or cinema. She has to cook and care for and bath her husband. All of these things, I am suggesting these things would make anybody angry, would make anybody tense, would make anybody irritable. Would you accept that?
Dr Corry answered: ‘Yes, I would.’
Mr Haugh then stated:
And you can have all of these things, I suggest, in the proportion in which she has them without being psychiatrically ill?
To which Dr Corry responded:
Well, this is probably a very philosophical question, to what is mental illness. To my own sense of mental illness, mental illness is a manifestation of the kinds of experience people have in life. People do get sick when they lose their jobs, people do get depressed when somebody dies belonging to them, serious life events are to me the causation of what we call mental illness.
When the above is read in the context of the entire body of evidence of Dr Corry it is not such as to negate the medical evidence and it is clear that the learned trial judge had evidence upon which to hold that the respondent suffered from a psychiatric illness, namely, post-traumatic stress disorder. Indeed this illness is not in dispute. It is clear from the evidence that Dr Corry grounded the respondent’s illness in the events surrounding the accident. Thus, there was evidence upon which the learned trial judge could hold the post-traumatic stress disorder was caused by the events immediately surrounding the accident.
Depression
The same considerations apply to the evidence of Dr Corry as to the respondent’s psychiatric illness of depression. There was oral evidence which was credible upon which the learned trial judge could make his findings of fact.
Quantum
On the issue of quantum of damages there was no real contest as to the sum for the post-traumatic stress disorder, which is not excessive. The matters in contest are the damages for the depression from approximately 1992 and for the future.
*342
The learned trial judge had credible evidence upon which to reach his conclusion that the respondent did not fail to mitigate her damages. Her actions were consistent with her illness.
The learned trial judge held, on credible evidence, that:
I accept that the plaintiff continues to suffer a serious depression. I doubt, having regard to all of the evidence, that I could be satisfied that she will ever fully recover from what I perceive to be a clear psychiatric illness.
The fact that the respondent may never fully recover implies that she may partially recover. A psychiatric illness from which there is partial recovery remains a serious problem, and this fact was clearly taken into consideration by the learned trial judge when he determined the quantum.
In these circumstances the sum is not excessive or so excessive as to warrant interference by this Court.
I would dismiss the appeal on all grounds.
Marian Greene v Hughes Haulage Ltd and Gerard Coleman
High Court
28 June 1997
[1998] 1 I.L.R.M. 34
(Geoghegan J)
GEOGHEGAN J
This is an action for personal injuries arising out of a motor accident which occurred on 10 June 1991. The car driven by the plaintiff came into collision with a juggernaut truck and the plaintiff was for some time trapped in her own car. Liability has been determined at 50% in other proceedings and therefore this Court is only concerned with an assessment of damages. Judgment will be given for 50% of the sum so assessed.
It is quite clear to me from the evidence that this accident has had very serious consequences indeed for the plaintiff. From being a well paid and ambitious professional in an executive role she is now in a debilitated state. Although she did have genuine physical injuries, I am satisfied that the most serious consequence of this accident is that she has suffered from some kind of post traumatic disorder involving what has been described as post traumatic migraine. The facts of the accident were horrific. It was a collision between a car driven by the plaintiff and what she describes as a huge juggernaut. She became trapped for a considerable period in the car following on the accident. Several times in the witness box she broke down when recalling the actual facts of the accident. I do not think that any of this was contrived or put on. I believe that her post traumatic disorder is closely related to the constant presence in her mind of the facts of the accident itself. I think, however that once the proceedings are over and the facts of the accident begin gradually to recede from her mind, there will probably be improvement by degrees and I think that having regard to her previous history of high intelligence and enterprise there is every reason to hope that she may in time make a complete recovery. I therefore must approach the assessment of damages in that light.
Before I detail the injuries and symptoms I should make some reference to the fact that the plaintiff had two other accidents. I have come to the conclusion, however, that she made normal recoveries from the injuries sustained in those accidents and that all her present problems stem from the accident the subject matter of this action.
I have already mentioned that the plaintiff has been suffering from what has been described as a post traumatic migraine. She has had very severe headaches and I think that this is the most plausible explanation for them. In the period since the accident, she sustained double vision, some loss of sight in the right eye, deafness, pain in the chest and back and in her two ankles, urinary problems in the form of frequency, nausea, vomiting, phobias concerning the accident, problems about travelling in a car, depression, mood swings, personality change *37 so that she can be truculent and difficult and has had rows with her mother and former fiancee. She has also sustained aggravation of some degenerative problems. She was badly scarred across the body which can be seen in photographs. There were other symptoms also which she believes were connected with the accident such as vaginal infection, constipation, piles but I do not think that the evidence sufficiently connects them with the accident. I have not set out her injuries and symptoms in any particular order and it is important to note that they did not all arise immediately after the accident and their connection with the accident can therefore be suspect. But I believe that subject to the exceptions which I have mentioned the connection is there. Within a spectrum she is suffering from a severe form of post traumatic disorder.
However, the really important consequence of the accident is that the plaintiff is no longer able to work. At the time of the accident and for a period after it she held the post of clinical research associate with the well known Elan Corporation in Athlone. That post involved her co-ordinating and monitoring of what was known as phase I to IV clinical trials. Her post was treated as a management grade and she reported directly to the head of the medical department. It was a well paid post that included apart from salary various perks such as a company car and other benefits. Before she took on that post in 1988, the plaintiffs history was as follows. She was born on 20 February 1954 as the older of two girls. She was educated at Laurel Hill Convent School in Limerick and subsequently trained to be a nurse. After periods in two different hospitals in Limerick she spent three years as a public health nurse in Limerick, from 1978 to 1981. She then moved out of nursing and worked with the Irish Epilepsy Association for some time but later became a medical executive with Cow Gate in Wexford. She remained with that company until 1985 but after various other positions in the pharmaceutical business, she eventually applied for and obtained the post in Elan. Following on the accident in June 1991, she found herself unable to go back to work for a considerable period. This was largely because of continuing headaches, urinary frequency, spasmodic double vision, some diminution of sight in the right eye and other symptoms. She eventually went back to work on 25 November though she didnt feel able for it. She did so, however, under persuasion. Her mother travelled up to be with her and help her. The plaintiff found she was not able for her work but she remained until her holidays on 19 December 1991. She was due to return to work on 6 January 1992 but did not feel able to do so. By that time she had these migraine headaches which had become much worse and she had some deafness and loss of balance. By a letter dated 15 May 1992, Elan notified the plaintiff that she was being made redundant on the grounds that they no longer had need of her post. She was informed, however, that her full salary would be paid until 31 July 1992. The plaintiff initially did not accept this redundancy as being genuine and lodged a claim before the Employment Appeals Tribunal. That claim was ultimately settled on *38 the basis of her leaving the company. There was evidence before this Court that Elan shortly after this redundancy notice advertised a new post which the plaintiff alleged was in practice similar, although the new post required medical qualifications which the plaintiff did not have. The plaintiff alleges that persons with medical qualifications were rival applicants for her post in 1988. The plaintiffs failure to return to work was a very real problem for Elan and I cannot help being suspicious that the redundancy might have been less than genuine. But suspicion is not enough and I am satisfied that the plaintiff has not discharged the onus which would be on her to satisfy this Court that the redundancy notice would not have been served if she had not had the accident and that she would have remained with Elan. For the purposes of assessing loss of earnings in this case, therefore, I am assuming that the redundancy was genuine and operative. As she was paid her salary in full up to 31 July 1992 she can only claim loss of earnings from that date.
I must now turn to consider on what basis I should approach the question of loss of earnings. There is of course a difficult and important question of whether a deduction will have to be made of monies paid or payable to the plaintiff under a disability policy taken out for her benefit by her former employer Elan. I will be dealing with that question in some detail later on in this judgment. First I must consider the question of what loss of earnings should be awarded if no deduction were to be made. First of all, I am satisfied that the plaintiff by reason of her medical condition which in turn flowed from the accident has been unable to do any work since 31 July 1992. Secondly, I believe that the plaintiffs medical condition will gradually improve once these proceedings are disposed of. Thirdly, I must accept the evidence from Ms Paula Smith as it conforms with common sense, that having regard to the plaintiffs age and medical history it would be extremely difficult for her to get herself back in a few years time on to the job market. I believe, however, that once she made a reasonable recovery she would have the motivation to become at least self-employed in some capacity or other. She might for instance do freelance nursing perhaps on a part-time basis at first but more probably she might, as suggested at the hearing, start her own business such as for instance a nursing home. The trouble with all these cases of post-traumatic syndrome is that there can be no guarantee that the plaintiff will in fact recover and if that happens an injustice may be done by not giving her full loss of earnings into the future. But I can only act on probabilities and it seems to me that on the medical evidence which I have heard, I could not hold that she will never again be capable of earning a living. I do accept however that her full recovery will be gradual and that even if she did decide to start her own business it would take some time before she would be achieving earnings of the order that she would have enjoyed if there had been no accident. As against that, I must also take into account that if there had been no accident there would have been some inevitable delay between her being made redundant and *39 acquiring a suitable alternative post.
Before I specify the figures which I have arrived at based on the foregoing principles, I must now deal with the difficult question of whether monies of which she is and will continue to be in receipt pursuant to the policy of insurance taken out by her former employers must be deducted from her loss of earnings. I will first of all explain the nature of the policy and the payments and then outline the two opposing arguments put forward at the hearing. The Elan Corporation had an employee benefit plan designed to provide a retirement pension related to salary before retirement, the opportunity to take a tax free cash sum at retirement in lieu of part of the pension, benefits on death in service prior to retirement, benefits on early retirement and an income in the event of long term injury or illness. What is relevant to this case is the last of these benefits. This arose under the second of two separate arrangements which together constituted the employee benefit plan. This second arrangement was called disability benefit plan and it was clear that the benefits under this plan were separate from those under the retirement and death benefit plan and were governed by a policy issued to the company by the Irish Life Assurance plc. Benefits under the disability benefit plan became payable if, arising from sickness or accident, the employee was not undertaking any other occupation for profit or reward. Under the plan, when the employee was totally disabled for a continuous period of six months an income was paid equal to 75% of the salary at the date of disablement inclusive of the basic social welfare disability benefit. The income was to be paid until recovery, death or reaching normal pension date and would increase during payment at the rate of 5% per annum compound. For partial disablement a proportionate payment would be made. The trustee of the plan is Coyle Hamilton Trustees Ltd but, in practice, the Irish Life Assurance plc deals directly with the plaintiff in this case and the plaintiff has been receiving full disablement benefit under the policy from Irish Life. There was a dispute at one stage as to whether she was entitled to this once she was made redundant but this dispute was resolved by an agreement under which Irish Life undertook to continue to make the payment on an ex gratia basis subject to the terms and conditions of the policy. This in itself raises a tricky question because it may be arguable as to whether there is a continuing legal liability on the part of Irish Life. There is no doubt that such contract of insurance as there is was made with Elan and not with the plaintiff as it was a policy taken out for the benefit of persons such as the plaintiff. The fact remains that she has been in receipt of monies due to her on foot of full disablement and will as a matter of probability continue to be in such receipt as long as she is disabled. The question obviously now arises as to whether the value of these payments should be calculated and deducted from the plaintiffs loss of earnings claim.
Ms Clark SC, counsel for the plaintiff argues that they ought not to be deducted. In making this submission she relies on the wording of s. 2 of the Civil . That section reads as follows:
In assessing damages in an action to recover damages in respect of a wrongful act (including a crime) resulting in personal injury not causing death, account shall not be taken of:
(a) any sum payable in respect of the injury under any contract of insurance,
(b) any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the injury.
Ms Clark says that the payments made by Irish Life to the plaintiff are payments under a contract of insurance. They are in respect of her injury. She said that though the plaintiff was not a party to the contract of insurance, the contract of insurance was nevertheless made for her benefit. She further argues that the statutory provision is couched in broad terms and that it does not say that the contract of insurance has to be made with the person who is injured nor that that person should have paid the premiums.
Mr Hickey SC, counsel for the defendants submits that the Irish Life policy in this case is not a contract of insurance of the kind contemplated in s. 2 of the 1964 Act because of the fact that the premiums were paid by the employer. In making this submission he relies mainly and indeed almost exclusively on the decision of the House of Lords in Hussain v. New Taplow Paper Mills [1988] 1 All ER 541. Mr Hickey partly relied also on a reference in Kerr on The Civil Liability Acts 1961 and 1964 at p. 134 to a case of Dennehy v. Nordic Cold Storage Ltd High Court (Hamilton P) 8 May 1991. It appears from the authors note that in that case an employee, absent from work due to an injury, received a regular payment of monies from his employer pursuant to a non-contributory income protection plan and subsequently sued his employer for loss of earnings. The employer was indemnified, pursuant to a contract of insurance for the income continuance payments and the plaintiff argued that s. 2 of the Civil Liability (Amendment) Act 1964 applied and that the money so paid should not be taken into account. Hamilton P held that such a contract of insurance did not fall within the sections ambit and that consequently the monies received by the employees ought to be deducted from the assessment of damages. The author then goes on to state the following:
In effect, Hamilton P was prepared to imply the words to the plaintiff after the words any sum payable in paragraph (a).
I read this as being Mr Kerrs own analysis of the ruling of Hamilton P. There is no judgment available and it appears to have been a ruling in the course of a trial. But I rather doubt that Mr Kerr is correct in his interpretation of the basis of the decision. It would seem to me more likely that as the contract of insurance *41 in that case appears to have been simply a contract indemnifying the employer against a liability which the employer himself took on it was not within the category of contracts of insurance covered by s. 2. I would respectfully agree with that but it is interesting to note that even if Mr Kerrs analysis is correct the contract of insurance in this case is totally different from the contract of insurance in the Dennehy case as this contract of insurance was not an indemnity contract but rather a contract taken out by the employer for the benefit of persons such as the plaintiff. It seems to me therefore that the Dennehy case is not really in point. There does not appear to be any Irish case relevant to the question of whether monies payable on the type of policy that pertained in this case should be deducted or not having regard to the terms of the 1964 Act. The English case law including the Hussain case relied on so heavily by Mr Hickey has to be approached with great caution because in England the question of whether insurance monies have to be deducted or not in any given personal injury case has always been governed by the common law and not by statute. In England, the opposite however has always been the case in relation to fatal injury cases. It is only because of statute that the English courts have countenanced any non-deduction of insurance monies in a fatal injury claim. It would seem likely and indeed both Ms Clark and Mr Hickey seem to be in agreement about this, that the whole purpose of s. 2 of the Civil Liability (Amendment) Act 1964 was to provide a corresponding statutory provision for personal injury actions to s. 50 of the Civil Liability Act 1961 which provided for equivalent non-deductions in fatal injury claims. The 1964 Act was a short Act of what might be described as a tidying up nature covering relevant matters not already provided for or inadequately provided for in the Civil Liability Act 1961. But s. 50 of the 1961 Act is largely a re-enactment of earlier statutory provisions in the interpretation of which the courts have held that the deceased need not be a party to the contract of insurance and need not have paid the premiums. It seems reasonable in the circumstances to assume that s. 2 of the 1964 Act was intended by the Oireachtas to be interpreted similarly to s. 50 of the 1961 Act and therefore, as I see it, the Oireachtas would not have intended that the injured party had to be a party to the contract of insurance or that the injured party had to be the person paying the premiums.
I will now as briefly as I can, trace the separate histories of the treatment of insurance monies in fatal injury actions on the one hand and personal injury actions on the other. In the 15th ed. of McGregor on Damages at paragraph 1594 the general position relating to non-deductibility of collateral benefits in fatal injury claims is succinctly stated:
The path taken by the collateral benefits issue in fatal accident claims has been curiously different from the path it has followed in the field of personal injury. Whereas there was for long general acceptance of the rule that the damages in *42 a personal injury claim were not to be reduced because benefits had been conferred upon the plaintiff by third parties which mitigated his loss, the general rule was the exact opposite where the claim was in respect of a fatal injury, and it became accepted, without any real dispute, that only the net pecuniary benefit accruing to the dependants was recoverable as damages. This undoubted general rule finds its clearest and most authoritative expression in the speeches of their Lordships in Davies v. Powell Duffryn Collieries [1942] AC 601. Lord McMillan put it thus:
Except where there is express statutory direction to the contrary, the damages to be awarded to a dependant of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased. It is the net loss on balance which constitutes the measure of damages.
McGregor goes on to say that gradually serious inroads were made by statute upon this rule of deduction of collateral benefits. The first of these was the Fatal Accidents (Damages) Act 1908 which provided in s. 1 as follows:
In assessing damages in any action, whether commenced before or after the passing of this Act, under the Fatal Accidents Act 1846, as amended by any subsequent enactment, there shall not be taken into account any sum paid or payable on the death of the deceased under any contract of assurance or insurance whether made before or after the passing of this Act.
I would make the passing comment at this stage that there is no material difference relevant to this case between that provision and the statutory provision relating to insurance monies contained in s. 50 of the Civil Liability Act 1961. S. 50 of course is itself a re-enactment of s. 5 of the Fatal Injuries Act 1956 which had replaced s. 1 of the 1908 Act. During all this period of legislative history in relation to fatal injuries and until the Civil Liability (Amendment) Act 1964 there was no statutory provision relating to non-deductibility of insurance monies in relation to personal injury claims. The principles were governed and developed solely by the common law. But the common law in relation to non-deductibility of insurance monies for personal injury claims was quite different than the pre-1908 Act common law in relation to non-deductibility of insurance claims for fatal injuries.
In more recent legislation in England the deductibility of items in fatal injury claims has been extended but even under the earlier English legislation which was similar to the Irish legislation it was unsuccessfully contended by the defendant in Bowskill v. Dawson (No. 2) [1955] 1 QB 13 that the statutory provisions relating to non-deductibility of insurance monies only applied where the deceased was himself a party to the insurance contract. It was again *43 unsuccessfully argued by the defendant in Green v. Russell [1959] 2 QB 226 that the narrower earlier legislation in England (similar to the Irish legislation) only applied where there was an enforceable right in the estate or their dependants to the monies. It is clear on the English authorities that a policy taken out by employers for the general benefit of employees one of which may be the deceased is sufficient.
As I have already indicated, the question of non-deductibility of insurance monies in a personal injury claim as distinct from a fatal injury claim was until 1964 in Ireland and still is in England governed solely by the common law and not by statute. The original leading case in relation to personal injury claims was Bradburn v. Great Western Railway (1874) LR 10 Ex 1. Although there has been a tendency in the English case law progressively to cut down on the categories of collateral benefits which are non-deductible, this decision according to McGregor on Damages has withstood all the recent changes of judicial heart over the issue of collateral benefits. McGregor explains the basis of Bradburn as follows:
The argument in favour of non-deduction is that, even if in the result the plaintiff may be compensated beyond his loss, he has paid for the accident insurance with his own moneys, and the fruits of this thrift and foresight should in fairness inure to his and not to the defendants advantage.
The explanation of the Bradburn principle was further put by Lord Reid in his speech in Parry v. Cleaver [1970] AC 1 at p. 14:
As regards moneys coming to the plaintiff under a contract of insurance, I think that the real and substantial reason for disregarding them is that the plaintiff has bought them and that it would be unjust and unreasonable to hold that the money which he prudently spent on premiums and the benefit from it should inure to the benefit of the tort-feasor. Here again I think that the explanation that this is too remote is artificial and unreal. Why should the plaintiff be left worse off than if he had never insured? In that case he would have got the benefit of the premium money: if he had not spent it he would have had it in his possession at the time of the accident grossed up at compound interest.
Despite this clear exposition quite an amount of confusion arose as to when benefits were to be deducted or not (see Payne v. Railway Executive [1952] 1 KB 26, Browning v. The War Office [1963] 1 QB 750 and Parsons v. B.N.B. Laboratories Ltd [1964] 1 QB 95). It may well have been because of the uncertainty of the common law at that time that the Oireachtas decided to enact s. 2 of the Civil Liability (Amendment) Act 1964 simplifying the position and in effect applying to personal injury actions the same rules as to non-deductibility as already applied to fatal injury actions under s. 50 of the Civil Liability Act . In each case the expression under any contract of insurance is used and I therefore see no reason why the broad interpretation which has always been given to that expression in the fatal injury cases should not now be applied to personal injury actions. Of course this does not mean that a simple indemnity policy indemnifying the employer against some contractual undertaking by it to continue making salary payments to an employee who had become incapacitated would come within the section. I think that it clearly would not. But that is totally different from the type of policy in place in this case.
There is one superficial objection which can be made to the broad interpretation of under any contract of insurance. It could be said that an anomalous injustice could occur if the defendant was himself the employer. In that case it might be argued that there was no third party claiming advantage from the plaintiffs own insurance benefits. But I do not think that the interpretation of the clear words of the section should be governed by such considerations. In most cases the benefit policy will form part of the total remuneration and the employee will therefore be indirectly contributing to the premiums. In other cases it may be possible to imply a term permitting deductibility in the contract of employment. None of that arises in this case. Elan did not cause the plaintiffs injuries.
The English position in relation to personal injury actions is still governed by the common law and as Mr Hickey has rightly pointed out, the latest authority is the House of Lords decision in Hussain v. New Taplow Paper Mills Ltd. For the reasons which I have indicated, I take the view that it is now the statute and not the common law which governs the position and therefore the Hussain case is not really relevant. But even if it were relevant, it can, I think, be distinguished from this case in that in the Hussain case the employers assumed a direct contractual liability to the plaintiff to pay partial salary in the event of incapacity and it was held that the fact that the defendants happened to have insured their liability to meet those contractual commitments as they arose did not affect the issue in any way. It is, however, true that Lord Bridge of Harwich does describe as a well established exception to the deductibility rule the situation where a plaintiff recovers under an insurance policy for which he has paid the premiums, citing Bradburn v. Great Western Railway Co. But although the plaintiff in this case did not pay premiums the insurance arrangements were part of her remuneration package and, as I understand her contractual arrangements with her employer, if for instance the insurance company had become insolvent or in some way unable to meet its commitments there would have been no right of action by her against her employer. Furthermore, even though the benefit was calculated by reference to salary it was a disability benefit and not salary. Even if the common law position pertained, therefore, I think that a strong argument could have been made in favour of non-deductibility but as I have explained that does not arise as in my view the question of deductibility is entirely governed *45 by s. 2 of the Civil Liability (Amendment) Act 1964 and for the reasons which I have indicated I accept the submissions of Ms Clark. The disability payments already paid or to be paid ought not to be deducted.
I would assess damages as follows:
Pain and suffering to date
50,000
Pain and suffering for the future
25,000
Loss of earnings to date
60,000
Future loss of earnings
80,000
Medication
2,160
Aromatherapy
6,000
Medical fees
4,832
Future medication
1,200
Future medical and psychiatric fees
800
Travel expenses to date
4,000
Future travel expenses
3,000
TOTAL
236,992
The damages must obviously be reduced by 50% and State disability benefit of 10,435.10 must be deducted.
Cahill v Glenpatrick Spring Water Company Ltd.
[2018] IEHC 420 (19 June 2018)
JUDGMENT of Ms. Justice Bronagh O’Hanlon delivered on the 19th day of June, 2018
1. The plaintiff confirmed his date of birth as 2nd May, 1973 and that he is a father of four boys aged 22, 20, 18 and 16 years. He described his employment history, having left school at seventeen years, as mostly being based in the manufacturing sector and factory type work.
2. The plaintiff gave evidence of having had a previous accident at work in a previous employment in or about 2008 in a dump truck seat, which failed because there was a temporary weld on the seat as a result of which the plaintiff suffered a back injury. The plaintiff didn’t have ongoing difficulties in that area of his body as a result of that accident. He described himself as interested in sport, hunting, fishing, football and hurling.
3. The plaintiff began his work with the defendant company initially as a seasonal contract worker. He began that work in May, 2010, originally with 5pm-10pm shifts. At that time the plaintiff explained that he was undertaking a course to train as a nurse’s aide/care worker in the hope of obtaining work with the Heath Service Executive.
4. The plaintiff described his main job as manning the Sidel 2 machine within the tabard area where “preform” plastic bottles were blown into full size bottles. The plaintiff gave evidence that at 10pm at night his duties changed and he would then work when the night shift took over, in the palleting area. His work hours were extended after a period of time to 1:30am.
5. The plaintiff gave evidence that the accident occurred on 15th September, 2010 at 9:30pm. The problem developed in the timing in his own machine and, as he was trained to do, the plaintiff attempted to reset the timing but was unsuccessful. The plaintiff then went to Pioter Czernejwski who was standing on the frame of Sidel 3 and was removing a blockage of preforms in the top of the machine by hand. He gave evidence that he was invited to change places with this gentleman who asked him to finish up what he, Mr. Czernejwski, was doing while he went to investigate the problem with the plaintiff’s machine. The plaintiff’s evidence was that he climbed onto the frame of the machine, stood on the uppermost bar while clearing the blockage by hand but that while he was throwing an armful of preforms back into the hopper at the foot of the conveyor, he lost his balance and fell backwards. The plaintiff describes striking his head off something as he fell and that he hit the ground landing on his coccyx and elbows. He then met and had a discussion with Anthony Dignam who was the nightshift supervisor and who chided him for being up there. The plaintiff then said his own machine was not working. It was close to changeover time so he went to work in the palleting area but that he wasn’t able to do the work of lifting wrapped bottles due to pain and, having indicated to the evening shift supervisor Mattie O’Brien that he was injured and would have to go home, he left the plant.
6. The plaintiff gave clear evidence that when he got as far as the nearby carpark in Tesco he was obliged to telephone his wife and get her to collect him because he could not drive his motor vehicle. The following day he explained to Tom Weste, who was the day shift manager, what had occurred and the plaintiff says that he furnished medical certificates for a number of weeks before he received a P45 from the defendant in the post.
7. The plaintiff was treated by Dr. John Carey, his general practitioner, with anti-inflammatory and pain killers and given a sick note for work for one week with a diagnosis of probable soft tissue damage. He was sent for various x-rays and then he got a referral to an Orthopaedic Consultant in Ardkeen Hospital. He saw Dr. Chhabra but also Professor Molloy in Cork and he went privately regarding his neck and back. Professor Molloy gave him a set of exercises for his neck and back. The plaintiff gave evidence that these exercises are very painful but that he does them very regularly and that he also does light gym work and walks. However, he avoids uneven ground. He felt that he was left with a weak left leg and has had falls. He is on two different nerve suppressants. The plaintiff described how hard it was for him to sit for too long or to stand for too long and how he has to take pressure off his back. He described it as like being winded between the shoulder blades with pain down the right arm to above the pelvis and he said that his lower back was causing him greater difficulty at the moment with spasms every couple of weeks and that he was getting a lot of sciatica.
8. The plaintiff described how he missed three weeks of his FETAC course which would have allowed him to work in a hospital setting as a nurse’s aide or carers assistant and that it was a quite intense eleven-month level 5 course. He couldn’t continue with that because physically he couldn’t put himself forward, he couldn’t drive a car and he felt that his legs were going to explode. The plaintiff described himself on social welfare disability allowance ever since the accident and says that he has rarely been able to drive since then. If he goes for a walk he has to be picked up and if he stays too long on his feet, he gets very stiff. The plaintiff indicated that he hadn’t cleared blockages on machine no. 3 before the accident but that he had seen it done. The plaintiff felt that prior to this he had been a very active sociable person and very family orientated but that now he tends to be isolated from his own family and has suffered depression difficulties and is now on an antidepressant. The plaintiff described himself as a person who doesn’t like to show weakness and he found it very hard to admit that he was depressed.
9. The plaintiff described considerable pain in 2012, with particular irritability, agitation and moodiness. He said that he had separated from his wife in 2012 but feels the loss even though he has contact with his children. He is now in shared accommodation within walking distance of his own home. The plaintiff accepted when cross-examined that he had been assigned to Mr. Bates who had trained him in use of the Sidel 2 machine and that he had worked with him for an eight-week period. He agreed that Mr. Bates had shown him how to reset the timing on the Sidel. The procedure was that he would climb up on the hopper and Mr. Bates would show him how to free it and that if he couldn’t free up the machine Mr. Bates would climb up on it. The plaintiff also agreed that his colleague at Sidel 3 sent him up on his machine and that that is when he fell.
10. The plaintiff described how he tried to work for Sky Television cold-calling but he said that for the hours he needed to put in, there was no financial gain. The plaintiff then gave evidence that he tried to work for Homestead who were looking for workers. He found that work just too uncomfortable to do, mostly concerning discomfort in the neck and back.
11. Under cross-examination the plaintiff described himself as having good days but bad weeks and that he was quite uncomfortable 99% of the time.
12. The plaintiff was cross-examined in detail about a number of social activities from photographs of holidays and socialising with his family and friends. He was asked about his cutting up blocks and loading them onto a trailer with other family members which he freely admitted doing and he indicated that he was able to do this physical activity within reason until his back or neck would no longer allow him to do it. The plaintiff indicated that he can use a chainsaw but only for a limited period of time. He denied that he sawed, split and loaded the wood all in one day and indicated that the wood would have been sawn prior to that by either himself or his son. Some of the specific contents of Dr. Gleesons’s report were put to this witness but the plaintiff did not accept that there was nothing wrong with him as asserted by Dr. Gleeson. The plaintiff freely admitted that he helped his sons with the timber and he said that it was not a case that he ever said that he is an invalid 100% of the time. He did not accept the contention that his claim was fabricated.
13. On re-examination the plaintiff clarified that he did not have back pain at the point at which he ceased to work for Roadbridge and that at the time of the accident in Glenpatrick he was quite fit but slightly overweight. He used to play AstroTurf soccer as well as indoor soccer. The plaintiff agreed that he had lost three stone in weight in seven weeks prior to the accident and that it is referred to in Dr. Carey’s notes dated July, 2010. The plaintiff indicated that he was treated for bacteria in the intestine and he said when he stopped working in Glenpatrick he started putting on the weight and he agreed with the clarification that Dr. Maria Kelly recorded on 23rd July, 2010 that his weight has stabilised in the previous week.
14. Mr. Thomas Weste gave evidence on behalf of the plaintiff. He described himself as a day shift supervisor taking responsibility for the regulation of production within the plant. He had worked there for eighteen years and had interviewed the plaintiff in respect of the job concerned. This witness indicated that he had no role in induction or training and he confirmed that the day after the accident the plaintiff indicated to him by telephone that he had had a fall and that he expected to be back at work within a matter of days. He reckoned that the plaintiff was off work for about four nights. The following Monday the plaintiff telephoned to confirm that he would be coming to work with a sick certificate. This witness indicated that he was made redundant a couple of weeks after that, after 18 years’ employment.
15. Thomas Sheehan gave evidence for the plaintiff and said he worked in the plant until 2014 where he had begun as an operator and gone on to become a product manager over a 25-year period with the firm. He had worked sixteen years as production manager. He described the stages in the process, stage 1 buying in the preform items, stage 2 involved heating them in order to turn each one into a bottle. He said he himself had never actually worked with the plaintiff and he agreed that he had his own difficulties with the company and he agreed that at that time while he took redundancy there had been an attempt on the part of his then employer to dismiss him and that he has a case against the company. He confirmed that he never worked on the plaintiff’s shift nor does he know him. He explained that if there wasn’t a major blockage he would use a stick to clear the fault on the machines and he confirmed that he had worked on the machines for sixteen years and had climbed them to do maintenance.
16. Mr. O’Reilly, Consultant Engineer, gave evidence that he attended the premises on 28th May, 2013 and that the plaintiff brought him to Sidel 3 where they were making the plastic bottles. He took the court through the photographs taken and made reference to the fact that, in his opinion, ten feet above floor level, it was not a safe place to work. If a person were climbing the structural bars, one would climb to the fourth bar, which would be 81 inches high, and one would then need a safe means of access to a platform or tow board and ladder. He said there was an obligation to have a safe means of access to and egress from the place of work and that s. 15 of the Health & Safety at Work Act 2005 came into play.
17. He referred to the risk assessment hazard and an ID sheet as a precursor for the preparation of a safety statement. This classified the risk level as medium on the subject machine. He said that hands were used with the moving machine and that there is a risk of entrapment with manual removal of a blockage. He said that was the position with regard to Sidels 1 and 2 and he believed that it also referred to Sidel 3 and he said that he would identify this is a hazard i.e. the manner in how a blockage is removed. He said there is no means of climbing up, that it is unacceptable and clumsy to try and clear blockages in the manner used. He said there was no reference to climbing machines and that this part must be accessed on a frequent basis and there should be a platform ladder. He confirmed under cross-examination that if he were required to climb in the manner described by the plaintiff that that would be an unsafe system.
Evidence of Marie Cahill, wife of the plaintiff
18. Mrs. Cahill gave evidence that she was married in 1995 and confirmed that she had separated since the accident but that the parties had brought up four children and that all but one are now adults. She described how her husband telephoned her to say that he had had a fall at work and that he was coming home. Five to ten minutes later he asked her to collect him from Tesco. She got her sister to come with her to Tesco to pick him up. This witness said that he telephoned Tom Weste and that she drove him into the factory to explain what had happened and that she brought in medical certificates three or four times and that she got these certificates week by week from Dr. John Carey and handed them into reception.
19. She described the husband as having mood swings the entire time since the accident. They separated two years post-accident. He had been taking out his bad moods on the boys, was snappy and that he had moved out, but that most days he would pop down and that they still talk. The witness confirmed that her husband had had an accident while working with Roadbridge and that he was in pain for a few weeks after that accident but that it was not severe. The witness was cross-examined to the effect that her husband was claiming to have complete disability. She was shown photographs of him lying on the floor and the defence put to her that he seemed to be in the whole of his health while he was saying that he couldn’t ever work after this event. The witness said her husband was not in a new relationship that she was aware of, that he had gone on a family outing to Wales and that he had wanted to make it a day out and that she didn’t see him cutting logs. She was aware that he had lost 70 pounds in weight prior to the accident.
20. Dr. George Karr, Consultant Neurosurgeon, gave evidence of his qualifications to the Court. He said that he had seen the plaintiff on 15th February, 2018 and found him to have stenosis or degenerative change of the joints from being flexible to less movement. He referred to nerve study conduction tests carried out and he said that the symptoms can cover pain, pins and needles and burning sensations. He found that this patient had chronic long term changes going on for at least six months, L2 to S2 changes and L2 to L4 on the left side. He said that these were indicative of compression of the nerve root and can be degenerative or be due to a trauma where there is stretching or irritation of the nerve root. He said that is present in the MRI scan and that he thinks a fall from seven foot high is likely to give rise to a sign of stress to the neck and lower back. He said the plaintiff has pain in the shoulder blades. His diagnosis is of degenerative changes in the lower cervical spine and lumbar spine and he said there was a loss of sensation with trauma to the lumbar spine. He said that in December, 2015 in terms of prognosis, the pain remained severe at that stage and he felt surgery would aggravate matters. He said the plaintiff was due to be seen by a pain specialist and was to exercise as much as possible. The symptoms would continue for one to two years.
21. This witness indicated that it is now five years since the accident and said that non-impact exercise was recommended with no excessive twisting. He said that there is a 5% risk of serious change and he envisaged a further one to two years towards recovery. He said when one is five years post accident that after two to three years it is very rare to become completely pain free. He feels that the plaintiff’s back pain is worse and that he has a dead pain in his right leg as if cold water was running down the right leg and going into the right arm and hand.
22. The plaintiff is on antidepressants which he gets from his GP and he said that in some cases this becomes an overriding problem where there is an unresolved upset and there can be psychological disturbance which can lead to severe mental distress. He found this plaintiff’s neck movement restricted and shaky and that the pain went through the right shoulder and right elbow and to the rest of the lower back. He said he felt that the second MRI was unchanged and that the diagnosis was the same as previously. In terms of symptoms and clinical findings he said these are much the same as before and that over time the plaintiff became more upset regarding his case.
23. The prognosis seven years following this accident is that the plaintiff is in constant pain and discomfort and it is unlikely that one would see significant improvement.
24. This witness said that it was unlikely that the plaintiff would be unable to do physical work or exercise. He can do non-impact exercise. He said that there was a physical and psychological basis to the problem and that basic exercise was all right but that he did not see him returning to his previous activities.
25. In relation to the fact that the plaintiff was chopping firewood, this witness indicated that every time he saw the plaintiff he encouraged him to exercise and to do activities i.e. short burst activities.
26. Under cross-examination this witness said that at the early stage there was no bone injury but that the scans in 2015 showed that degeneration could be found and that there is no clinical evidence of nerve malfunction. He said he relied on x-rays and the scans of the spine as well as neurological symptoms. This witness strongly said that he relied on both x-rays and scans but also on his physical examination and that in 2015 he found a restriction of movement of the neck and back with obvious pain and he found a restriction in movement in both legs.
27. This witness was asked about a previous accident where the plaintiff suffered in 2008 an injury from a dumper truck and he told Dr. Kaar that he had fully recovered within six months of the accident and it was remarked that three and half years after the full recovery the plaintiff issued High Court proceedings regarding that claim. This witness, asked that about Dr. Gleeson’s findings, said that in 2015 the plaintiff’s movements were a little better than they are now. He said that Dr. Gleeson appeared to have missed the whole upset and psychological aspect of the case and, while she concluded that the plaintiff was in some way exaggerating, she was looking at him physically, not holistically and that while the plaintiff is capable of moving and doing things with his symptoms, he doesn’t believe it is false. The plaintiff has developed progressive symptoms since the accident. He said the plaintiff’s difficulty begins with physical problems which then becomes pain plus psychological upset with difficulties of self-perception where it can be very difficult to return to previous activities. This witness was shown photographs of 16th July, 2014, showing the plaintiff on the ground. He said it is very difficult to comment on a brief snapshot in time and its interpretation is really a matter for Mr. Cahill.
28. This witness was asked about Mr. Cahill being on a fairground ride where the instructions said that if you have a bad back you should not use this equipment. This witness answered that the plaintiff is sitting down in the photograph and that he felt the force of such rides would be carefully calculated. Photograph 2 shows a vertical ride and it was put to this witness that there was no attempt to protect his back and he said the plaintiff does not seem to be supporting himself with his arms in the photograph and that it is difficult to know how often he did this or for how long he was engaged in the activity.
29. He was asked about the plaintiff chain sawing, splitting wood and glowing wood and he said that when he reviewed the plaintiff, he tried to encourage him to do things, although not on his own.
30. This witness said that he believed that the plaintiff undertook Homestead care work since the accident and he said on the evidence of one occasion of leg activity that it was very poor evidence and he could not comment. He said it would be different if he carried out a complete trailer full of material with an axe. He said it would not be consistent if he was on his own rather than with his sons as was the case here.
Evidence of Susan Tolan, Occupational Therapist
31. This witness saw the plaintiff on the 11th July, 2016. He set out his complaints and his full work history. He was in the course of undertaking health care assistance training and there were jobs in that area. He also tried telephone sales which was not competitive for employment and she felt that there were significant barriers to employment for this patient. She described his physical complaints, his loss of confidence, his isolation, his injuries, the fact that he was depressed and described this as a vicious circle. For any employer he would have to update his skills and any employer would have a duty of care regarding manual work and would not be a suitable occupation for him. She stated categorically that he was not employable at the moment.
32. This witness also stated clearly that if a person is depressed it is very difficult to get that person to cope with vocational rehabilitation. With disability one can earn €120.00 maximum per week. One could work part-time but the plaintiff does not have a skill at present and is now on anti-depressants.
33. It was put to this witness that the plaintiff had been involved in using a chainsaw. Her response to this was that one must look at the purpose of the activity. It was more important that occupational deprivation leads to social isolation and it might well have been necessary for his physiological wellbeing that he would do something with his family. This witness said we must view the chainsaw in a wider perspective.
34. With regard to photographs where a lady is seen falling over the plaintiff in an accidental way, her response was that it might well have caused him severe pain. This witness also felt that even though he was working with a trailer, it did not mean that he could sustain that type of activity over a period of time. Regarding his history, her observation and his medical reports, this witness concluded that the plaintiff is not a candidate for employment. The plaintiff would not have had enough stamps to give him an invalidity pension. He was refused disability and got it on appeal and therefore this witness argued that he was by definition unfit to work.
35. In 2017 in terms of the certificate of recoverable benefits the plaintiff indicated to this witness that he was getting disability allowance at the time she saw him.
Evidence of Dr. Gleeson, witness for the defence
36. Dr. Gleeson, Specialist in Occupational Health, described her qualifications both as a general practitioner and as a member and fellow of the Royal College of Occupational Health Specialists. This witness looked at fitness for work in terms of safety, capacity and tolerance. She claimed to use the holistic method and said the plaintiff was sent to her for a medico-legal examination in 2015. She said that he sat in front of her for 45 to 60 minutes with no difficulty. This witness claimed that he was inconsistent and that he could dress himself with no difficulty and that he either had Munchausen’s Syndrome or that he exaggerated or had a psychological difficulty. She said that there were no clinical signs and that all his joints had the full and normal range of movement and that his difficulties are non-organic or psychosocial. She referred to “black flags” which would indicate a lack of happiness at work or that there was litigation pending.
37. This witness said that he had chronic pain syndrome with “black flags” and felt that he was part of the compensation culture. She said that there were no signs that any allegation of chronic pain was work related and she felt it was more psychological/social. She did not find him depressed and deemed him fit to work. This witness said that the plaintiff needed rehabilitation but that there is no reason to get back to work and his previous injury would not preclude him from work.
38. This witness said that he had a full normal range of movement and that a forklift vibration would be nothing like the vibration on a fairground machine for example.
39. She was shown where the plaintiff was crouching. She said he was able to hold that position without any distress and that he was functional and she deemed him to be fit to work and felt that there was deliberate exaggeration or a psychosomatic aspect and that with a period of rehabilitation of four to six weeks he should be back to work.
40. Under cross-examination she agreed that she would defer to the opinion of a neurosurgeon regarding the spinal issues and to an orthopaedic surgeon. She agreed that she did not have the MRI test to hand when she examined the plaintiff and she did agree in conclusion that it would be worth an orthopaedic and surgical opinion. She did not have the nerve studies conduction reports at that stage and she said she did not wait on the results to do the report. This witness argued regarding the back pain revolution referred to in a lot of UK studies that the MRI can have a negative effect on opinion. She says we all have a certain amount of degenerative difficulty that does not need surgery and that MRI’s are not routinely indicated.
41. This witness indicated that she saw the plaintiff five years post-accident, that his clinical examination was normal, that his reflexes were normal and his function was normal. She felt that the MRI and testing was for legal purposes and she said that it was good that he was referred to the pain clinic and that is part of excluding a red flag scenario.
42. This witness indicated that a lot of English studies show that there is no clinical evidence of neurological lesion and that a person can still be fit for work and despite having an abnormal ENG study, she deemed the plaintiff fit for work. This witness claims that the ENG is not relevant to her assessment even though the neurological experts say they are in this case. This witness holds that scans are for exclusion studies and that even if one is treating patients with chronic neuropathy he should still go back to work if he can sit and move normally, he can do so. She found that he had a glove and stocking distribution of nervation and that this was not consistent with nerve lesion and jelly legs include faintness and that pins and needles signal cervical radiculopathy.
Evidence of Dr. Seamus MacSuibhne Consultant Psychiatrist of St. Luke’s Hospital Kilkenny.
43. This witness described the plaintiff as having a depressive disorder consequential to physical disorder. He described the plaintiff as suffering from low mood, loss of hope, and as showing some suicidal ideation which was quite severe and that this patient perceived a loss in many domains.
44. The plaintiff indicated to this psychiatrist that he had had a shotgun in his mouth at one stage. The consultant psychiatrist distinguished his condition as that of Post-Traumatic Stress Disorder. He described the plaintiff as having dreams every few weeks in the nature of Post-Traumatic Stress Disorder but he said it was more depression itself which was the problem for the plaintiff. He described the plaintiff as having a profound loss of his sense of self.
45. This witness described the plaintiff as suffering an impact on his masculinity and on his sense of purpose and said that there had been an impact on his family life which included the breakup of family life and the loss of relationship with his sons. Prior to the accident, while the plaintiff had a previous accident, he did not have any traumatic experience as a result.
46. This witness described the plaintiff as being depressed in mood and that he does hope more things can be done in the future for him and that he is on anti-depressants at the moment. He described the plaintiff’s condition as less than one would hope for, suboptimal in his view. This witness advised a change in the medication and advised that the plaintiff be given this at night because it would help his sleep problems. He described the plaintiff as having had a number of losses and said that he needs clinical assessment with a psychologist and CBT.
47. This witness indicated that there are positive signs, however, in that the plaintiff had a determination to get better and he described the effect of this accident as having had multiple effects on the plaintiff.
48. The first interview with the plaintiff occurred on 2nd March, 2018 and the second interview ten days prior to the case being heard. This witness agreed that he was aware that the case was listed at the time of the second interview. He confirmed under cross-examination that the plaintiff does not suffer from Post-Traumatic Stress Disorder and has rather a depressive disorder and he based this clinical judgement on the presenting symptoms at the time. This witness described the prognosis as guarded and that the psychiatrist cannot give a terminal diagnosis.
49. Under cross-examination it was put to this witness that Dr. Gleeson gave evidence that the plaintiff is capable of going back to work. This witness disagreed with that, but did add that he could get back to a position of functioning where he would then be able to go to work. The psychiatrist then added that the plaintiff has depression in the context of psychical symptoms and he described it as an after effect of his injuries and that in his clinical judgement depression is the condition he has. He described making that clinical diagnosis in the context of his own medical reports and the reports the plaintiff had. He said that this witness added that it was a free standing depression and that it was independent of pain, but he agreed that he had chronic and daily pain.
50. Regarding a photograph, shown to the psychiatrist, he was asked whether this photograph was consistent with pain or loss of daily function. He said that it was consistent and didn’t mean that someone never laughs, nor did he feel that the other photographs were inconsistent with the plaintiff having depression and he said that he wasn’t in court himself as a pain specialist.
51. This witness was shown a photograph which showed a stationary roller coaster and he felt that it wasn’t the plaintiff in that picture that had his hands in the air but he said it wasn’t inconsistent with what he knew of the plaintiff.
52. A photograph was put to this witness which showed the plaintiff using an axe/chainsaw chopping wood and again he said this was not inconsistent with a person having a depressive disorder. This witness added that the occupational therapist looks at activity in the broad sense and he said with regard to the photographs showing activities such as that of a chainsaw these are snapshots as opposed to a clinical examination. He hoped that with anti-depressants and psychology that the moderate depression which the plaintiff suffers from would alleviate within a year, but that he cannot work at present and he would hope that after one year the depression would be better and that he could work.
53. The parties agree that the Court could consider the actuarial report provided on behalf of the plaintiff as a guide. No evidence was called in relation to this aspect of the case but it was pointed out on behalf of the plaintiff that he was seven years out of work and that there were loss of earnings figures that he had hoped by February 2012 to work as a nurses’ aide but wasn’t able to complete that training. The report from the actuary was described as not being part of the claim as such. It was stated that while figures were given, the Court was not bound to follow it.
54. Reference was made to Billy Nolan v. O’Neill [2012] IEHC 151. The plaintiff was described as having a disability as a result of the accident he is not fit to do what he would otherwise have done had he not had the accident. His plan A was to work as a health care assistant.
The defendant’s case – evidence of Declan Clarke, Private Investigator
55. This witness indicated that he observed the plaintiff for the purposes of this case and that he was compliant with the Data Protection Act. He indicated that on 5th August, 2015 he saw the plaintiff receive timber delivered in the form of two bags taken off a lorry.
56. He made a reference to day 2 six weeks later when he observed the plaintiff between 10am and 12:30pm using a cutting chainsaw behind a ditch. This witness described himself as passing by the plaintiff every ten minutes. He said there were two men working together on that date.
57. With reference to his observations on Monday 21st September, 2015, he did not see the plaintiff but there was a trailer full of blocks parked at the plaintiff’s home. On 22nd September, 2015 and 24th September and 29th September between 3 and 5pm there was no sign of the plaintiff. On 30th September, the plaintiff was observed by this witness between noon and 1:35pm and he described the trailer on that occasion as blocking his view.
58. With reference to a photograph, he said the plaintiff showed no sign of disability under observation by him on 30th September, 2015. On 1st October, 2015 between 1pm and 3:30pm, the plaintiff was the only person present splitting logs and he was using a big axe i.e. a full sized axe. The plaintiff was continuing this activity and was still there when this witness left.
59. On Friday 2nd October between 1 and 4pm the plaintiff drove the trailer to his house and had the axe up over his head and was bending down throwing logs. He was working fast and was twisting and throwing and carried out a variety of different tasks and there was no sign of restriction on that date between the hours of 1pm and 4pm.
60. This witness confirmed that the plaintiff was still working with the logs when this witness left the scene and that he was quite surprised to see the plaintiff walking showing a restriction of movement.
61. He referred the plaintiff’s open forum on facebook which showed him at a theme park called Oakwood where patrons are advised not to ride with a back or neck injury or ailment or pre-existing condition. Photograph 11 showed the plaintiff on a circular pole which shoots into the air and drops back to the ground and he said it and a rollercoaster where the two most severe rides.
62. Under cross-examination this witness confirmed that he was not watching continuously but was driving up and down the road passing the plaintiff every ten minutes. He confirmed that the longest period of observation every ten minutes would have been between seven and eight seconds in terms of his view because he felt he couldn’t stop the car.
63. This witness confirmed that the plaintiff was only on his own during one of the days on which he was observed. For example, on 17th September, 2015 the plaintiff was cutting but there were other people present and thirteen days later when the plaintiff was cutting with a chainsaw there was a second person present. One day after that he found the plaintiff on his own splitting logs. He confirmed that there was no activity on the part of the plaintiff on 21st, 22nd, 28th or 29th September, 2015 and he said that over two days other people were doing similar work but the plaintiff was not there.
64. With reference to 2nd October, 2015 he confirmed that others were working that day, not the plaintiff.
Evidence of Anthony Dignam
65. This witness was an employee working now with Bulmers but had worked with the defendants for eleven years prior to this as a production manager until June 2016. At the time of this accident this witness confirmed that he was a night shift supervisor. This witness said that it was not permitted to ask a person to get down from the machine and that he doesn’t recall the plaintiff coming to him and felt that he would have reported it himself. He said that if a person was injured severely one would call for medical assistance and that it therefore would have come to his attention.
66. Under cross-examination this witness confirmed that he would have very little to do with the area in which the plaintiff allegedly fell and that it wasn’t his shift or area of responsibility. He clarified that it would not have been his duty to do an accident report form but he still would have reported such an incident.
67. He said that he would have been aware that there were issues about the number of bottles and that there was a premium on clearing blockages but not at the risk of safety and he agreed that he probably had used the phrase attributed to him by the plaintiff.
Anthony O’Loughlin, Operations Manager
68. This witness confirmed that the plaintiff was taken on a seasonal shift and that in 2010 there was an extra shift in the evening and that the plaintiff at the time was doing a course of study and he was free from 5pm to 10pm and it was ideally suited to him. He described the plaintiff’s employment as due to stop at the end of the summer in any event. The plaintiff had a forklift licence and had been five to six weeks on the particular machine in question.
69. With reference to the photographs this witness confirmed that it was very rare that blockages occurred higher up on the machine past the rail but it was not unknown. He said that guys normally get a ladder and this involves a technician or senior operator and he said that such a person was allowed to go up a ladder. The general operative would report to the senior operative. The general operative was not allowed to go up He had never seen a person climbing. The frame was for an electrical panel. He said Peter would never have asked the plaintiff to go up on the machine as described by the plaintiff.
70. Mr. O’Loughlin described the accident procedure and said he would come within five minutes if something serious had arisen. He said that the accident hadn’t occurred and he said it was a small working environment like a village and he said we would all know about it. This witness said that it would be a rare event to receive a letter about a claim and that he would have taken directions from solicitors before replying. He said he remembered a reply in response to Mr. McGrath’s letter. There were no documents or no incident report form received. This witness had it put to him that the evidence of Mr. Weste was that he handed in one sick certificate. There was no challenge to the accuracy or otherwise of this. He said he wasn’t aware what the wife was going to say and he asserted that there was no evidence of sick certificates having been handed in, and that perhaps they weren’t given in or perhaps that Mr. Weste made an incorrect statement. He said that he contacted Mr. Weste to find out what was his recollection and was surprised now to hear what Mr. Weste was saying.
71. This witness said that Mr. Weste is not in good health at the moment.
72. This witness said that he was twenty years with the company, had worked his way up, and that he would have taken it personally if somebody was making up a story. There are no certificates on his file. He presumes that the plaintiff was absent without leave and that no inquiries were made and he presumed therefore that the plaintiff left the workplace early and he said the operation was being scaled down at that stage in any event.
73. This witness confirmed that the machine in question produces 100 bottles per minute and that all machines run simultaneously. This witness confirmed that there was three to four minute lead time before there would be actual loss in production and that then the machine would lose 100 bottles per minute in terms of production.
74. It was put to this witness that the plaintiff said that he had lifted armfuls of proforma and had thrown them back and this witness said that that made no sense.
75. Mr. Yron Potes gave evidence and said that he was eleven years working in the factory and that he himself was a training co-ordinator. He said that he worked on how to run and start and stop the machine and that he would never touch mechanical parts. He said Sidels 1, 2 and 3 were identical machines. He confirmed that photograph 1 showed the rail dropping down and photograph 2 showed that new employees would be told not to touch machines as they have no mechanical experience. This witness said that the employees were told that if the machine broke they were to call the shift supervisor or the senior operator and to let him know.
76. Under cross-examination this witness confirmed that he was on holidays on 15th September, 2010. He said lots of things can go wrong and that employees are not told what to do but to go to a senior operative.
77. Peter Czernezewki described his position with the company as a general operative for the previous eleven years and that he had been promoted eight or nine months ago. He confirmed that he was working on the date in question in September, 2010. He denied the plaintiff’s version that he went to Sidel 2 and that the plaintiff went to Sidel 3 and said he was never working up there without a ladder.
78. He first asked whether they could free the blockage from the floor by using a bar, and said that if they weren’t able to fix it they would call a supervisor. He denied going up on the machine because he said if he did he would be sacked. He said first of all one would see could one free the blockage from the floor and one would have two to three minutes to get the ladder up to the top and see the problem. He said that any problem Mr. Cahill had he would have to call him and that he was not allowed to clear the blockage himself unless it could be freed from the floor. This witness said that there was always a ladder behind C2 or C1 or that it could be in the store in the same area. One could then bring it to Sidel 3, climb up to the top, and the time starts when one is at the top. It costs two to three minutes in production and he said one could not take short cuts when afraid of losing one’s job.
Submissions of the defendant
(a) That the accident the subject matter of the within proceedings did not occur.
(b) That if the accident did occur, the plaintiff acted contrary to his training in climbing the Sidel 2 bottling blowing machine and not using a ladder
(c) If, which is not accepted, the accident did occur, the plaintiff has exaggerated his injuries.
79. The defendants argue that the plaintiff’s evidence is both inconsistent and unreliable and raises the Supreme Court decision of Shelley-Morris v. Bus Átha Cliath – Dublin Bus, (unreported judgment dated 11th December, 2002).
80. In addition, the defendants argue that s. 26 of the Civil Liability and Courts Act 2004 applies to this case and should lead to the case being struck out by reason of false and misleading evidence on the part of the plaintiff. Denham J. in the Shelley-Morris case observed that there are three possible circumstances where s. 26 might apply. Firstly, where the whole claim is concocted i.e. a fraudulent claim. Secondly, where there is a genuine claim but where there is an exaggeration by the claimant of his injuries because of his subjective belief that the injuries have a worse effect than they have. She described this as involving no conscious lying by a plaintiff and indicated that in such circumstances the judge ought to determine the value of the damage suffered in accordance with the evidence but would not condemn the evidence of the plaintiff.
81. The third type of situation occurs where a genuine case establishing negligence is made, but with a plaintiff deliberately exaggerating injuries. At this point the judge hearing the case must exercise judicial discretion with reference to the credibility or otherwise of the witness leading to a situation where, if the court finds that the credibility of the witness is so undermined that the burden of proof has not been met, then the trial judge will dismiss the claim. Before this is done the trial judge may assess the credibility of the witness in light of the evidence of other witnesses. It is important to note that the Supreme Court upheld the finding in Shelley-Morris that the plaintiff exaggerated her injuries but the court declined to dismiss her claim in its entirety. That position has now changed as a result of s. 26 of the Civil Liability and Court Act, 2004 where it is now mandatory for the Court to dismiss a claim where the Court finds a plaintiff guilty of exaggeration of the type envisaged in Shelley-Morris . It is mandatory for the Court to dismiss the plaintiff’s claim where the Court has found that the plaintiff has given or reduced or dishonestly caused to give evidence that is either false or misleading in any material respect and secondly, that he knows that evidence to be false or misleading.
82. Eleven principles arise in the recent Court of Appeal decision of Irvine J. in Platt v. OBH Luxury Accommodation Limited [2017] 2 I.R. 382.
(a) Section 26 requires that the defendant establish an intention on the part of the plaintiff to mislead the court and secondly that he or she as adduced or caused to adduce evidence that is misleading in a material respect.
(b) A false and/or misleading evidence must be sufficiently substantial or significant in the context of the claim that it can be said to render the claim fraudulent.
(c) The defendant is not required to establish that the entirety of the plaintiff’s claim is false or misleading in order to succeed on such an application. Proof, for example, that a plaintiff’s claim for loss of earning was false or exaggerated to a significant extent may justify the dismissal in total of another wise meritorious claim.
(d) The defendant in the course of the hearing must afford the plaintiff an opportunity of counteracting the assertion that he gave false and/or misleading evidence or caused such evidence to be adduced on his behalf, knowing it to be fraudulent.
(e) The burden of proof initially rests on the defendant in a s. 26 application. The court should not rush to judgment where the court is relying on an inference from a proven or admitted fact. That interference should not be made likely or without due regard to all the relevant circumstances including the consequence of a finding of fraud. But that finding should not be shirked because it is not a conclusion of absolute certainty.
(f) Once the Court is satisfied that the plaintiff has knowingly sought to mislead the Court to a material extent, the onus must be on the plaintiff to then establish by whatever means or argument as may be available to him or her that it would be unjust to dismiss the action.
(g) The provisions of s. 26 are not to be used as an opportunity of allowing a defendant to escape liability by reason of the frailty of human recollection or the accidental mishaps as so often occur in the process of litigation. (O’Neill J. in Smith v. Heath Service Executive [2013] IEHC 360.
(h) Section 26 is designed to operate as a significant deterrent to claimants who might be minded to achieve an unjust result by misleading the court and/or their component concerning the truth of their claim in some material respect. Once the Court is satisfied that the plaintiff has given false and/or misleading evidence and the plaintiff has not adduced evidence that to dismiss the claim would cause an injustice, then the claim as a whole must fail and the legitimate parts of the claim cannot survive. Irvine J. at p. 90 of her judgment took the view that where a plaintiff furnished expert reports, which he or she later withdrew, either before or after the proceedings having commenced, the fact that they are withdrawn does not prevent a defendant from relying on s. 26 provisions, but equally the fact that a defendant has not sworn an affidavit verifying a claim does not bar a defendant from invoking the provisions of s. 26.
(i) When seeking to construe s. 26 of the 2004 Act, in a proportionate and fair manner, it is relevant to consider the extent of the falsity of the evidence, what the plaintiff hoped to gain from the false and/or misleading evidence tendered and whether the plaintiff had sought to deceive their own experts as well as those of the defendant.
83. What the court must consider:
1. The pleadings and reports and updated particulars of personal injuries. It is not necessary for me to repeat these in detail but it is quite clear from an examination of the “Further particulars of injuries” and also from the updated particulars of loss that the plaintiff claims that his quality of life is poor with pain from the neck of the left Temporomandibular joint as well as Paraesthesia in his hands with tingling and numbness and tenderness along the Para spinal muscles in the lower lumbar area with straight leg rise 80 degrees on both sides. In addition, the plaintiff advised the court and the defendant that he was unable to drive due to his symptoms or to undertake any work and was on disability benefit with severe pain particularly in the lower back and right leg and in the neck and right upper limb and that he was experiencing constant pain and discomfort in these areas.
84. In the updated particulars of loss, a claim for loss of earnings to date and for future loss of earnings (assuming retirement age at 68) were included. There was no qualification in the updated particulars of loss as to the extent of past and future loss of earnings being claimed.
85. Susan Tolan, Occupational Therapist, identified a number of significant barriers to employment as a result of her assessment, including the fact the plaintiff does not believe that he will work again in her view, and that he is therefore unlikely to either seek employment or undergo vocational training while he believes that he is unfit for work. Dr. Deirdre Gleeson, Specialist in Occupational Health, noted his complaints but felt that her physical examinations of him was normal.
The Defendant’s submissions on the Plaintiff’s evidence
86. The plaintiff described falls and lack of stability and that he had difficulty in standing for too long and that he was quite uncomfortable. He said it was like being stabbed in the lungs and that he felt that it was like “knocking the wind out of you” and that he could suffer massive spasms. In his view he is unemployable. He was particularly asked about being able to roll about the floor with reference to a photograph where his sister-in-law was falling upon him and he was laughing, and about his getting onto a rollercoaster which he described as a small mini-rollercoaster, although he accepted it it had a steep gradient and he said that he had no qualms on that. The plaintiff was also shown a different ride where he was shown descending at rapid speed and he agreed that he was enjoying himself and was not nervous and that he didn’t seem to have any pain or disability. It was pointed out that, significantly, the plaintiff admitted that his back did not trouble him after these rides. It is argued by the defence as being at variance with the reality for a man who claims to be in constant pain 99% of the time and liable to suffer a severe spasm on “sneezing”.
87. The plaintiff was shown photographs of himself cutting timber, loading and sawing, and admitted that he split the timber with an axe, that he was able to bend down, pick up blocks, load them onto a trailer and that he was able to use a chainsaw. The plaintiff admitted that he had used a chainsaw to saw the blocks and cut blocks and load the trailer all in the “one day”. He denied experiencing a velocity of vibration when it was put to him that if the log doesn’t split at all that all that velocity and momentum comes to an abrupt halt and gives a jar to the shoulder up the arm and shoulder. He said he had not experienced that. He said he did all this work in one day and that he could only use the chainsaw for a limited amount of time. He argued that he told the doctors he could do physical activity within reason until his back or his neck would no longer allow him do it.
88. The evidence of the private investigator is referred to and in particular that on the 17th September, 2015 the plaintiff’s home was put under surveillance from 10am till 12:30pm. The plaintiff was observed splitting timber for that period together with another person. Likewise, on 30th September, 2015, reference was made to the evidence gathered when surveillance was carried out on that date from 12noon till 4pm during which time the plaintiff was observed using a chainsaw. He was also observed with a younger male filling the trailer with cut logs. The plaintiff was the only person present observed cutting timber on 1st October, 2015 from 1pm to 3:30pm.
89. Again on 2nd October, 2015 the plaintiff was observed cutting timber with an axe. It was argued that none of the events referred to were once off events nor were they for a short period of time.
90. In terms of the plaintiff’s description of the accident reference is made to the reply to para. 3A of the particulars, when the plaintiff asked the question as to who had instructed the plaintiff to climb upon the hopper. By reply on 2nd August, 2013, “it was normal practice to climb onto the hopper in order to free the blockage. On the occasion in question the plaintiff had informed his supervisor (Mattie) that the hopper was blocked and that he was going to climb up to free it. While he was on the hopper freeing the hopper, he was observed by the nightshift supervisor ‘Anthony’ who passed no comment as this was a regular occurrence”.
91. At the hearing, the plaintiff described his own Sidel 2 machine breaking down and that he then went to Peter who was working on Sidel 3. The plaintiff identified that Peter was at the top of Sidel 3 machine emptying the preform orientator redbox. His evidence had been that he went to his colleague Peter and told him that he had a problem with Sidel 2, that he had tried to reset the timing on it and couldn’t get it to restart, and that Peter said to him to clean up the orientator and that Peter would go and fix the plaintiff’s machine. He then climbed on the machine where Peter was and started bending in forward, catching the preforms and throwing them back into the hopper. The defence point out that this an entirely different account was given by the plaintiff in his replies to particulars, and that his evidence of how the accident happened should have been included properly in the replies to particulars, and that the two accounts could not be reconciled. It is also pointed out that there is no independent evidence of any witness seeing the plaintiff falling or being paralysed on the factory floor. His colleague Peter denied outright any suggestion that he had directed the plaintiff to climb up on the Sidel 2 machine.
92. Although the plaintiff claimed to have reported the accident to Anthony Dignam, he said in his evidence that no such complaint was made to him.
93. It is argued that regarding a previous accident suffered by the plaintiff, he indicated in his evidence that he was only out of work for four or five weeks in relation to that accident. Nonetheless, his personal injury summons, which issued in March, 2012 regarding those injuries stated that: “the plaintiff’s injuries resulted in gross soft tissue injuries to his lower spine and his prognosis and outlook should be regarded”.
94. It is argued on behalf of the defendants that, given the plaintiff’s personal presentation in court, he sought to promote his disability. He was slow climbing into the witness box throughout the trial and maintained his varying positions of sitting and standing in court. His own subjective presentation of his symptoms, it was suggested, was misleading, and could not be reconciled with the surveillance carried out by Declan Clarke in September, 2015. In particular it was argued that a man who feels that his own hand is not his own accepted that he used a chainsaw, and a man who believes that he is liable to fall, that his legs are dead, that it is unsafe to drive a car, willingly took up a chainsaw. The plaintiff in their submission describe their clients’ employment with the defendant as a seasonal temporary employee in May, 2010, working 5pm to 10pm evening shift initially. He was obliged to man the Sidel 2 machine within the tabard area where “preform” plastic bottles were blown into full sized bottles. The work then was extended till 1:30am. The accident occurred on 15th September, 2010 at 9:30pm when the plaintiff was working on his Sidel 2 machine and a problem developed with the timing. He then went to the Sidel 3 machine and found Piotr Czernejwski standing on the frame of the machine clearing by hand a blockage of preforms in the top of the machine. Having explained his difficulty to this gentleman, he was told by him to finish up what he was doing while Mr. Czernejwski went to investigate the problem with the plaintiff’s machine.
95. The plaintiff proceeded to climb onto the frame of the machine and stood on the uppermost bar while clearing the blockage by hand. While throwing an armful of preforms back into the hopper at the foot of the conveyor he lost his balance and fell backwards. He described striking his head off something as he fell before hitting the ground, landing on his coccyx and elbows. He said that he was on the ground for one to two minutes, no more than three minutes, and that no one observed him during the period as there were only two people working in that area. After that he met Anthony Dignam, the night shift supervisor, to whom he described what had happened and whose response was to chide him for being up on that machine. The plaintiff then worked on the palleting area and was unable to do so due to pain. He told Mattie O’Brien, the evening supervisor, what had happened and that he would have to go home. The plaintiff’s evidence was that he went to a nearby carpark when driving home but that he was unable to continue and had to telephone his wife to collect him. He telephoned the following day to the day shift manager Tom Weste to explain to him what had happened and gave medical certificates for a number of weeks before the plaintiff received a P45 from the defendant in the post.
96. Tom Weste gave evidence that on 16th September, 2010 he received a phone call from the plaintiff to tell him that he had suffered a fall while clearing a blockage and the plaintiff told him he would not be able to come to work that night. Mr. Weste advised him to take the next two nights off and the plaintiff telephoned him the following Monday saying he had been to the GP and that the GP had given him a sick certificate for the following week. The plaintiff’s case was that he handed in the sick certificate in the factory. Without specific recollection, he believes that he would have handed it to the factory receptionist. His wife confirmed his version of events and that she picked up three or four medical certificates and left them into the factory over the following number of weeks and the defendant did not challenge the evidence of either of these two witnesses in relation to the medical certificates being provided to the factory. There is a conflict on the evidence in this regard in that in the plaintiff’s preliminary letter of claim, Anthony O’Loughlin, Production Operation Manager, stated by letter of 3rd March, 2011 that they had no reported accident on site on 15th September, 2010, that no accident report form was filled out, nor had they received any doctor’s cert or hospital certs to say that the plaintiff was out on sick leave. It is pointed out that it is very difficult to reconcile Mr. O’Loughlin’s evidence in this regard with the unchallenged evidence given by Mr. Weste and Mrs. Cahill.
97. The defendant failed to make contact with the plaintiff after 15th September, 2010 and the plaintiff argues that the factory was well aware that the accident had occurred and that the plaintiff had suffered an injury. That is consistent with the fact that medical certificates were handed in for a number of weeks before the plaintiff was given his P45. It is argued that the plaintiff therefore has established on the balance of probabilities that the accident described by him occurred in the course of his employment with the defendant on 15th September, 2010.
The Plaintiff’s submissions on the negligence of the Defendant
98. It is common case that there was a practice whereby employees climbed onto the frame of a machine to free a blockage and that same constituted an unsafe system of work. Mr. Jack O’Reilly, Consulting Engineer, gave detailed evidence in relation to the dimension and functions of the machine in question and stated that the upper most bar of the frame of the machine was seven feet above ground level and this was the bar on which the plaintiff says he was standing when he fell. He expressed the view that if an employee climbed onto this bar it would not be a safe system of work. The correct means of access ought to be by way of a platform with handrails and toe boards. While the defence did not dispute Mr. O’Reilly’s evidence, they claimed that the practice of climbing onto a machine did not exist and that where a blockage occurred it would a task for a fitter or senior operator to gain access using either a scissors lift or ladder. Evidence was given by Thomas Sheehan who worked as a production manager for the defendant for sixteen years. He said that the tabard was his main area and he described the different types of blockages in the preform orientation rollers which could occur a number of times in the course of a twelve-hour shift when it would be necessary to climb the machine in order to free it.
99. There was a dispute on this evidence, with a number of employees called to give evidence to refute this. The risk assessment document provided by the defendant on discovery and referred to in the evidence of Mr. O’Reilly, Engineer, identifies as a hazard the risk of a hand becoming trapped in the preform orientation rollers. Such a risk could only arise if an employee was trying to clear a blockage at the top of the machine by hand. Mr. O’Loughlin said in evidence that once a machine stopped running it would be three to four minutes before production would be affected. Mr. Pitor Czernejwski stated that once one had access to the top of the machine, it would typically take three to four minutes to clear a blockage by hand. This meant that time spent looking for a ladder or other means of access and setting it up would reduce production time. It is submitted therefore that it is entirely understandable that a practice of adopting a convenient but unsafe means of access to the top of the machine developed.
The Plaintiff’s submissions on the medical conditions of the Plaintiff
100. The objective evidence, it is submitted, shows that the plaintiff sustained a soft tissue injury to the neck, lower back, elbows and between the shoulder blades. He was treated with anti-inflammatory and pain killing medication by Dr. John Carey GP. He underwent physiotherapy. He developed, over time, radiation of pain to the lower back and to the legs, his right leg in particular, and pins and needles going down the right arm into his hand as well as pain. X-ray investigations included the following:
(i) X-rays of the lumbar spine taken on 4th February, 2014 showed an absence of the normal lumbar lordosis which was considered consistent with muscle spasm with reference to the second report of the 16th February, 2018 of Mr. Kaar.
(ii) An MRI scan of the cervical spine of 3rd June, 2015 showed degenerative changes from C3 to C7 with bilateral foraminal stenosis and degenerative change at C6/7 more so on the right than the left;
(iii) MRI scan of the lumbar spine taken on the same date, which also showed degenerative changes at L4/5 with moderate stenosis;
(iv) EMG studies of the upper and lower limbs carried out on 28th day of September, 2015 which showed chronic neuropathic features of the C7 T1 distribution on the right, implying right lower cervical radiculopathy and similar features of the LS S2 and the L2-L4 distributions in the legs, implying lumbosacral polyradiculopathy.
The plaintiff was prescribed Neurontin for nerve pain and the antidepressant Fluoxetine by his GP Dr. Morrissey in the summer of 2017. Dr. George Kaar, Consultant Neurosurgeon, saw the plaintiff on 21st December, 2015 and on 15th February, 2018, when he made positive findings on clinical examination in relation to the movement of the lower back and he considered that a fall from a height such as that described by the plaintiff would give rise to a significant strain to the neck and lower back. This doctor found that the results of EMG studies indicated irritating or stretching of the nerve roots emerging from the cervical and lumbar spines and that this was more likely to be due to trauma where there was a background of stenosis in the cervical and lumbar spine as shown on the MRI scans.
105. The doctor found that there was no improvement in the plaintiff’s symptoms and that problems with radiation of pain had increased and that the plaintiff had become depressed and he felt that that was a significant factor militating against his recovery. He described the plaintiff’s symptoms as being both physical and psychological but he did not see the plaintiff returning to his pre-accident levels of activity and he was likely to remain unfit for physical work.
106. In the plaintiff’s submissions it is argued that Dr. Seamus MacSuibhne, Consultant Psychiatrist, shortly prior to the commencement of the trial, diagnosed the plaintiff as suffering from a depressive disorder which he described as being between moderate and severe, and he said that this was an independent diagnosis and he was not reliant on medical reports concerning physical injuries suffered by the plaintiff. Its context was the pain and the impact on his life and activities of daily living. He found him not to be currently fit for work. This doctor put the plaintiff on a different medication and recommended cognitive behavioural therapy. He said the plaintiff might be fit from a psychological point of view to return to some work within a period of twelve months, all going well.
107. Dr. Gleeson by contrast felt that the plaintiff could return to “full normal duties without restriction”. She did not consider it necessary to consider the results of investigations such as MRI scans and nerve conduction studies before concluding that the plaintiff was fit for work.
108. The defendants did not challenge Dr. MacSuibhne’s evidence that the plaintiff is suffering from a depressive disorder. The Court is urged to prefer the evidence of Dr. Kaar because of his particular expertise and his clinical examination but also because of the x-ray, MRI scans and EMG studies and because of Dr. Gleeson basing her opinion solely on her clinical examination and that she did not consider the results of the various investigations had any relevance one way or the other. It is noted that Dr. Gleeson’s opinion did not appear to take into account the plaintiff’s depression and how that might be affecting his capacity to rehabilitate himself. The plaintiff argues that there is inconsistency in the defendant’s position in that initially they argue that no accident occurred and then they proceed to argue that the plaintiff exaggerates his injuries.
109. It is argued on behalf of the plaintiff that he did not give evidence to the effect that he was completely disabled. He said he had good days and bad weeks. He candidly admitted that he had used a hedge trimmer to cut hedges and a saw and axe to cut and chop timber and he agreed that he did this with the assistance of his four sons in autumn 2015, when he was under surveillance by Mr. Clarke.
110. Regarding the Facebook profile of someone other than the plaintiff who showed the plaintiff engaged in various activities, as well as the photographs taken by Mr. Clarke, Dr. MacSuibhne did not consider that any of these activities were inconsistent with this diagnosis of depression and Ms. Susan Tolan, Occupational Therapist, felt in particular that engaging in the chopping of timber was part of a family activity and that that could possibly have a therapeutic effect for the plaintiff. While the defence submissions note that Dr. Kaar accepted a proposition put to him in cross-examination that the depiction of the plaintiff in the photographs and surveillance “would not be consistent” with his presentation to Mr. Kaar, the plaintiff has no note or recollection of Mr. Kaar giving this evidence, but does recall that Mr. Kaar drew a distinction between the plaintiff chopping timber at his own pace, and as part of a regular activity which he would be expected to carry out in the course of full time employment. It is submitted that the photographic and surveillance evidence does not demonstrate that the plaintiff gave false and misleading evidence as to the extent of his disability and his inability to work. It is submitted that this material does not demonstrate that the plaintiff is fit for physical work on a full-time basis. As the report and evidence of Susan Tolan indicates, the plaintiff had a history of continuous employment prior to this accident but the work he did was of a physical nature. Although the plaintiff has obtained a FETAC qualification to work as a care assistant this is pointed out to be a physically demanding job involving heavy lifting, carrying and manual handling.
111. The submissions of the plaintiff point to the fact that it is not sufficient for a defendant to establish that the plaintiff has given false and misleading evidence on a material issue but that critically, the defence must also establish that same was knowingly given by the plaintiff. The subjective test in Aherne v. Bus Éireann [2011] IESC 44 at para. 34 is referred to. The Court must be satisfied as a matter of probability that the plaintiff knows he is giving evidence which is false and misleading. This is an important consideration in circumstances where the evidence shows that the plaintiff suffers from a significant depressive disorder. It is clear from the evidence of Dr. MacSuibhne and Mr. Kaar that the plaintiff’s depression may be affecting his perception of his injuries and his capacity to engage in meaningful activity. Dr. Gleeson suggests in her report and evidence that the plaintiff may have chronic pain syndrome, a condition which she described as having “biological, psychological and social influences”.
112. It is argued that the medical evidence in the case and the fact that the plaintiff’s mood swings in the years following this accident where this contributed to the breakdown of his marriage is at odds with the picture which the defendant seeks to paint of the plaintiff as a “malinger”. The actuarial report was admitted in evidence without formal proof. It is submitted that figures for both past and future loss of earnings are calculated on the assumption that, but for his accident, he would have obtained work as a care assistant earning €641.00 net per week. The report gives a range of figures for both past and future loss of earnings depending on the assumptions applied and the fact that the figures are put forward in the actuarial report does not equate with the plaintiff claiming that he has an entitlement to recover such sums and reference is made to Nolan v. O’Neill [2016] IECA 298 at para. 56 where Irvine J. in the Court of Appeal indicated:
“I find myself in significant agreement with the submission made by Mr. Counihan S.C. on the plaintiff’s behalf that claims for loss of earnings postdating any particular accident are always a matter of some speculation and that this is why actuaries, when they prepare their reports, often offer a range of options to a court as to the level of earnings which a plaintiff might have expected to earn had they not been injured.”
113. It is argued on behalf of the plaintiff that it is a matter for this Court to determine the extent of which the plaintiff has been or remains unfit to work and if so for how long that is likely to be the case as well as the likely path his career would have taken had the accident not occurred. In this regard, the evidence of Dr. MacSuibhne may be of some importance insofar as he expressed the view that if the plaintiff received the appropriate therapies he might be in a position from a psychological point of view to undertake some work within a period of twelve months. It is submitted that the losses set out in this report do not involve false or misleading evidence so as to engage the provisions of s. 26 in circumstances where there is no evidence to suggest he has been engaged in paid employment since the accident. The plaintiff therefore argues that the defendant has failed to discharge the onus under s. 26 of the 2004 Act.
114. The defence summed up their case by saying that there was fabrication in this case and that if the accident did happen it was the plaintiff’s own fault.
Findings of Fact
115. This Court has considered all of the evidence in the case and notes that there will always be inconsistencies to be balanced and teased out. In terms of the plaintiff’s personality, he comes across as having a willingness to please and to cooperate and, having viewed him carefully as he gave his evidence, it seems to this Court that he is a credible witness. The description of how the accident happened and the description of how he fell and the very particular injuries he suffered, are consistent with the medical evidence, in particular the medical evidence of Dr. Kaar who conducted objective testing and these are listed in the plaintiff’s submissions. Dr. Kaar, giving his particular expertise and objective testing, made findings which in the view of this Court are completely consistent with the description of his difficulties as described by the plaintiff in the medical sense. The Court pays particular attention to the expert evidence of consultant psychiatrist Dr. MacSuibhne. Dr. Kaar also felt that the Court had to take into account the impact of the man’s mental health difficulties on his capacity to rehabilitate. This was also the evidence of Dr. MacSuibhne.
116. The finding of this Court is that the plaintiff did not either exaggerate his injuries in the context of the medical evidence and suffering he had to endure, nor did he willingly mislead the court. The reverse is the case because he willingly and freely admitted that he had been assisting with the preparation of wood with other family members. Dr. Kaar pointed out that he recommended that he exercise during his visits to him.
117. This Court accepts the evidence of the plaintiff that he did produce medical certificates and the Court also accepts the evidence of his wife, from whom he is now separated, who confirmed that she brought some of the certificates in to his workplace for him when he was unwell.
118. This Court finds that the incident did in fact occur and was reasonably foreseeable and that an unsafe system of work was in place. In that regard, the Court accepts the evidence of Mr. O’Reilly, Engineer, in particular when he identified an unsafe system of work in breach of the statutory regulations with the risk of entrapment concerning manual removal of a blockage and a hazard created in how a blockage is removed with no means of climbing up.
119. The Court notes that the plaintiff had been in the course of training to take up what would have been a very good source of income for him and was unable to complete that training as a result of this accident. The Court accepts the position of the plaintiff as expressed through Counsel in relation to the guide as furnished in terms of actuarial figures, but notes also that it was submitted that the Court might prefer to deal with the matter in a general way. This gentleman has been out of work for a long period of time since this accident and at a minimum will be unable to work for at least one year from this point on in accordance with the evidence of Dr. MacSuibhne. If he receives appropriate therapies in the meantime, he may be able to resume employment.
120. This Court prefers the medical evidence adduced on behalf of the plaintiff and the evidence of Dr. Gleeson that the defendants ought to have considered the objective medical findings in terms of MRI testing etc.
121. The point made by Dr. Kaar in relation to the photographs put to him taken by the private investigator for the defence, Dr. Kaar noted that these were snapshots in time and that there was no indicator of the capacity of this particular plaintiff to resume fulltime work.
122. In relation to the other photographic evidence of the private investigator the plaintiff freely admitted to cutting wood himself but he also said in his evidence that he had “good days and bad weeks”. In the overall context of this case, the Court’s view is that this man suffered an injury which he simply should not have suffered at work, nor should he have been put in a position where he was carrying out the task which led to the accident. Sufficient equipment ought to have been in place to comply with the safety regulations as described by Mr. O’Reilly, Engineer. In addition, this Court finds that there was no fraudulent claim in this case, nor did the plaintiff mislead this Court. On the balance of probabilities this accident happened as described by the plaintiff as consistent with his injuries which are consistent with the evidence of his medical advisors. This Court considers that the sum of €85,000 to include pain and suffering to date and pain and suffering into the future is an appropriate award in the light of the above findings, and in particular in light of the medical evidence. This takes into account for at least one year as a minimum the plaintiff will not be in a position to undertake employment. His future is somewhat uncertain because if the therapies recommended by Dr. MacSuibhne do not work then he is at risk of an absence of any further improvement. The court has taken into account very carefully the link made by both Dr. Kaar and Dr. MacSuibhne of the impact of the plaintiff’s depression and mental health issues on his capacity to achieve full recovery.
123. The figure for agreed special damages is €3,450.00 and the figure awarded in general damages is €85,000 giving a grand total of €88,450 and costs on the High Court scale. Stay refused.
Rossiter v. Dun Laoighre Rathdown County Council
[2001] IESC 85 (31st October, 2001)
JUDGMENT delivered the 31st day of October, 2001 by FENNELLY J. [Nem. Diss.]
1. The infant plaintiff, Paul Rossiter, has, for practical purposes, lost the sight of his right eye. He appeals against the award of £120,000 made in his favour by Johnson J in the High Court, stating that it is inadequate.
2. The Plaintiff was born on 2 nd December 1987 and lives with his family in Bray. At the time of the accident the family lived in Dun Laoghaire. On 23 rd March 1997, the Plaintiff had been playing football after school and was passing at or near Fitzgerald Park, Dun Laoghaire, when a piece of wire was propelled from a lawnmower which was being operated by the second named defendant/respondent on behalf of the first named defendant/respondent. It struck him in the eye. The Plaintiff sued the defendants. Johnson J found them liable. There is no appeal on liability. The damages were assessed as follows:
(i) Loss of job opportunity £30,000
(ii) General damages £90,000
Total £120,000
3. The Plaintiff naturally suffered extremely severe pain. He fell to the ground. He removed the piece of wire from his eye. He was admitted to the Eye and Ear Hospital, where he underwent several operations. On admission, an exploratory operation was performed. He had suffered a perforating injury to the eye with much bleeding. As the haemorrhage cleared, he developed a right retinal detachment. On 18 th April, he had very major surgery: a right pars plana vitrectomy with drainage of the choroidal haemorrhage. An attempt was made to reattach the retina. However, macular scar tissue at the centre of the reattached retina resulted in almost total loss of vision in the right eye. At most, he has been left with some peripheral vision.. He has also developed a cataract. His left eye was unaffected
4. The Plaintiff was in hospital until late May. He was able to return to school for only a few weeks at the end of the school year. Due to the need to wear a protective eye patch, he suffered some taunting and bullying at school, while still in Dun Laoghaire. He was then in 4 th class. He missed the entire of 5 th class, apparently due to the school’s concerns about the plaintiff’s safety and worries about insurance. He seems to have caught up since the family moved to Bray.
5. The trial court had the benefit of a very full and helpful report, which was admitted in evidence, from Ms Mary J. Feely, Vocational Rehabilitation Consultant. She reported that the Plaintiff is the eldest of a family of eight children. His father is a kitchen porter in a pub. His mother is a homemaker. At the time of her report (May 2000), he was attending St Peter’s National School in Bray. He had progressed to the Cabinteely Community College by the time of the trial in the High Court. His school reports did not, in her view, indicate a high level of academic attainment. He had, however, good general ability. She evaluated him, on the basis of tests, as being of at least average general intelligence. So far as his capacity for physical work is concerned, he has reasonable average dexterity whichis quite adequate for most general manual tasks. She reported on the effects of his visual disability: he had impaired judgement of depth and distance. He is liable to run into people when playing games. Sometimes he crashes into objects, doors etc., on his right side.
6. Ms Feely’s report and evidence are particularly relevant to the employment effects of the injury. She said:
“Monocularity is a much more significant factor for some people more than others. Those with capacity to develop a career based on intellectual ability and high academic achievement will have a wide range of choices in the first instance, and the disability would simply reduce that range. For a boy who may be dependent to a considerable extent on physical capacity, which would lead to limited options in the first instance, the repercussions can be greater. A not inconsiderable amount of jobs within that category would be either beyond his capacity, or many work environments could pose some potential risks to himself, to others, or to his residual vision.”
7. She considered that, within the social and educational context in which he would be likely to seek employment, apart from physical and visual demands, he would suffer a reduction in options both in terms of the employment of which he would be capable, but also the locations at which he could safely work. In particular, she would rule out working at an unprotected height, which would exclude many construction-related jobs. He could not operate forklifts or even work in areas where there is moving machinery. Ms Feely acknowledged the impossibility of predicting what the plaintiff might do in life. This would be very dependant on the outcome of his secondary education. Here it should be noted that his former teacher gave evidence that he would not be likely to get more than an ordinary levelleaving certificate. In essence Ms Feely thought he would be at risk of suffering some general disadvantage as a result of his disability.
8. Johnson J explained his assessment of the damages as follows:
“The Plaintiff has suffered the loss of an eye. In addition he suffered disruption of his schooling; he suffered, I have no hesitation at all, a great deal of taunting and bullying because of it, but he is an impressive young man; I have little or no doubt that he is going to make his way in the world.
He is working well at the present time as far as I can make out but in addition to that he is doing an evening job every day of the week for half an hour, and thereby earning additional money; this is indeed, to be commended. ……. However Paul has been left without a right eye and this is a very great impediment to go through life with. It may or may not interfere with his income but undoubtedly will interfere with his job opportunities in the future. It will also interfere with his enjoyment of life and a great number of sports and other activities, which he might or might not have become involved with, would have to be, at least handled with a great deal of care but because he now has only one eye left and that is of course vulnerable ….. as to value of the eye at the moment, I am going to make a stab at it because I am not quite certain what the present rate is but I am going to put a figure on a boy of fourteen losing an eye which is going to be with him for the rest of his life and he cannot do anything about it, I am going to put an all in figure of£90,000 on that. For the loss of job opportunity I will add another £30,000 making in all a figure of £120,000. I will make an Order for that amount Decree for £120,000.”
9. The Plaintiff appeals against both headings of the award. It should be noted that the evidence of an actuary was given over the formal objection of the defendants as to the capital value of £1 per week from the ages respectively of 18 and 22 . No other figures were given in evidence to enable a proper actuarial assessment to be made of the likely loss of earnings, if any, of the Plaintiff over his lifetime. Nor, given the age of the Plaintiff and the views of MsFeely could any such figures be conceivably advanced. Hence, the sum of £30,000 represents the considered assessment by the learned trial judge of a sum for possible loss to the Plaintiff of employment opportunity by reason of his disability. Given the uncertainties so well explained by Ms Feely in her report, this was the only approach he could take. Undoubtedly, the effects on future employment prospects are an element that must be taken into account in assessing the Plaintiff’s damages. However, in my view, it should be considered as an element of the general damages. In Reddy v Bates [1983] I.R. 141, to which the parties have referred, though not on this point, McCarthy J stated that “in the calculation of future loss, that evidence must include a satisfactory basis of assessment by way of an appropriate multiplier being applied to a reasonably accurate continuing item of loss.” I prefer to approach the matter, for the purposes of the appeal, on the basis that the award is a single one of £120,000.
As it happens, Reddy v Bates also contains a restatement of the test to be applied by this Court in deciding whether it should interfere with an award of general damages made in the High Court for personal injury. Griffin J expressed himself thus:
“It is well settled that this Court cannot set aside the verdict of a jury on the grounds that the damages are excessive unless, adopting a view of the facts which is most favourable to the plaintiff, no reasonable proportion exists between the amount awarded and the circumstances of the case..”
He cited McGrath v Bourne (1876) I.R. 10 C.L. 160 and Foley v Thermocement Ltd (1954) 90 I.L.T.R. 92. McCarthy J said:
“In order to warrant interference with an award of general damages, the disparity between the views of the individual members of this Court and each item of the award, however large it may be expressed in isolation, must be a significant percentage of that item of the award and, as a general rule, should not be less than 25 per cent. ….. This Court should be reluctant so to interfere and, in particular, …. it should relatively petty paring from, or adding to, awards.”
10. It might be thought that the fact that damages of the kind at issue are no longer assessed by juries would undermine the rationale underlying these dicta. However, Blayney J, speaking for a unanimous Supreme Court, in Dunne v Honeywell Controls Ltd and another [Unreported 1 st July 1993] stated that the “the approach of the courts to an appeal against the quantum of the damages awarded remains the same as before [the Courts Act 1988] with one slight qualification .” That is:
“Since the findings of the High Court judge in regard to the injuries and the medical evidence are set out in detail in the judgment delivered in the case, the Court no longer has the task of adopting the view of the facts most favourable to the plaintiff. The decision is based on the findings of the High Court judge.”
11. The more or less unvarying test has been, therefore, whether there is any “reasonable proportion” between the actual award of damages and what the Court, sitting on appeal, “would be inclined to give” (per Palles C.B. in McGrath v Bourne , cited above. Lavery J, in Foley v Thermocement Ltd slightly inverted the language by posing the question “whether there is a reasonable proportion between the sum [awarded and the appeal court’s assessment] or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable.” The test is one for application as a general principle, even if McCarthy J, in Reddy v Bates (page 151) suggested a possible rule of thumb, the need for at least a 25% discrepancy. That is no more than a highly pragmatic embodiment of his very proper counsel against “… relatively petty paring from or adding to awards.” In this respect, it seems to me that this Court is no longer bound by the special respect due to a jury verdict. On the other hand, it is not a court of first instance. It should only interfere when it considers that there is an error in the award of damages which is so serious as to amount to an error of law. The test of proportionality seems to me to be an appropriate one, regardless – it need scarcely be said – of whether the complaint is one of excessive generosity or undue parsimony. It should, of course, be recalled that this test relates only to the award of general damages, as explained by McCarthy J in a further passage from the same judgment.
12. Turning to the submissions made on the appeal, the plaintiff takes particular issue with the failure of the learned trial judge to break down the award into separate sums for past and future pain and suffering. It is asserted that, in this way, the learned trial judge failed to have sufficient regard to the several aspects of pain and suffering of the plaintiff up to the date of the trial. Counsel for the plaintiff, MrReidy S.C., drew attention to the case of Carroll v Clare County Council [1975] I.R. 221. In effect, therefore, it is claimed that the assessment of damages under separate headings is better suited to ensuring that a plaintiff is fully compensated for all of the elements of damage he has suffered. This argument exemplifies one of two schools of thought have debated this issue over many years. The contrary view, powerfully represented at one time, was that the division of an award– in particular, in an issue paper for a jury, tended to inflate awards. It seems clear that it was in reaction to this second line of argument that this Court introduced the corrective element described thus by Griffin J in his judgment in Reddy v Bates :
“In a case .. .where damages are to be assessed under several headings, the jury, having added the various amounts awarded and having arrived at a total figure for damages, should consider the total sum (as should this court on appeal) for the purpose of ascertaining whether the total sum is, in the circumstances of the case, fair compensation for the plaintiff for the injury suffered or whether it is out of all proportion to such circumstances.”
13. It is not inappropriate to sound one note of warning about unduly literal reliance upon that passage. Griffin J cited as the particular justification for having regard to the total sum the fact that “notwithstanding the ravages of inflation, a very substantial income can be obtained from a large capital sum, while preserving the capital intact.” Circumstances change with the economic cycle. We now live, at least for a time, with comparatively stable prices and low interest rates. In reality, high interest rates usually mirror and compensate for the diminution in the value of money.
In Carroll v Clare County Council , Kenny J, at page 230, complained that the Court had “been severely handicapped in its task of reviewing the damages by the failure to ask the jury to assess separately the general damages up to date of trial and those from that date for the future.” He recalled the many occasions on which the Court had reiterated this point, citing, in particular O’Leary v O’Connell [1968] I.R. 149 . In the latter case, Walsh J said (page 155):
“Here again, it is opportune to indicate that it would be highly desirable in cases of damages, where several elements go to make up the damages ultimately to be awarded and where certain decisions of fact as to future earning capacity and such like have to be decided by the jury before awarding the damages , that the jury should be asked to award damages separately under the various heads which arise in the case so that it may be possible for the parties and, in the event of an appeal, for this Court to know what was the finding of the jury on the relevant issue of fact which went to deciding the amount of damages which should be awarded under each heading.”
14. The reason then for the assessment of damages under separate headings is to facilitate the Court in the performance of its function as a court of appeal. It is not designed to ensure that the court awards to the plaintiff an adequate sum of damages under each heading. It has been pointed out in this Court that it is not required to compute damages under distinct headings when it assesses them on appeal. Where the damages are, as they are now, assessed by a judge sitting alone, it remains equally necessary that the Court be in a position to discern the findings of fact uponwhich damages have been assessed. It is, perhaps, not strictly necessary to assess them under separate heads, so long as the judge makes clear findings of fact, as the learned trial judge has done in this case. Nonetheless, it is likely, in many cases, to be of assistance to continue the practice. In deciding how to structure his assessment of damages, it will be a matter for the trial judge to decide the extent to which separate heads are likely to be of assistance in the particular circumstances of the case.
15. The special aspect of the structure of the award in this case is the assessment of a distinct sum for the damage to the plaintiff’s employment prospects. The learned trial judge has found as a fact– and was entitled to do so on the evidence – that the impediment the plaintiff has “may or may not interfere with his income but undoubtedly will interfere with his job opportunities in the future.” As I have said earlier, this element is an item of general damages. It is nonetheless helpful that the learned trial judge assigned a separate amount to it. It enables the Court to exercise its judgment on the award as a whole. Is £120,000 adequate?
16. The parties referred to a number of decided cases involving the assessment of damages for eye injuries. These may be a useful guide but cannot be treated as in any sense definitive. The facts vary too much. In 1995, Costello J, in a short ex tempore judgment, awarded £100,000 to a “little boy” who had lost the sight of one eye, as it happens, when stones were propelled at him by a lawnmower. The age of the boy is not apparent, but he must have been at least ten at the time of the trial. He suffered also from a bad squint. There is no mention at all of damage to employment prospects. In 1989, the Supreme Court, in allowing an appeal from Murphy J, awarded £100,000 to a thirty five year old man. The facts were more complex. They appear from the High Court judgment of Murphy J. Firstly, the plaintiff already suffered severely reduced vision in his left eye (only 5 to 10%). Secondly, he did not entirely lose the sight of his right (injured) eye. He awaited an operation, to be performed in the space of five years when his sight would have deteriorated to the point where it was necessary.The prognosis was guardedly optimistic. The plaintiff was employed on an apparently stable basis as an executive in a family firm. No separate sum appears to have been identified in respect of damage to employment prospects.
17. It did not seem to be seriously contested, at the hearing of the appeal, that the allocation of a sum of £90,000 for the entire of the pain and suffering of the plaintiff both past and future was, though proper, on the lower side of what would have been permissible. Mr Reidy contended that it was a long way below a proper amount. Insofar as guidance can be derived from the two cases mentioned, I am persuaded that it is significantly less than what should be allowed in respect of the heading of pain and suffering alone.
18. Returning to the sum of £30,000 allowed for damage to employment prospects, it is, of course, impossible to consider this sum in isolation. If the plaintiff had been a person already established in employment at the time of his accident, it is reasonably likely that he would have been in a position to advance a credible actuarial case to justify the award of a capital sum for future loss. That is, of course, to some extentspeculative, but, at least, such a person would have had an objective basis of comparison. Accepting the unavoidable element of speculation, it seems to me that there is a very real danger that the sum of £30,000 would, as a once and for all single payment, represent inadequate compensation for the plaintiff’s lifetime disadvantages in employment.
19. Considered as a whole the award represents a sum of £120,000 to cover: all the pain and suffering of the plaintiff to date (including the disruption of schooling and the bullying at school); the fact of being a one-eyed person for the entire of the remainder of his life with the accompanying defacement of his features, as well as the clearly determined damage to his employment opportunity. In my view the sum of £120,000 does not bear a reasonable proportion to the compensation to which the plaintiff is entitled. It is so low as to satisfy the test which I have mentioned earlier. In my view, the award should be increased to £150,000.
20. Consequently, I would allow the appeal and substitute the sum of £150,000 for the sum of £120,000.
Connell v. McGing
[2000] IEHC 208 (8th December, 2000)
Judgment delivered by Mr. Justice Lavan on the 8th day of December, 2000.
1. I tried this case on Thursday the 30th of November, 2000 and Thursday the 7th of December, 2000. Due to listing commitments I had other duties to perform in the intervening days. The case opened before me, with the Plaintiff claiming damages for negligence on foot of an extensive list of breaches of statutory duty. This is of some significance in relation to the submissions which were made to me by the Defence at the end of this trial.
2. The Plaintiff’s claim is for damages for that on the 22nd day of March, 1995 the Plaintiff, in the course of his employment with the Defendant on board the Defendant’s fishing boat, then situated off the County Donegal coast, was engaged in hauling in a fishing net on board the said vessel when, due to the negligence of the Defendant, his servants or agents, in and about the construction, layout, supervision, training, control and employment of competent employees, the Plaintiff was dragged along the deck of the said vessel, whereby he sustained personal injury, loss and damage.
3. The Plaintiff furnished particulars of negligence and breach of duty and they are fully set out in the statement of claim. Suffice to say that having read the pleadings before the action commenced, I was fully aware that the Plaintiff’s cause of action
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was framed in terms of a breach of duty, at common law and a breach of statutory duty, as therein set out.
4. The Plaintiff’s case was opened by Mr. Gordon S.C. in a reserved but robust fashion. At the conclusion, Mr. Nugent, Counsel for the Defendant, indicated to the Court that he would not be strenuously challenging a finding of negligence against the Defendant, his client. He would nonetheless be seeking to make a substantial case of contributory negligence against the Plaintiff having regard to his age, experience and skill.
5. I accepted that admission as constituting an admission of breach of statutory duty as well as breach of common law duty of care, and the case so proceeded.
6. Having regard to that submission a Court would have little difficulty in concluding that the Plaintiff would and does succeed on the issue of negligence. I therefore have no difficulty in concluding that the Defendant is liable to the Plaintiff on both a statutory and common law basis.
7. What occurred was as follows which account I accept as fact. The Plaintiff was on duty at the stern of the said boat when the Defendant crew commenced the difficult and hazardous operation of hauling in the net then full of the catch. To the knowledge of the Defendant (for at least six months prior to the accident the subject matter of this case) the crew man operating the haulage machinery was unable to see the net as it was being hauled out the stern of the boat. Any hitch in the retrieving process could be dangerous to the safety of the boat and crew.
8. The Plaintiff was close to the stern rail and as the hauling operation was taking place a hitch arose whereby the net was about to snarl. The Defendant’s attention was drawn to this and appreciating the necessity of guiding the net rope onto the
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machinery he sprang to the net rope to guide it in. In the course of this, his ankle was caught in the heavy netting whereby he sustained his injury.
9. Having heard the evidence and submissions over two days I am, upon the evidence, left with one issue, on liability, to decide, namely the degree of contributory negligence (if any) of which the Plaintiff may be guilty.
10. I especially note that, notwithstanding the trenchant cross-examination of Mr. James Sheehan – the remainder of the medical evidence is agreed between the parties.
11. In respect of the issue of contributory negligence, I have the following opinion to express.
12. The matters pleaded by the Defendant in his defence, delivered on the 12th of October, 1998 are as follows:-
a. Failing to take reasonable care for his own safety;
b. Failing to keep any or any adequate lookout for his safety;
c. Failing to act in accordance with his established experience as a fisherman;
d. Causing or permitting his foot to become entangled in the netting;
e. Failing to alert and/or warn the Defendant, its servants and agents that his foot had become caught in the netting;
f. Exposing himself to the risk of injury;
g. Causing himself to suffer personal injuries, loss and damage.
13. The Defendant further reserved the right to raise particulars of negligence and/or contributory negligence at the trial of the action.
14. The issue as to whether a breach of statutory duty was established is of importance in this case for the following reasons.
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15. The object of the particular statutory obligations relied upon by the Plaintiff in this case is, to my mind, to compel the employers of a trawler such as this, to take certain precautionary and preventative measure designed to reduce the possibility of accident. It is my view that the particular section imposes an absolute obligation in the event of the precautionary and preventative measures not achieving their ultimate object.
16. The Defendant made the case that because the Plaintiff had engaged, along with other crew members, in a discussion with the Defendant as to the safety alterations which ought to be taken in regard to the fishing vessel in question, he should therefore be made liable. It has, however, long been accepted that there is no defence of delegation of a statutory duty whereby a person subjected to a statutory duty can relieve himself fully of liability by claiming that he has delegated the duty or its performance to another. The general principle received statutory recognition in section 57(2) of the Civil Liability Act, 1961 which provided:
“It shall not be a defence in an action for breach of statutory duty merely to show that the defendant delegated the performing of the duty to the plaintiff”.
17. The defendant cannot escape liability for breach of his statutory duty by arguing that he diluted his obligation to provide a safe workplace by discussing the matter with his employees.
18. However, while delegation of a statutory duty is not a special defence this does not mean that the defendant will always be fully liable in every case where there is apparent delegation. The principles of contributory negligence still apply. In Ginty v. Belmont Building Supplies Ltd. [1959] 1 All ER 414 at 423-424 Pearson J. captured the principle:
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“In my view, the important and fundamental question in a case like this is not whether there was delegation, but simply the usual question: Whose fault was it?…”
19. In an action for breach of statutory duty, contributory negligence has a different meaning from that for an action for common law negligence. There is an essential difference in the nature of the acts and the quality of the acts which would amount to contributory negligence in the one vis-a-vis the other. It seems to me that the essential difference is that in relation to statutory duty an error of judgment, heedlessness or inadvertence, will not constitute contributory negligence, because the statutory protection was passed for the express purpose of saving workers such as the Plaintiff from their own carelessness and inattention. While in relation to contributory negligence and a common law duty, an act of inadvertence, if it is an act which a reasonably careful workman would not do, will constitute contributory negligence. See Higgins v. South of Ireland Asphalt Co. Ltd. (1961) 101 ILTR 168 (SC).
20. The principles in relation to breach of statutory duty and contributory negligence were enunciated by the Supreme Court in Stewart v. Killeen Paper Mills Ltd. [1959] IR 436 and Kennedy v. East Cork Foods [1973] IR 244. In Kennedy a jury had found contributory negligence against the plaintiff in relation to his claim for common law negligence but had exonerated him of contributory negligence in his claim for breach of statutory duty. In the Supreme Court O’Dálaigh C.J. quoted with approval Henchy J.’s direction to the jury in the High Court where the learned judge had stated in relation to contributory negligence and breach of statutory duty:
“[The plaintiff] must enter into the realm of downright carelessness, because the Factory Act was passed for the express purpose of saving factory workers from their own carelessness, and their own inattention. The plaintiff would not be guilty of
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contributory negligence unless you are satisfied that what he did was not simply inadvertence, normal forgetfulness, normal inattention, but he was in fact negligent and careless in a more positive and definite way.”
21. O’Dálaigh C.J. further adopted Lord Wright’s statement in Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] AC 152 that
“The policy of the statutory duty protection would be nullified if a workman in a factory were held debarred from recovering because he was guilty of some carelessness or inattention to his own safety, which though trivial in itself threw him into danger consequent on the breach by his employer of the statutory duty”.
22. The Court must take into account, as Lawrence J. stated in Flower v Ebbw Vale Steel, Iron & Coal Co. [1934] 2 KB 132, that “it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence”.
23. These principles have been implemented in practice by Barron J. in Dunne v. Honeywell Control Systems Ltd. and Virginia Milk Products Ltd. [1991] ILRM 595 and in Kelly v. McNamara High Court (Budd J) 5th June, 1996, unreported.
In Dunne v. Honeywell Control Systems Ltd. Barron J. held that the plaintiff was not guilty of contributory negligence in relation to his claim for breach of statutory duty. He reasoned
“The plaintiff was not taking sufficient care for his own safety, not through any positive act on his part, but because the danger did not occur to him.”
24. The threshold of negligence in a “more positive and definite way” was not reached.
25. On the other side of the line, in Kelly v. McNamara Budd J. stated that he did “not think that the plaintiff as an experienced carpenter and an obviously responsible and competent tradesman can escape all liability for succumbing to the taking of an obvious risk”. He held that “a small portion of the fault must be ascribed to the Plaintiff for putting himself in peril…”
26. Turning to the case in question, I accept that the Plaintiff was an experienced seaman/fisherman. I nonetheless find it difficult to accept that because an employee is
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engaged in discussing with his employer matters that might be rectified in relation to the day to day work of a particular vessel that the employer in some way is permitted to delegate his, the employer’s duties, or to raise it as s defence as against the Plaintiff in this case.
27. My view of the evidence is that what was in operation on the day of the accident was a dangerous operation to the knowledge of the Defendant. He may not delegate his duties under the statutory code in this regard.
28. On the evidence the Plaintiff acted in a moment of crisis. The transcript contains a detailed account of how this occurred. He, the Plaintiff, ought not to have been required to so act. Therefore, on the evidence, I accept the Plaintiff’s account, it is uncontradicted, the very complaint that the Plaintiff has is that no other person could have foreseen the actual events which led to his injury.
29. I have considered the Defendant’s allegation of contributory negligence and, on the evidence, I am unable to conclude that there should be a finding of contributory negligence. I now turn to an assessment of damages.
30. As to special damages this is an agreed figure in the sum of £7,500.00.
31. As to damages to date and damages in the future I rely on the agreed evidence with the evidence of Mr. James Sheehan. I will allow a figure of £30,000.00 damages to date and a figure of £30,000.00 damages in the future.
32. As to the claim that the Plaintiff may be unable, due to the onset of arthritis, to role as a skipper of the trawler, when he attains the age of 50 or thereafter, I have the following view.
33. I accept the evidence of Mr. James Sheehan on this crucial issue and I clearly accept the agreed medical evidence submitted to me by both parties.
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34. I conclude that on the balance of probabilities there is a problem that may arise at some state in the future, when the Plaintiff is between the age of 50 and 55 years. The Plaintiff on the balance of probabilities may be unable to continue his duties as a skipper.
35. I therefore conclude, doing the best that I can on the evidence laid before me, and accepting the medical evidence, that the plaintiff may lose 2 to 3 years of his livelihood as a skipper. Therefore, in the circumstances I would allow for future loss of wages, a full two years loss of the equivalent of the Plaintiff’s net yearly loss of £37,250.00 (which is agreed between the parties). Therefore, there will be a finding for future loss in the sum of £74,500.00.
36. There will be judgment for the plaintiff in the sum of £142,500.00 together with his costs.
Barry (a minor) -v- National Maternity Hospital & Anor
[2011] IEHC 225 (13 May 2011)
Judgment by: O’Neill J.
Status of Judgment: Approved
JUDGMENT of O’Neill J. delivered on the 27th day of May, 2011
1. The plaintiff in this case, who was born on 9th September, 2005, sustained a severe hypoxic-ischemic insult during the course of labour and delivery, as a consequence of which she was severely asphyxiated at birth, requiring resuscitation by way of being intubated and ventilated. The plaintiff developed acute hypoxic-ischemic encephalopathy and suffers a severe syndrome of Cerebral Palsy (Spastic Quadriplegia) with marked neurodevelopmental difficulties.
2. The plaintiff claims that the foregoing was the result of the negligence and breach of duty of the defendants and sues for damages. The first named defendant has admitted liability. The action against the second named defendant has been struck out with no order. The damages to be paid by the first named defendant have been agreed, save for one item, namely, compensation for the plaintiff’s accommodation needs during her expected lifetime. The other items of damages have been agreed and have been approved by the court.
3. Since her birth, the plaintiff has resided with her parents at 7, O’Connell Gardens, Sandymount in Dublin. Her father, Robert Barry, was born on 4th May, 1973, and his wife, Aisling Campbell, the plaintiff’s mother, was born on 25th July, 1974. They have lived at the foregoing address since December 2003. Amelia Barry, the plaintiff’s sister, was born on 30th April, 2008. Robert Barry’s and Aisling Campbell’s families live in the Sandymount area, very close to the current family residence, and the plaintiff attends school in that area, and her social integration has all taken place in the Sandymount area.
4. Although alterations were carried out to the house at 7, O’Connell Gardens, it is commoncase that this house is not suitable to meet the future accommodation needs of the plaintiff, and for that purpose, a suitable property will have to be acquired. Because of the close family connections that the plaintiff’s parents have in the Sandymount area, and the multi-faceted supports they get from their respective, extended families, the plaintiff’s parents are seeking to acquire a property in that area, which will be suitable for the accommodation needs of the plaintiff for the future.
5. A sum of €875,000 has been agreed between the parties as being the cost of acquiring such a property in that area. A further sum of €283,000 has been agreed as being the cost of adapting the acquired property to meet the needs of the plaintiff. Thus, the total cost of acquiring and adapting such a property is agreed at €1,158, 000. It is further agreed that the expenditure of the said sum of €283,000 to adapt the property would enhance the value of it by the agreed figure of €135,000. The value of 7, O’Connell Gardens, Sandymount, is also agreed in the sum of €550,000.
6. The plaintiff’s life expectancy is agreed at thirty-five years, and damages for the plaintiff’s loss of earnings are agreed in the sum of €350,000.
7. The plaintiff claims the entire sum of €1.158,000 as compensation, on the basis that if she is awarded anything less than that, there will be a shortfall from the sum necessary to purchase and adapt a house for her future accommodation, and to make up this shortfall, the plaintiff will be forced to resort to damages awarded under other headings e.g. general damages or damages for loss of earnings, to enable her to purchase what is agreed to be necessary accommodation for her. It is submitted, for the plaintiff, that to satisfy the principle of restitution in integrum, it is necessary that the plaintiff be compensated in this way, otherwise, she will be forced, in effect, to compensate herself by using damages awarded under one heading to make good losses caused by the defendant as tortfeasor under separate headings with the result that plaintiff would be forced to indemnify the defendants in respect of part of its wrongdoing.
8. The defendants’ approach to this aspect of the damages is entirely different. For the defendants, it was submitted by Mr. McGrath S.C., relying upon the approach taken by the Court of Appeal in the United Kingdom in the case of Roberts v. Johnson [1989] C.A., p. 878, that the plaintiff is only entitled to recover the additional expenses of accommodation above and beyond the expenses she would have incurred, but for her injury, and the measure of such additional expense is either the loss on the investment of capital used to meet that additional expense, or, alternatively, the cost of acquiring capital to meet that expense, using a real rate of return of 3% to calculate same. In addition, the defendants submit that the agreed value of the plaintiff’s parents’ must be deducted, as must be the enhanced value resulting from the adaptations to be carried out to the property to be acquired.
9. In deducting the agreed value of the existing home, the defendants say that if this is not done, in effect, an extraordinary role reversal occurs, in the sense that instead of the plaintiff’s parents providing accommodation for the plaintiff, as would be their normal parental obligation until she reached adulthood, the plaintiff would become the provider of accommodation for her parents and any other siblings. In arguing for a deduction of the agreed value of the existing home, the defendants acknowledge that the plaintiff’s parents will be entitled to have an interest in the property to be acquired, commensurate with their contribution to its acquisition. The defendants further submit that the agreed enhanced value, namely, €135,000, resulting from the adaptation of the new property, must be deducted as being extra to the additional expense of accommodation resulting from the plaintiff’s injuries, in effect, a capital bonus. The defendants, thus, calculate their liability under this heading of Damages as follows:
€875,000
– €550,000
€325,000 x 3% (real rate of return) = €9,750.00
This figure is then multiplied by the plaintiff’s multiplier, which is 20.3, which produces a capital value of €197,925. To this figure is then added the sum of €283,000, namely, the cost of conversion or adaptation, which then comes to €480,925. This figure is then reduced by €135,000, which produced a final figure of €345,925, which the defendants are agreeable to round up to €350,000 as being their liability in respect of the cost of future accommodation for the plaintiff.
10. For the plaintiff, this approach was rejected by Mr. Denis McCullough S.C. and Mr. Antoniotti S.C. on several grounds. In the first instance, they say the defendants’ approach wholly fails to adequately compensate the plaintiff for the cost of accommodation, which, it is accepted, is necessary for her. They submit that deducting the agreed value of the parents’ home is forcing the parents to contribute their only asset, in effect, to compensate the plaintiff, thereby relieving the defendants from part of their liability. It is submitted that if the plaintiff’s parents were compelled to do this it would be grossly unfair to them, because their only asset would be tied up inextricably for the benefit of the plaintiff for the duration of her lifetime, thereby depriving them of any opportunity to use this asset to benefit Amelia or other children that they intended to have, or, indeed, to benefit themselves later in life. The unfairness of this, it is said, is exacerbated by the fact that they have a mortgage on the existing family home of in excess of €330,000, leaving their equity at only €217,000 (figures agreed with the defendants). They say that the defendants’ approach wholly fails to award just compensation to the plaintiff for the wrongdoing of the defendants, leaving the plaintiff and her parents in the invidious position of either not acquiring suitable accommodation for the plaintiff, or, if that accommodation is to be acquired, the shortfall in its cost would have to be made up by contributions from the plaintiff in the form of dipping into other heads of damage, and from the parents by contributing the gross value of their existing home, thereby, and to that extent, indemnifying the defendants in respect of their wrongdoing. They reject the approach adopted by the courts in the United Kingdom in Roberts v. Johnson as a wholly inadequate means of ascertaining just compensation in these circumstances. Specifically, they say that the preoccupation of the Court of Appeal with avoiding a windfall gain to the estate of a plaintiff, as evidenced by the method of actuarial calculation chosen, is wholly inappropriate in achieving a correct balance of justice, bearing in mind the catastrophic consequences for the plaintiff’s parents in every aspect of their lives, personal, domestic and professional, resulting from the wrongdoing of the defendants. They urge this court not to follow the reasoning in Roberts v. Johnson.
11. The search for a solution for the difficult problem thrown up in this issue is not easy. As is apparent from the cases referred to from the United Kingdom and, indeed, the consideration of its Law Reform Commission of the issue, an all-round satisfactory solution appears extremely elusive.
12. The starting point in the necessary analysis of the relevant factors which should lead to the appropriate resolution, are the ordinary principles which govern the ascertainment of compensatory damages. The compensation to be paid by the defendants must, insofar as money can do it, put the plaintiff in the same position as she would be in, if the wrongdoing had not occurred. That involves a consideration of the actual effects of the wrongdoing on the plaintiff, and also a consideration of where the plaintiff would be, and how her life would progress, if she had not suffered the injury in question. There is no doubt and it is commoncase that the plaintiff has suffered catastrophic injuries and requires a very high level of dependent care for the rest of her life, including suitable accommodation. In this respect, it is agreed that her life expectancy is thirty-five years. If the plaintiff had not suffered these injuries, the probability is that her life would take the normal course, in the sense that she would have attended school, probably progressed into employment, and in due course, acquired her own accommodation, either with or without the aid of a husband or partner. Thus, factors to be taken into account are that the plaintiff would have acquired accommodation in the future by expending her own income for that purpose. Therefore, what she has to be compensated for is the additional cost of accommodation beyond that which she would, in the ordinary course, herself have incurred in the course of her life, had her capacity to provide for her own accommodation not been destroyed by the injuries suffered.
13. In my view, that is the core decisive principle which must govern the ascertainment of the amount of compensation to be paid to the plaintiff in respect of her future accommodation needs. Insofar as the plaintiff’s claim to the entire cost of the acquisition of the new property and its adaptation fails to take into account at all the actual cost of accommodation as distinct from the capital value of the property in which it is provided, and the value of any accommodation provided to the plaintiff by her parents, it fundamentally departs from the ordinary principles for the ascertainment of compensatory damages, and, in my opinion, such a fundamental change to ancient and time-honoured legal principles would require legislative intervention.
14. In any event, I am precluded from such a departure by the dicta of the Supreme Court in the case of Doherty v. Bowaters Irish Wall Board Mills Limited [1968] I.R. 277, at p. 286, where Walsh J. says:
“Another item of considerable substance is the question of the provision of a suitable house for the plaintiff. Evidence was given that the cost of providing a house suitable for himself and the necessary attendants would be approximately £9,000. Now this is not an item which must be regarded as a wasting expenditure and, allowing for the fact that some considerable part of the total cost may be in respect of the special measurements which are necessary to accommodate the plaintiff and which would not have any appreciable market value for any other purchaser, I think it would be not unfair to allow that the house would retain a value of approximately £5,000 as a capital asset. On that basis the loss to the plaintiff would be approximately £4,000. . . “
Further on, he says the following at page 288, apropos windfall gain:
“Similarly I think it is fallacious to approach the question on the basis of examining what income the damages could produce if invested. So far as the damages are made up of money based on the actuarial calculations, the underlying assumptions, on which the ultimate calculations were made by the jury, contained an assumption of expenditure at a rate which, if continued, would have meant that at the end of the period calculated there would be no residual capital sum. If a person chooses to live on less than that which he is entitled to spend and if he thereby acquires a capital sum which is in existence at the time of his death, that is not a factor to be taken into account in measuring the damages. A person might well find himself spending a good deal more than the sum assumed in the initial calculation, in which event the damages would not even endure for the period originally calculated. In such a case, what he chooses to do with his damages after he gets them is not a relevant consideration in the assessment of the damages or in the consideration of these damages upon an appeal . . . “
15. The first of the foregoing dicta of Walsh J. makes it clear that where a house is to be purchased for the purposes of providing for the accommodation needs of a disabled plaintiff, the value of the capital asset which will accrue to the plaintiff must be discounted, and only the additional cost of providing the necessary accommodation, but which does not result in an enduring or appreciating asset, can be the subject matter of compensation to be paid by the tortfeasor. Thus, the principle seems to be that the defendant is only obliged to compensate for that part of the additional cost of providing accommodation, which is a “wasting expenditure” or, in other words, an expenditure on assets which will be consumed over the expected lifetime of the plaintiff.
16. The second passage from the judgment of Walsh J. quoted above, whilst, at first glance, might appear to give support to the proposition that a court, assessing damages in these circumstances, should not be concerned with the accrual of a windfall gain to the estate of a plaintiff, in fact, on closer examination has the very opposite intent, and underlines the time-honoured principle that the purpose of damages to compensate for additional expenditure is simply to do that, and where a capital sum must be paid to meet a future expenditure, it must be calculated in such a way as to ensure that the capital sum will be fully consumed by the end of the period during which the loss continues. It is because capital sums to compensate in this way are calculated actuarially to exhaust the capital sum over the period in question, that a court need not further concern itself as to how that sum, in the hands of the plaintiff, is, in fact, expended. Thus, as said by Walsh J., if a plaintiff chooses not to spend the capital sum at the periodic rate calculated, but instead, chooses to save it, it is immaterial that some or all of the capital sum is in existence at the end of the period in question. Similarly, if a plaintiff spends the capital sum at an excessive rate and exhausts the capital sum before the end of period over which it was calculated, likewise, the court cannot be concerned, because the defendant will have fully discharged his obligation to compensate. Taking these two dicta together, it seems clear to me that the law in this jurisdiction on the assessment of compensation for the future accommodation needs of a disabled person, excludes an award of compensation which would leave intact at the end of the period for which the compensation is calculated, an enduring or appreciating asset in the hands of a plaintiff, and a capital sum which, under our present system of compensatory damages, is the only way of compensating for a future loss, such as this, must be calculated in such a way, i.e. actuarially, so as to ensure that this capital sum, if spent at the rate envisaged, will be fully exhausted at the end of the period in question.
17. In my opinion, the dicta of Walsh J. in the Doherty v. Bowaters Irish Wall Board Mills Limited case, are applicable to the circumstances in this case, there being no discernible material difference in the type of loss sought to be compensated, and, accordingly, I am bound to follow the judgment of the Supreme Court in that case.
18. The approach adopted by the Court of Appeal in Roberts v. Johnson is essentially consistent with the principles set out by Walsh J. in the Doherty v. Bowaters case. The following passages from the judgment of Stocker L.J. illustrate this. At p. 889, the learned judge said:
“The full difference between the sale price of Hill Cottage and the purchase price of the new bungalow is therefore £68,500 and the plaintiff claimed this sum. The judge awarded the sum of £28,800 including the cost of conversion. The judge’s reasoning appears in his judgment. He cited an extensive passage from the judgment of Orr L.J. in George v. Pinnock [1973] 1 W.L.R. 118, 124-125. It is sufficient, for the purposes of this appeal, to cite only part of the judgment more extensively cited by the judge:
‘For the plaintiff, it has been contended, in the first place, that she should receive as additional damages, either the whole or some part of the capital cost of acquiring the bungalow, since it was acquired to meet the particular needs arising from the accident. But this argument, in my judgment, has no foundation. The plaintiff still has the capital in question in the form of the bungalow. An alternative argument advanced was, however, that as a result of the particular needs arising from her injuries, the plaintiff has been involved in greater annual expenses of accommodation than she would have incurred if the accident had not happened. In my judgment, this argument is well founded, and I do not think it makes any difference for this purpose whether the matter is considered in terms of a loss of income from the capital expended on the bungalow, or in terms of annual mortgage interest which would have been payable if capital to buy the bungalow had not been available. The plaintiff is, in my judgment, entitled to be compensated to the extent that this loss of income or notional outlay by way of mortgage interest exceeds what the cost of her accommodation would have been, but for the accident. She would also, in my judgment, have been entitled to claim the expense of a move to a new home imposed by her condition, and the expense of any new items of furniture required because of that condition, but there was no evidence before the judge under either of those headings. As to the increased cost of accommodation, if any, it was, as I have said, agreed that we should make the best estimate we could on the available material, and the matter can only be approached on a broad basis’.
The judge accepted that George v. Pinnock was an authority binding upon him, and in form applied its directions where he said:
‘It is plain that the capital cost of a new house cannot be awarded as damages, but that the additional cost of providing a new home can . . . I consider that George v. Pinnock remains good law, approved by the Court of Appeal, and binding on me.”
The judgment then continues with a consideration of the appropriate rate of interest to apply. At issue was whether or not mortgage interest should apply or whether it should be an interest rate reflecting the loss of income on capital used to purchase the house. In that case, the evidence was that the net mortgage interest would have been 7% at that time, and the annual cost in terms of lost income on investment, on the sum expended on the house, in respect of which, the evidence was that a tax-free yield of 2% in risk-free investment would be appropriate.
19. At p. 892, 893, the following was said:
“. . . it seems to us, however, that where the capital asset in which the cost is incurred consists of house property, inflation and risk element are secured by the rising value of such property, particularly in desirable, residential areas, and thus the rate of 2% would appear to be more appropriate than that of 7% or 9.1%, which represents the actual cost of a mortgage loan for such property.
We are reinforced in this view by the fact that in reality, in this case, the purchase was financed by a capital sum, paid on account on behalf of the defendants by way of interim payments, and thus, it may be appropriate to consider annual cost in terms of lost income in investment, since the sum expended on the house would not be available to produce income. A tax-free yield of 2% in risk-free investment would not be a wholly unacceptable one. Mr. McGregor, for the plaintiff, objects that if a rate of 2% is adopted, then the multiplier of sixteen would be far too low and a substantially higher multiplier should be adopted, resulting in much the same anomaly. For our part, we would reject this argument, since the object of the calculation is to avoid leaving in the hands of the plaintiff’s estate capital asset not eroded by the passage of time; damages in such cases are notionally intended to be such as will exhaust the fund contemporaneously with the termination of the plaintiff’s life expectancy. . .”
In the Roberts v. Johnson case, the purchase price of a new property was £86,500 and the proceeds of sale of the previous residence, Hill Cottage, was £18,000. It is not clear, at all in the judgment, whether the £18,000 was the full value of Hill Cottage, the previous residence, or the net value after deduction of any mortgage and costs of sale. In that case, the plaintiff conceded or invited the court to take into account the value of the property sold. Nowhere in the judgment is there a discussion of the respective interests in the new property, of the plaintiff and the Woodward’s, the carers and, ultimately, adoptive parents of the plaintiff, nor is there any consideration of the separate cost of accommodation of the plaintiff on reaching adult status.
Having decided on the appropriate rate of interest, the learned judge goes on to assess the damages as follows:
“. . . we therefore calculate that, applying a rate of 2% to the full difference of £68,500, a figure of £1,370 is calculated which, applying the multiplier of sixteen, equals £21,920. This calculation, however, does not take into account the conversion costs. The net conversion costs after allowance for that part of the cost which adds to the recoverable value of the house on resale, put at £10,000, reduces the conversion costs from £38,284 to £28,284. In our view, this sum should be added to the £21,920 (the cost of the difference between the buildings, calculated at 2%) and, accordingly, we will assess the value of the new accommodation, regarded as damages for the plaintiff, in the sum £50,204 . . .”
20. If the plaintiff is an adult, there would be little or no difficulty in applying the principle that the defendant was obliged to compensate for the additional costs of accommodation incurred as a consequence of the injuries suffered. Where the plaintiff, as in this case, is an infant now aged five years, the question arises as to how the value of the existing dwelling is to be treated in the computation of a plaintiff’s damages, where the plaintiff is not the owner of that property. In this case, the property is owned, jointly, by the plaintiff’s parents, and in the Roberts v. Johnson case, although it is not expressly stated, it seems implicit it was owned by the adopting parents. In the Roberts v. Johnson case, this issue was not considered, as it seems to have been conceded that the value of the adopting parents’ house was to be taken into account and deducted from the cost of the property to be acquired. As said earlier, it is not at all clear from the judgment in that case whether, what was taken into account, was the full value of the former property, or merely the net value after deduction of any mortgage and/or costs of sale. If the value of the plaintiff’s parents’ house is to be taken into account, a secondary issue arises as to whether it is only the net equity of the parents in that property, or whether the full value of the property is to be deducted from the agreed value of the new property. Thus, no guidance is to be had from Roberts v. Johnson on this difficult issue.
21. The Doherty v. Bowaters concerned an adult plaintiff, so the problem did not arise there, and, hence, there is no guidance from that source either.
22. As said earlier, Mr. McGrath S.C., for the first named defendant, submits that the entire value of the parents’ home should be deducted from the cost of the new property, whereas, Mr. McCullough S.C., for the plaintiff, submits there should be no deduction, but if the court were to find that there should be a deduction, it should only be the net equity of the parents’ house i.e. €217,000, leaving out of account the amount of the mortgage still outstanding on that property.
23. It should not be forgotten that it is the plaintiff, in this case, who is being compensated for the injuries which she has suffered. As a consequence of those injuries, she has particular accommodation needs, both now and for the rest of her expected lifespan. These accommodation needs give rise to additional cost of accommodation for the entire duration of her expected life. If the plaintiff did not suffer these injuries, upon reaching adult status, it is probable she would acquire her own accommodation using her own resources or, perhaps, combining her own resources with that of a husband or partner.
24. Both parties to this litigation have approached the cost of future accommodation for the plaintiff on the basis that her entire expected lifespan is treated as a continual process of dependence, essentially on parents, with appropriate contracted assistance. This is, of course, entirely understandable, having regard to the plaintiff’s disabilities and the undoubted fact that she will, in all probability, be cared for by her parents for the duration of her life expectancy. However, it ignores a distinction which is very important from the point of view of properly compensating the plaintiff in respect of accommodation needs and that is the distinction between the childhood/minority part of the plaintiff’s life expectancy and the adult portion. So far as the former is concerned, it is, of course, the case that the plaintiff, had she not suffered these catastrophic injuries, would have been supported and maintained by her parents, including having accommodation provided for her. Insofar as the adult portion of her life is concerned, it is probable, as mentioned earlier, that she would have gone on and would have provided accommodation for herself without or without the aid of a husband or partner.
25. Because of the catastrophic injuries inflicted upon the plaintiff, her capacity to provide accommodation for herself during the adult portion of her life has been destroyed, but in addition, because of her disabilities, she has unusual and additionally expensive accommodation needs. This is reflected in the fact that in order to accommodate these needs, in the same area in which she now lives, a more expensive property is required and this, in turn, will have to have alterations carried out to it, as the agreed figures demonstrate. It is easy to lose sight of the fact that it is the plaintiff who has to be compensated for the destruction of her capacity to provide accommodation and for her special needs in respect of accommodation. Thus, she has to be compensated in this respect for the entirety of her lifespan, but so far as the adult portion of her lifespan is concerned, she has to be compensated on the basis that she is entitled have this accommodation in her own right and not simply as an additional member of her family with special needs.
26. It would seem to me that it is necessary to approach compensation for the plaintiff in respect of her accommodation needs on the basis that she has to be compensated in respect of those needs for the entire duration of her lifespan, but insofar as the adult portion of that lifespan is concerned, she is entitled to receive compensation which would put her, insofar as money can do it, on a basis independent of her parents, but with accommodation appropriate to her needs as a disabled person. Therefore, she is not to be compensated on the basis of being a dependent member of her family for the entire duration of her lifespan. However insofar as her period of childhood/minority is concerned, she is entitled to benefits from her parents in respect of accommodation for which credit must be given to the defendants.
27. Thus, compensation for the additional cost of accommodation over her entire lifespan is to be approached on the basis that the plaintiff is entitled to the entirety of that for the adult portion of her lifespan, but so far as the childhood/minority part is concerned, credit must go to the defendants for the value of the benefit of accommodation provided by her parents during that period.
28. In the course of the defendants’ submissions, the prospect of the plaintiff’s parents, and, indeed, siblings, benefiting from the compensation in respect of accommodation needs of the plaintiff was alluded to. Undoubtedly, that could happen during the adult portion of the plaintiff’s life, assuming that they continued to care for the plaintiff as they had done during the minority portion of her lifespan. That may not necessarily happen for a variety of reasons, which emphasizes the necessity of compensating the plaintiff on an independent basis for her accommodation needs during the adult portion of her lifespan. Even if it did happen, and the plaintiff’s parents did derive a collateral benefit in that regard, that could not be a reason for not compensating the plaintiff on the basis of being an independent adult. Indeed, it could very well be said that having regard to the devastating effects of the plaintiff’s injuries on every aspect of the lives of her parents, that any such collateral benefit to them would in no way disturb a correct balance of justice between the plaintiff and the defendants in this case.
29. I am satisfied that the first named defendant is entitled to a credit commensurate with the value of the benefit to the plaintiff of having accommodation provided for her during her childhood or minority. The extent of that credit must be limited to or measured as best can be done to reflect the value of that benefit and no more. The extent of that benefit is that the plaintiff currently is one of a family of four who live in a house worth €550,000, provided by her parents, who, of course, have both legal and moral obligations to so provide, but she may find herself sharing this accommodation with more children before too long; indeed, that is a probability. Having regard to the nature of the occupation of a family home by any individual child and having regard to the number of adult and child occupants of this house during the plaintiff’s minority, I would be of the view that the plaintiff’s benefit in this regard could not be considered to exceed one-sixth of the value of the house. In this regard, it would appear to me to be immaterial that there is a mortgage on the house because that is an essential ingredient in the discharge by the plaintiff’s parents of their legal and moral obligation to provide accommodation for their family. What matters is that there is a house there worth €550,000, which the family as a whole and individual members of it enjoy to a certain extent. In my view, it would be wholly unjust to the plaintiff to ascribe to her the entire value of this property as if this was her exclusive benefit. Clearly, it is not, and I am quite satisfied that a just apportionment of the value of the property to reflect the plaintiff’s occupation of it during her minority is, as indicated, a one-sixth share, for which credit must be given to the defendants.
30. As indicated earlier, the plaintiff’s parents’ obligation to provide accommodation to the plaintiff would end, in all probability, with the expiration of the plaintiff’s minority or soon thereafter. This corresponds approximately to about one-half of the plaintiff’s life expectancy. Thus, in my opinion, it necessarily follows that insofar as the first named defendant seeks to have the entire value of the current family home taken into account as representing the value of, or a part of the value of the plaintiff’s future accommodation for the duration of her life expectancy, there must be an apportionment of that value to reflect the fact that, upon reaching adult status, the plaintiff would, but for her injuries, no longer have that accommodation available to her as of right, nor, indeed, as a matter of probability, would she continue to avail of it, having assumed normal adult status, and from then on availing of the normal opportunities of life, including obtaining her own accommodation. Thus, in my view, to reflect the fact that the family home would, but for her injuries, only be available to the plaintiff for approximately half of her current expected lifespan, the benefit to the plaintiff of her share in that accommodation must be reduced by a half to reflect this. Thus, I have to come to the conclusion that her benefit in this regard is equivalent to one-twelfth of the value of the house.
31. This brings me to the question of the enhancement of value of the property to be acquired by virtue of the adaptations to it.
32. Like the Law Commission in the United Kingdom, I prefer the approach adopted in the case of Willett v. North Bedfordshire Health Authority [1993] PIQR, Q 166, to the approach taken in the Roberts v. Johnson case to the treatment of the cost of alterations. In my view, this approach is much more consistent with the core reasoning applicable to the acquisition of assets with an enduring capital value, as set out in the Doherty v. Bowaters case and in Roberts v. Johnson. Using this approach, one identifies that portion of the cost of the alterations which does not produce any enhancement of value and that is treated then as a wasted or wasting asset, which, of course, is what it is. The balance of the cost of alterations which, in fact, produces an enduring capital value, is then treated in exactly the same way as the purchase cost of a new house for the purposes of calculating compensation to be paid by a tortfeasor. In order not to put in the hands of a plaintiff the full enduring capital cost, the compensation is calculated actuarially based on the assumption of a 3% return on capital multiplied by the appropriate multiplier, in this case, 20.3. The agreed alterations are €283,000 and the enhanced value resulting is €135,000. This means that of the €283,000, €148,000 is a wasted or wasting asset. The remaining €135,000 then must be considered as an enduring capital asset and treated accordingly, as discussed above. This results in the following calculation in respect of the cost of the alternations:
€283,000 – €135,000 = €148,000
– €135,000 x 3% = €4,050 x 20.3 = €82,250 + €148,000 = €230,215
33. The figures, therefore, in relation to the cost of accommodation work out as follows:
€ 875, 000
– € 45,833 (1/12th of €550,000)
€ 829,167
x 3% = € 24,875.01
x 20.3 = € 504,962.70
+ € 230,215.00
= € 735,177.70
34. Accordingly, I will award the sum of €735,177.70 as compensation in respect of the plaintiff’s future accommodation needs.
Caoimhín Griffin v Dan Hoare
2020/49 (WLIE 1)
Court of Appeal [Unapproved]
9 December 2021
unreported
[2021] IECA 329/1
Mr. Justice Woulfe
December 09, 2021
JUDGMENT
1. I have had the benefit of reading a draft of the judgment which Noonan J. proposes to deliver herein, and I am happy to gratefully adopt the comprehensive account of the facts, the evidence and the trial judge’s findings contained in his judgment. Noonan J. has come to a conclusion that the appeal brought against both the determinations of liability and quantum by the High Court should be allowed. I regret that I can only agree in part as to his conclusions on liability, and cannot agree as to his conclusions on quantum, and I would set out as briefly as possible the reasons which have led me to these different conclusions.
A. Liability
2. I agree with Noonan J. that there was no evidence that the plaintiff mitigated his speed in any way, when he and the defendant first had sight of each other, by braking or even taking his foot off the accelerator. I also agree that there should be some finding of contributory negligence against the plaintiff arising from this failure to mitigate his speed in any way.
3. However, I cannot agree with Noonan J.’s comment, at para. 28 of his judgment, that “ it is simply not credible to suggest that the explanation for this was being dazzled by lights, particularly when one’s normal reaction to being blinded or dazzled is, at the very least, to slow down ”. It is the case, as pointed out by Noonan J., that the plaintiff himself did not suggest that he was disorientated to the extent that he was unable to brake, because his own evidence was that he did in fact brake. However, the trial judge by implication rejected that part of the plaintiff’s evidence that he had braked, and it seems to me the preponderance of the evidence, together with human experience and common sense, lead inexorably to the inference that his ability to brake quickly must have been affected by the “ wall of light ” as found by the trial judge to have met him when he rounded the bend.
4. I note the evidence of the plaintiff’s engineer, Mr. Vincent Kelly, when asked, if somebody is blinded by lights what affect does that have on a person? He replied (see Day 3, p. 32) that “ The first effect it has is, I was going to say disorientated but their decision-making is taken out of sync ”. He then continued that “ if as he said, he was blinded by a wall of lights, it immediately introduced an uncertainty because you don’t know what’s happening behind the wall of lights and that obviously slows down your decision-making. It is also known to cause people to commit errors. You are not as good as you are when you are relaxed ”.
5. While the status of this evidence qua engineering evidence was queried at the time when he was giving it by counsel for the defendant, there was no formal objection taken to it and the substance of this evidence was not challenged by the defendant during cross-examination. Furthermore, during his own evidence (see Day 3, p. 74) the defendant accepted that if his full beams were on, they could disorientate an oncoming driver coming around the bend, and he also accepted that if the plaintiff was met by a truck, partially on his side of the road with all those beams on, that could create an emergency for him.
6. Whatever about the issue of the status of Mr. Kelly’s evidence qua proper engineering evidence, as discussed in more detail in the judgment of Noonan J., the above evidence in any event accords with human experience and common sense, in my opinion. In the light of same, I think that any failure on the plaintiff’s part has to be seen as mitigated or reduced by the fact that he was blinded by the oncoming wall of lights, as accepted by the trial judge, and this must on the balance of probabilities have disorientated him and slowed down his decision-making when it came to braking as quickly as he needed to. It is also relevant that everything would have happened very quickly when the plaintiff came around the bend, and I note the rough calculation done by the trial judge (albeit there was no specific evidence on this) at para. 43 of his judgment, that the two vehicles would have met one another in a time of in or about 4 seconds.
7. In the light of all of the above, I am of the opinion that the suggested contribution of one third in the judgment of Noonan J. is too high and that any finding of contributory negligence should be at the level of 20% and not one third.
B. Quantum
8. My starting point as regards quantum would be to consider the correct approach to be applied by an appellate Court in deciding whether it should interfere with an award of general damages made in the High Court for personal injuries. In Foley v. Thermocement Products Ltd Products Limited(1954) 90 ILTR 92, Lavery J. stated (at 94) that the task of a judge in an appellate Court was:
“to make his own estimate of the damages he would award and then compare this estimate with the verdict and say whether there is any reasonable proportion between the sums or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. In making his estimate the judge must adopt all points most favourable to the plaintiff and must keep in mind that the jury had the advantage, which he has not had, of hearing the evidence and of seeing the witnesses and in particular hearing and seeing the plaintiff.
No one will deny that this is a most difficult task. It is especially difficult in a case where personal injuries are the subject of the claim. There is no standard by which pain and suffering, facial disfigurement or indeed any continuing disability can be measured in terms of money. All that can be said is that the estimate must be reasonable and different minds will inevitably arrive at widely different conclusions as to what is reasonable. The task must, however, be undertaken.”
9. With the abolition of juries in personal injuries litigation, the trial judge’s award of damages was scrutinised by the Supreme Court in the same way, and on the same principles, as formerly applied to the jury award, but with one slight qualification. In Dunne v. Honeywell Controls Limited (Unreported, Supreme Court, 1st July 1993), Blayney J. stated as follows:-
“Since the findings of the High Court judge in regard to the injuries and the medical evidence are set out in detail in the judgment delivered in the case, the [Supreme] Court no longer has the task of adopting the view of the facts most favourable to the plaintiff. The decision is based on the findings of the High Court judge.”
10. The Supreme Court has repeatedly emphasised the fact that the trial judge had the opportunity of seeing and hearing the witnesses and has professed itself cautious about second guessing the trial judge’s determination of the damages issue. Thus, in Murphy v. Cork County Council (Unreported, Supreme Court, 18th November 1996), the Court upheld an award for general damages where the plaintiff suffered soft tissues injuries to her neck, leg, arm and lower back. In his judgment with which Barrington and Keane J.J. concurred, O’Flaherty J. observed as follows:-
“The impression that a plaintiff and his or her witnesses make on the trial judge is critical. In those cases where there is not something palpable such as a loss of limb or loss of the sight of an eye and so forth, when one is dealing with subjective matters, then one must rely on the trial judge and the cold pages of the transcript, not to speak of the medical reports, are often a very poor substitute for what the trial judge has before him in the way of oral testimony.”
11. The issue of degree of variation between the respective assessments of a trial judge and an appellate Court was considered in some detail by the Supreme Court in Rossiter v. Dun Laoghaire Rathdown County Council[2001] 3 I.R. 578. In that case, the plaintiff suffered severe personal injuries to his right eye. The High Court awarded IR£120,000 to the plaintiff, broken down into IR£30,000 for loss of job opportunity and IR£90,000 for general damages. The plaintiff appealed to the Supreme Court, which held unanimously that the general damages awarded by the High Court were inadequate in that they did not bear a reasonable proportion to the compensation to which the plaintiff was entitled and should be increased to IR£150,000. In his judgment for the Court Fennelly J. stated as follows (at 583):-
“As it happens, Reddy v. Bates[1983] I.R. 141 also contains a restatement of the test to be applied by this Court in deciding whether it should interfere with an award of general damages made in the High Court for personal injury. Griffin J., at p. 145, expressed himself thus:-
‘It is well settled that this Court cannot set aside the verdict of a jury on the grounds that the damages are excessive unless, adopting a view of the facts which are most favourable to the plaintiff, no reasonable proportion exists between the amount awarded and the circumstances of the case…’
He cited McGrath v. Bourne[1876] I.R. 10 C.L. 160 and Foley v. Thermocement Limited(1954) 90 ILTR 92. McCarthy J. said at p. 151:-
‘In order to warrant interference with an award of general damages the disparity between the views of the individual members of this Court and each item of the award, however large it may be expressed in isolation, must be a significant percentage of that item of the award and, as a general rule, should not be less than 25%…This Court should be reluctant so to interfere and, in particular…it should avoid relatively petty paring from, or adding to, awards.’
It might be thought that the fact that damages of the kind at issue are no longer assessed by juries will undermine the rationale underlying these dicta. However, Blayney J., speaking for a unanimous Supreme Court, in Dunne v. Honeywell Controls Limited (Unreported, Supreme Court, 1st July 1993) stated at p. 8 that ‘the approach of the Courts to an appeal against the quantum of the damages awarded remains the same as before (Courts Act, 1988) with one slight qualification.’ That is:
‘Since the findings of the High Court judge in regard to the injuries and the medical evidence are set out in detail in the judgment delivered in the case, the Court no longer have the task of adopting the view of the facts most favourable to the plaintiff. Its decision is based on the findings of the High Court judge.’
The more or less unvarying test has been, therefore, whether there is any “reasonable proportion” between the actual award of damages and what the Court, sitting on appeal, “would be inclined to give” (per Palles C.B. in McGrath v. Bourne[1876] I.R. 10 CL 160). In Foley v. Thermocement Limited(1954) 90 ILTR 92 at p. 94, Lavery J. slightly inverted the language by posing the question, “whether there is a reasonable proportion between the sum [awarded and the appeal Court’s assessment] or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable”. The test is one for application as a general principle, even if McCarthy J., in Reddy v. Bates[1983] I.R. 141 at p. 151, suggested as a possible rule of thumb, the need for at least a 25% discrepancy. That is no more than a highly pragmatic embodiment of his very proper counsel against “…relatively petty paring from or adding to awards”. In this respect, it seems to me that this Court is no longer bound by the special respect due to a jury verdict. On the other hand, it is not a Court of first instance. It should only interfere when it considers that there is an error in the award of damages which is so serious as to amount to an error of law. The test of proportionality seems to me to be an appropriate one, regardless – it needs scarcely be said – whether the complaint is one of excessive generosity or undue parsimony. It should, of course, be recalled that this test relates only to the award of general damages, as explained by McCarthy J. in a further passage from the same judgment.”
12. In M.N v. S.M.[2005] 4 I.R. 461, following an assessment in the High Court by a judge and jury, the plaintiff was awarded the sum of €600,000 against the defendant in respect of injuries inflicted by the defendant in the context of a continuum of sexual abuse over a period of five years which culminated in rape. The defendant appealed against the award of damages on the basis that it was excessive. The Supreme Court allowed the appeal and reduced the award of general damages to €350,000, holding that the sum of €600,000 was so far in excess of a reasonable award of compensation that it was disproportionate and needed to be set aside. In the course of her judgment for the Court, Denham J. stated as follows (at 473):-
“The plaintiff has brought this action seeking an award of general damages for her injuries caused as a result of the sexual abuse by the defendant. The remedy available in the courts is monetary, a sum of money, as compensation. It must be recognised, first and foremost, that no award of money will put the plaintiff back in the position she was before the sexual abuse. No award of damages will retrieve her childhood or repair the damage done to her, emotionally, in her formative years. Further, no amount of money will cure her or render her future clear of the effects of these assaults. An award of general damages is an imperfect mode of compensating a plaintiff. However, it is the only method available. It is a recognition of the injuries and damages must reflect the change of circumstances of the plaintiff.
At issue on this appeal is the award of general damages by a jury. In assessing the level of general damages, there are a number of relevant factors to consider. Thus an award of damages must be proportionate. An award of damages must be fair to the plaintiff and must also be fair to the defendant. An award should be proportionate to social conditions, bearing in mind the common good. It should also be proportionate within the legal scheme of awards made for other personal injuries. Thus the three elements, fairness to the plaintiff, fairness to the defendant and proportionality to the general scheme of damages awarded by a Court, fall to be balanced, weighed and determined.”
13. As referred to by Noonan J. in his judgment, this Court has in recent times considered the appropriate manner of assessing general damages in a number of cases. One such example is Leidig v. O’Neill[2020] IECA 296, where Noonan J. in delivering judgment for the Court summarised the matter as follows:-
“33. The proper approach to the assessment of general damages for personal injuries was most recently discussed by this Court in McKeown v. Crosby[2020] IECA 242. In brief summary, the award of damages must be proportionate in the context of the cap for general damages for the most serious injuries, set at €500,000 by the Supreme Court in Morrissey & Anor v. HSE & Ors[2020] IESC 6. It must also be proportionate in the context of awards given by the Courts for comparable injuries. It must be fair to the plaintiff and to the defendant. If the Book of Quantum is relevant to the particular injury or injuries that are in issue, the Court is obliged to have regard to it as a guide to the ultimate award.”
14. It appears to me from the above authorities that the relevant factors to be considered can be summarised as fairness to the parties and proportionality, in a number of different guises. As per Denham J. in M.N, these factors fall to be balanced, weighed and determined in making an award of damages. However, important additional factors arise in the context of an appellate Court considering an award of general damages already made by a trial judge. The appellate Court must respect the fact that the trial judge has had the advantage, which the appellate Court has not had, of hearing the evidence and seeing the witnesses, and in particular hearing and seeing the plaintiff. Another crucial test for proportionality comes into play at the appellate stage, whereby it is necessary that there is no reasonable proportion between the actual award of damages made by the trial judge and what the appellate Court would be inclined to give, with a rule of thumb being “the need for at least a 25% discrepancy”.
15. In applying the latter test, I would be happy that this test of proportionality has been met in this case, and I do not think that overall there is any serious error in the High Court award which would justify this Court interfering with same, even if I might structure the award slightly differently, and even if the award as structured by Barr J. could be seen as somewhat generous.
16. It is very significant for me that the plaintiff was only aged 21 at the date of the incident in November 2014, and the consequences of the accident and the effects on him may naturally have been greater than if the plaintiff was a middle aged or older person. He was involved in what must have been a very frightening experience, having regard to the defendant’s evidence that the force of the collision was so severe that he actually thought that the person that was driving the car was dead. The plaintiff had pain in his left knee straightaway. He was told in hospital that the knee cap was “very badly broken”, and he had surgery under general anaesthetic on the 26th November, 2014, which involved wiring being put into his knee. After this operation he was in “constant, constant, constant pure pain and none of the medication or anything was really working”.
17. After the plaintiff was discharged home from hospital the pain was still very severe, and in the weeks following, the furthest he could leave from his bed was to go to the bathroom and only when using two crutches. He had many sessions of physiotherapy to try and get his leg bending again, as it was locked in a straight position. He went back into hospital again on the 2nd February, 2015, for manipulation of the knee under general anaesthetic, with the purpose of trying to get the bend back in the knee.
18. The plaintiff had a third surgical procedure in April, 2015, to remove the wiring in his knee, presumably again under general anaesthetic. He then had a fourth procedure, an astroscopic procedure by way of keyhole surgery on the 6th May, 2015, to help achieve more of a bend in his knee and to try to relieve some of the pain. His evidence was that moving into the summer of 2015 his knee was still “desperate painful the whole time”. He was awake every night and did not sleep for months. It was only after the keyhole surgery that he began to be able to walk without too much difficulty.
19. Going into 2016, the range of motion in the plaintiff’s leg gradually improved, but he still had restriction. In his report, Mr. Kieran Barry, Consultant Orthopaedic Surgeon, refers to a further procedure, a further manipulation under anaesthetic in November, 2016, and also to the knee being injected on one occasion. Going into 2017 the plaintiff was still doing exercises to try to get his knee back stronger, but he still had pain there “the whole time”.
20. As of the time of the trial in the High Court, i.e. January, 2020, the plaintiff’s evidence was that his knee was “still very bad”. Sitting too long, or standing too long or doing anything for too long would upset the knee. If he was sitting down too much or lying down too much the knee would start stiffening up. There was not really any way he could relieve the stiffness, and he said in evidence that you have to try and accept the pain and try and walk it off.
21. As regards the importance and impact of the plaintiff’s oral testimony, as per the authorities cited earlier, I must keep in mind that the trial judge had the advantage, which this Court has not had, of hearing the evidence and of seeing the witnesses and in particular hearing and seeing the plaintiff. Having heard and seen this plaintiff the trial judge concluded, at para. 59 of the judgment as follows:-
“The Court was impressed with the plaintiff in his account of his injuries. He did not attempt to exaggerate either the level of his symptoms nor the extent of his ongoing disablement. The Court is satisfied that he has given a truthful account both of his injuries to date and as to his present condition. This young man suffered a serious injury to his left knee together with a less serious fracture to his right clavicle.”
22. In his report, Mr. Tony Higgins, Consultant Orthopaedic Surgeon, stated that the plaintiff had sustained a “very comminuted (multiple fragments)” fracture of the patella. He had a loss of 10 degrees of knee flexion compared with his right knee. While his patellar fracture had united, Mr. Higgins felt that he had already developed post-traumatic arthritis of the patellofemoral joint resulting in anterior knee pain. Further injections might be indicated, but Mr. Higgins believed that the plaintiff’s symptoms had reached a plateau and were unlikely to improve further. The report of Mr. Kieran Barry, Consultant Orthopaedic Surgeon, was substantially in agreement. He felt it was reasonable to accept that a knee injury of this nature, which had caused disruption of the articulating surface of his patella, placed the plaintiff at risk of developing post-traumatic patellofemoral arthritis in the longer term. He expected that the plaintiff would continue to complain of local symptoms for the foreseeable future.
23. There are a number of additional matters which, in my opinion, are of importance when it comes to consideration of the appropriate award of general damages in the present case. Firstly, the plaintiff also sustained a fracture of the right clavicle, which although a good deal less serious than the knee injury, was also a cause of pain or discomfort for some time. He had to wear a sling for a period of a few weeks, and the effect of using crutches on his shoulder was very severe. As of the trial date in the High Court the plaintiff could still get pain in his shoulder from time to time, as when doing activity above his head, but overall he was reasonably happy with the progress of his shoulder.
24. Secondly, at the time of the accident the plaintiff was nearing the end of his apprenticeship as an electrician. Notwithstanding the injuries sustained in the accident, he managed to complete his apprenticeship and qualify as an electrician in September, 2015. It was tough for the plaintiff to complete his apprenticeship because of difficulties in going up ladders and very severe pain when kneeling down on most surfaces and even squatting down. After qualification the plaintiff tried to do some work as an electrician with his uncle, but the work was causing too much pain in his knee, and he has had to accept that he will be unable to work as an electrician.
25. Thirdly, the plaintiff suffered a serious loss of amenity as a result of the injuries sustained. His evidence was that he was always very fit from playing Gaelic football since he was young with his club, St. Michael’s Foilmore. During the GAA season he would have a game for his club probably every week, and would be training maybe twice or three times a week. Since the accident he has been deprived of his ability to play Gaelic football, and as the trial judge correctly pointed out, this is a serious loss to a young man in a rural community. One might add that this is all the more so in a rural community in a County like County Kerry, where the local GAA club plays the central role in the sporting and social life of the community.
26. Overall in my view, the appropriate figure for general damages for pain and suffering to date in this case would be €70,000, less than the somewhat generous sum of €85,000 awarded by the trial judge, but more than the €60,000 suggested in the judgment of Noonan J. which, with respect, I do not consider adequate.
27. As regards general damages for pain and suffering into the future, the plaintiff is now only 28, and is likely to have ongoing and future symptoms for many years to come. He still has pain and stiffness in the left knee area, which limits his daily activities. Mr. Higgins believed that the plaintiff has developed arthritis of the knee joint, and that his symptoms have reached a plateau and are unlikely to improve further. He is unable to kneel on his left side, and is unable to pursue his chosen career as an electrician. Mr. Barry expects that he will continue to complain of symptoms for the foreseeable future, and feels that he is at risk of developing arthritis in the future. He will be unable to play Gaelic football again. In my opinion, the appropriate figure for general damages for pain and suffering into the future would be €40,000, less than the sum of €70,000 awarded by the trial judge, but more than the €35,000 suggested in the judgment of Noonan J., which figure I would again consider inadequate.
28. However, in addition to the above figures, I am in agreement that an award of damages for loss of opportunity is appropriate in the present case. The plaintiff spent about four years completing his apprenticeship as an electrician. However, he has been and will be unable to pursue his chosen career as an electrician as a result of the injuries sustained in the accident. The case was opened by his counsel on the basis that the plaintiff was making a general claim for loss of job opportunity, but the trial judge did not make a specific award under that heading. It may well be that the award of damages for pain and suffering into the future was intended to incorporate an amount for loss of opportunity, given that the trial judge highlighted the fact that the plaintiff has been deprived of his ability to pursue his chosen career, and stated that “the Court appreciates that it must be a source of some sadness or disappointment to him”.
29. In the Rossiter case, cited at para. 11 above, the plaintiff suffered severe personal injuries to his right eye which the trial judge held would undoubtedly interfere with his job opportunities in the future. The trial judge awarded a separate sum of IR£30,000 for possible loss of job opportunity, separate from his award of general damages. Fennelly J., delivering the judgment of the Supreme Court, held that undoubtedly the effects on future employment prospects were an element that must be taken into account in assessing the plaintiff’s damages, but in his view that element should be considered as an element of the overall general damages.
30. Having regard to the amount of IR£30,000 awarded for loss of job opportunity in the Rossiter case, I think the appropriate figure under that heading of general damages in the present case would be €30,000.
31. As regards the Book of Quantum, I have had regard to the guideline figures set out in the Book, as required by s.22 of the Civil Liability and Courts Act 2004. However, there are a number of limitations arising in terms of how much the Book can assist me in assessing damages in this case. Firstly, it does not cater for the facts of this individual case, i.e. a very young man, required to undergo four or five surgical procedures, unable to pursue his career as an electrician, and unable to play Gaelic football for his club in County Kerry. While a guideline may be a useful guide, it is only just that and it remains a valid truism in my opinion that each personal injury case depends to some extent on the facts of the individual case, and on the effect of the particular injury or injuries on the particular plaintiff, having regard to that plaintiff’s particular circumstances and character. Secondly, it does not break down the suggested figures into damages to date and future damages, as the Supreme Court has stated should be done by trial Courts, and this makes it more difficult for a judge when it comes to having regard to the suggested figures. Thirdly, it does not cater for damages for loss of job opportunity as an element of the overall general damages. Fourthly, it does not deal with a combination of injuries, beyond stating that if there are other injuries it is not appropriate to add up values to determine the amount of compensation and where additional injuries arise “there is likely to be an adjustment within the value range”. In the present case, the plaintiff also sustained a fracture of the right clavicle, in addition to the much more serious knee injury, and this additional injury has to be factored into the potential award which I would be inclined to give, and I have done so.
32. Overall, I would be inclined to assess the plaintiff’s general damages in the sum of €140,000 (70+40+30). In making that assessment, I have balanced and weighed the factors of fairness and proportionality, as set out by Denham J. in the M.N. case, as cited at para. 12 above. In the first instance, I am satisfied that such an award would be fair to the plaintiff and also to the defendant, having regard to all the relevant matters, including the pain and suffering to date, the number of surgical procedures undergone by the plaintiff, the residual symptoms which are unlikely to improve further, the loss of amenity and the loss of the plaintiff’s chosen career.
33. I am also satisfied that the above potential award would be proportionate within the legal scheme of awards made for other injuries. Firstly, I believe that such a potential award would be proportionate in the context of the current cap set at €500,000 for general damages for the most serious injuries. In my opinion one must be somewhat careful about how strictly one applies this aspect of proportionality, as in one sense it is difficult to compare any less serious injury with the most serious injuries such as a brain damage case. However, in the M.N. case itself the cap was regarded by the Supreme Court as being a figure at that time in excess of €300,000, but nonetheless the Court substituted an award of €350,000 for serious injuries sustained by the plaintiff in the context of repeated sexual abuse over a five-year period.
34. Secondly, I am satisfied that such a potential award would be proportionate in the context of awards given by the Courts for comparable injuries. Again, in my opinion, one must be careful about how strictly one applies this aspect of proportionality, as it is not possible to achieve complete equivalence, and one must look carefully at the context of exactly how comparable the injuries in the comparator case really are.
35. By way of example, the injuries in Leidig v. O’Neill, cited at para. 13 above, might at first glance appear to be comparable injuries. In Leidig the plaintiff, when aged 22, suffered a serious fracture of the scaphoid when his motorcycle collided with the defendant’s car on the 20th August, 2015. The fracture did not heal naturally with conservative treatment and ultimately he required surgery in September, 2016, comprising of an open reduction with an internal fixation using a screw and also a bone graft harvested from the plaintiff’s iliac crest. The surgery was successful in uniting the fracture but as of the trial date in June, 2019 the plaintiff had a number of residual complaints arising from his injuries which he outlined to the trial judge.
36. At the time of the accident, the plaintiff had just graduated with a degree in mechanical engineering. He had for many years been interested in motorsport and his ambition was to work in that area. However, because of the accident he was unable to pursue that career, at least to date. The plaintiff complained of ongoing pain and discomfort in his wrist, particularly in cold weather, which affected a number of his previous hobbies including fishing, hunting and playing the violin.
37. The trial judge accepted that the wrist injury fell within the “severe and permanent conditions” category of wrist injuries in the Book of Quantum, and he had regard to same. He went on to award a sum of €70,000 for pain and suffering to date, €30,000 for pain and suffering into the future, €40,000 for loss of career, and a further €15,000 for loss of his hobbies, making a total award of €155,000 for general damages. The Court of Appeal disagreed with the trial judge that the injury fell into the severe and permanent conditions category, and held that the “moderately severe” category was more appropriate. The Court substituted a total award for general damages of €90,000, made up of €50,000 for pain and suffering to date, €15,000 for pain and suffering into the future, and a further amount of €25,000 for loss of job opportunity.
38. While the wrist fracture injury in Leidig was a relatively serious injury, in my opinion the plaintiff’s injuries in the present case were considerably more serious. This plaintiff appears to have required five surgical procedures, and it appears that four of same were probably carried out under general anaesthetic. His residual symptoms appear to me to be a good deal more serious than in the Leidig case, with his doctor stating that he has already developed arthritis of the joint resulting in anterior knee pain, and that his symptoms have reached a plateau and are unlikely to improve further. In all of the circumstances, I believe that the potential award of general damages which I would be inclined to make is broadly proportionate to the award in Leidig, having regard to the differences in the severity of the injuries in the two cases.
39. Overall, therefore, I would have assessed the plaintiff’s total general damages in the sum of €140,000 (70+40+30). In the circumstances, I am of the view that there is a reasonable proportion between this sum for general damages which I would be inclined to give, and the sum of €155,000 awarded by the trial judge. Applying the rule of thumb suggested by McCarthy J. in Reddy v. Bates and endorsed more recently by the Supreme Court in the Rossiter case, there is a good deal less than a 25% discrepancy between the two figures, as a result I would not interfere with the award of general damages made by the trial judge. As a result of my finding of contributory negligence, however, it would be necessary to apply a 20% deduction to the total award of €160,968 made by the trial judge, leading to a deduction of €32,194, which would result in a net decree in favour of the plaintiff in the sum of €128,774.
Tobin v. St. James’s Hospital
[2000] IEHC 8 (27th January, 2000)
JUDGMENT of Mr. Justice Kelly delivered the 27th day of January 2000
1. The Plaintiff is sixteen years old and is an only child. She is a pupil at Newtown School in Waterford. She achieved very good marks in her Junior Certificate examination which she sat last year. Her ambition is to go into business. There is no good reason why she should not achieve this ambition given her good academic record and her pleasant personality.
2. The Plaintiff was born with a capillary malformation which is commonly called a birthmark. It involves a port wine stain on the skin on the left side of her face affecting her cheek and temple. It covers the greater part of the left side of her face. This condition has been a cause of great concern to the Plaintiff and to both of her parents. The parents have been very devoted to her and have applied themselves with great diligence in attempting to ameliorate this condition.
3. Unfortunately for the Plaintiff she has also suffered from a condition which sometimes arises as a complication of the birthmark. This involved a tumour in the left eye which, not withstanding the parents’ best efforts, was not diagnosed for a number of years. This condition has required substantial medical treatment and has resulted in an almost total loss of sight in the left eye. Neither this condition nor the treatment given for it have any relevance to the matters that I have to consider in this judgment but I mention them in order to complete the description of the Plaintiff’s medical condition.
4. The Second named Defendant (Mr. McHugh) is a consultant plastic surgeon at St. James’s Hospital. When the Plaintiff was eight months old, her mother contacted Mr. McHugh seeking advice on what treatment, if any, might be available for the port wine stain. He, quite correctly, advised that at the time there was no treatment available to deal with the complaint.
5. The Plaintiff’s mother demonstrated remarkable application in keeping abreast of developments in the world of medicine which might assist the Plaintiff. She made contact with medical personnel in Germany, England and in the United States of America in this regard. Finally, she made contact with a Dr. Tian who was based in Boston in the United States. That doctor was involved in state of the art laser treatment which was being used there to treat people with port wine conditions. That doctor alerted her to the fact that within a short time a laser, similar to the one which she used, would be available in England. Armed with this information, the Plaintiff asked Mr. McHugh for a referral to the doctor who would be operating this new laser in England. Mr. McHugh gave that referral to Dr. Neil P.J. Walker who is a Fellow of the Royal College of Physicians, with appointments at both the Lister and Wellington Hospitals in London and the Churchill Hospital in Oxford.
6. Dr. Walker examined the Plaintiff and commenced a course of laser treatments. These began in 1989, when the Plaintiff was six years old. Initially, a test treatment was carried out and this produced moderate lightening of the skin area to which it was directed. Following that, the Plaintiff underwent six or seven treatments of the entire area of the stain. All of these treatments were carried out under general anaesthesia. These treatments appeared to be reasonably successful.
7. It is common case that it is never possible to remove a port wine stain of the type in suit. However, successful laser treatment can bring about a significant lightening of the skin colour, thereby enabling a very effective masking to be achieved by the use of makeup. Dr. Walker said, and I accept, that with successful lightening and appropriate makeup, the port wine stain could then have been rendered virtually unnoticeable.
8. Whilst in London for treatment the Plaintiff and her mother met Mr. McHugh, who happened to be at Dr. Walker’s rooms. This was a coincidental meeting but it resulted in the Plaintiff and her mother becoming aware of the fact that a laser of the type being used by Dr. Walker was available in Ireland and was being utilised by Mr. McHugh. They, therefore, decided to continue with the treatments in Dublin. This was a sensible decision since these treatments were expensive and only a limited form of financial support was obtained by the Plaintiff from the Voluntary Health Insurance Board and from her local Health Board. Indeed, most of that financial assistance was devoted towards the treatment of her eye rather than her skin condition. Financial strain had been placed upon the Plaintiff’s parents as a result of the treatments in London, so it made sense to have them carried out in Dublin.
9. A series of treatments were carried out by Mr. McHugh, similar to those carried out by Dr. Walker. The only difference between the two was that, whilst Dr. Walker tended to treat the entire area, Mr. McHugh would treat a smaller area at a time.
10. By 1994, a new laser became available in Dublin. It was known as a Hexascan laser. Mr. McHugh decided to use that on the Plaintiff since the results obtained under the previous treatments given by him, were not proving successful in effecting a lightening of the colour of the blemished skin.
11. On the 17th of June 1994, which was a Friday, the Plaintiff was treated by Mr. McHugh with the Hexascan laser. Like the other treatments, this was administered under general anaesthetic. When the Plaintiff awoke following the treatment, she was very upset. Normally, her face would have a burning sensation for about an hour after laser treatment. On this occasion, the Plaintiff’s face did not cool down; she felt ill, could not eat and was very tearful. This was quite unlike her reactions to earlier treatments. Her parents took her home to Waterford where she continued to complain of her face being very hot and they used an ice pack to try and cool her.
12. On the following day, when she woke up, her face was bleeding and her pillow was bloodstained. There were blisters and blood on her face and some of the blisters had broken. Her parents made contact with St. James’s Hospital but were unable to speak to Mr. McHugh. They did, however, speak to his Registrar and he indicated that if they wished to come back to the hospital, they could do so. However, the Plaintiff was too ill at that stage to travel the hundred miles or so to Dublin. He recommended that they apply a particular cream to her face, but they were unable to procure that cream in any pharmacy in Waterford.
13. Faced with this difficulty the Plaintiff’s parents took her to the Accident and Emergency Department of Waterford Regional Hospital. That hospital did not have the recommended cream either. The casualty officer made contact with St. James’s Hospital and spoke to Mr. McHugh’s Registrar. On foot of that conversation a spray was used to try and ease the condition of the Plaintiff’s face and the Plaintiff was told to return on the following Tuesday to see the Casualty Consultant. This she did. On that occasion he took a photograph of the Plaintiff’s face which was put in evidence before me. The photograph speaks for itself. It demonstrates a substantial number of burnt areas, each hexagonal in shape, over a large part of the left cheek. There was really nothing more that could be done at that stage but the Plaintiff’s parents made contact with Mr. McHugh who saw her in September of that year. They explained their anxiety to him. He indicated that the face would take a while to heal and that he would see her again in December. By December, the face had not healed very much and he indicated that it might take eighteen months for substantial improvement to be demonstrated. On this occasion he said that in using the laser, he had used the strongest strength.
14. The Plaintiff’s parents were not happy with this situation and so they sought a second opinion from another plastic surgeon, a Mr. Lawlor. He took a similar view to that of Mr. McHugh. He thought it prudent to wait for eighteen months to allow for an improvement to take place. He indicated that he would not be prepared to treat the Plaintiff and could see no reason why Mr. McHugh would not continue to do so. The Plaintiff’s parents were, at this stage, unhappy at the prospect of simply doing nothing for eighteen months. Neither were they content to continue to have the Plaintiff treated by Mr. McHugh. Whilst the Plaintiff’s mother, in evidence, accepted that Mr. McHugh had done his best for her daughter, it is understandable that, in the circumstances, she would no longer wish the Plaintiff to be treated by him.
15. In February 1995, she contacted Dr. Walker, who saw the Plaintiff on the 20th April of that year.
16. Dr. Walker gave evidence before me. He told me of the treatments which he had given to the Plaintiff, prior to her being treated by Mr. McHugh. During his initial treatments, a significant lightening had been brought about in the port wine stain. This was a good result and, moreover, the texture of the skin had not been altered as a result of the treatment.
17. Dr. Walker recognised that burning of the skin is a recognised risk of laser treatment. Such burning had not occurred while he treated the Plaintiff and so the texture of her skin was unchanged. Whilst there would be discomfort for a few days following the treatments, the surface of the skin was never broken and there was no scarring. Consequently, the texture of the skin had not been altered when she left him to take up treatment with Mr. McHugh.
18. When he examined her in April 1995, he formed the view that the outcome of the treatment which she had received the preceding June was such as to give rise to a deep dermal burn with consequent significant textural change and scarring. He took the view that this must have given rise to pain and discomfort over and above the norm which would follow laser treatment. He decided to wait before giving any treatment because surface changes can often improve. The principal changes observed by him on this examination were that the areas affected by the burning were darker in colour than they had been. There was also an abnormal textural change to those areas which was very visible. Another reason for delaying further treatment was the constant improvement in laser technology. In time he hoped to be able to give further treatment which would lighten the darkened areas and also bring about an improvement to the damaged skin.
19. In due course, he commenced the Plaintiff on appropriate treatments. The present position is that the Plaintiff has had two treatments carried out which have as their object the lightening of the colour of the skin overall. She will need between two and four more such treatments. Some of these treatments would have been necessary in any event. He estimates that she requires two additional treatments in order to try and deal with the darkening in colour which was brought about as a result of the incident of June 1994. Each of these treatments costs £700.00 Sterling. If he is to do them, they will require attendance at his hospital in London. Fortunately, it is now possible to carry out these treatments without the necessity for a general anaesthetic; instead an anaesthetic gel is used. The object of the treatment is to make the affected part of the face as pale as possible whilst at the same time avoiding textural changes to the skin.
20. The treatments which I have just described will not address the textural changes which were brought about in the skin affected by the Hexascan laser burns. Dr. Walker is of the view that that situation may be assisted by carrying out treatment using a different type of laser. He plans to carry out one or two assessments on very limited parts of the skin to see how they react to such treatment. If a satisfactory result is achieved, then he proposes to carry out a major treatment over the entire surface. The assessments will require the administration of local anaesthesia, but the treatment will require a general anaesthetic. The Plaintiff will suffer surface burns as a result of this treatment and they will take up to ten days to heal. During those ten days, she will require to have her face dressed in hospital twice a day for about seven days. She will be an in-patient in hospital for up to two nights. This treatment will cost approximately £10,000.00 Sterling. Even with this treatment, he cannot say that her skin texture will return to its pre-June 1994 condition. There will remain, he believes, some abnormal surface on the skin.
21. He demonstrated, by reference to the Plaintiff’s face, the areas which he proposes to treat. The hope is that he will achieve an overall lightening and a sufficient improvement in the texture to enable make-up to be used to considerable effect. However, given the changes in texture to the skin, the make-up will never be as effective as it might have been had the burning not taken place. Before the burning in June 1994, the skin texture was normal and would enable the face to look normal with the effective use of make-up. Now he says that that is not possible.
22. The case proceeded before me as an assessment since liability was conceded by the Defendant. I therefore turn to a consideration of the special damages.
LASER TREATMENT TO DEAL WITH TEXTURAL CHANGES
23. I am of the opinion that the Plaintiff is entitled to recover the cost which will be involved in the carrying out of this treatment in its entirety. Whilst the full treatment will not be proceeded with unless the two pre-treatment assessments are successful, it seems to me that, as a matter of probability, the full treatment will take place. The Plaintiff has never had an adverse reaction to laser treatment carried out by Dr. Walker; such only occurred in June 1994 in circumstances where it does not appear that any pre-treatment assessment was carried out before the use of the Hexascan laser. It does not appear to me to be unreasonable for the Plaintiff to want to have this treatment carried out in London under Dr. Walker. There is no suggestion that such a treatment could be carried out in this jurisdiction. Even if it could, I am of the view that the Plaintiff is entitled to repose confidence in Dr. Walker and to have her treatments carried out by him.
24. I find that two assessments will probably be necessary, each of which will involve her going to London with an overnight stay in that city. It is not unreasonable that she should be accompanied by one parent on each such occasion. I accept that the Plaintiff is somewhat vulnerable, is not familiar with London, and on all occasions to date, has been accompanied by her two parents whilst having treatments or assessments carried out. I do not think it reasonable to visit the Defendant with a liability for the cost of a second parent going to London for these assessments. I was not furnished with a figure as to the costs of these assessments and it may be that their cost is encompassed in the overall figure of £10,000.00 Sterling which was specified by Dr. Walker as being the cost of the entire treatment. Insofar as the assessments are concerned, I will allow the sum of IR£300.00 in respect of air tickets for each of the two treatments together with the sum of IR£250.00 per trip in respect of bed and breakfast. I will also allow a further IR£100.00 for each trip to cover miscellaneous expenses such as taxi-fares and meals. This totals IR£1,300.00.
25. I will allow a sum of IR£12,500.00 to cover the costs of the full treatment. This is a treatment which will have to be carried out under general anaesthesia, will involve two days hospitalisation and regular attendance for the purpose of dressings twice a day thereafter. I do not regard the Defendant’s suggestion that the post treatment dressing should be carried out in Dublin as reasonable. Whilst it may be possible to have such wounds dressed in Dublin, it seems to me unsatisfactory to require the Plaintiff to return to Dublin to have this done. In the event of something going wrong she would have to return to London to have it dealt with. It is reasonable that the Plaintiff should remain in London and attend at the hospital where her consultant practices and where he will be readily on hand in the event of complications.
26. The Plaintiff maintains that she is entitled to be accompanied by both her parents in respect of this period of hospitalisation and the days subsequent thereto. I accept the Tobins are a very united family. To date, both father and mother have accompanied the Plaintiff to any treatments which have been carried out. Given that history and the fact that this is a major treatment requiring a general anaesthetic, it does not appear to me to be unreasonable that both parents should be present during the period of the Plaintiff’s actual hospitalisation in London. Thereafter, however, I take the view that it would be unreasonable to expect the Defendants to fund the presence of both parents in London for a period of about twelve days. As the Plaintiff will be under medical care, will have had a difficult procedure carried out and is unfamiliar with London, it is reasonable that she should be accompanied during that period by one parent. I will, therefore, allow the cost of travel and subsistence in London for two days to both parents and for a further ten days to one parent. During this period of ten days, the Plaintiff herself will require accommodation, since she will only be an in-patient for two days.
27. On the basis of the evidence that I have, I will, therefore, allow a sum of IR£450.00 to cover the cost of plane tickets to and from London and I will allow a sum of
28. IR£250.00 in respect of bed and breakfast for one parent for two days, the second parent for twelve days (IR£1,500.00), and the Plaintiff for ten days (IR£1,250.00). In addition there will be miscellaneous expenses of IR£750.00 which I will also allow. This totals IR£16,700.00.
LIGHTENING TREATMENT
29. I accept the evidence of Dr. Walker that two additional lightening treatments have been necessitated as a result of the burning which took place in St. James’s Hospital. I will allow a sum of IR£900.00 in respect of the costs of each of these treatments. They will also necessitate the Plaintiff’s travelling to London. They do not require to be carried out under general anaesthesia and it does not seem to me reasonable that she should be accompanied by both parents for these treatments. It is, however, reasonable that she should be accompanied by one parent and I will, therefore, allow a sum of IR£300.00 in respect of air tickets, IR£250.00 in respect of bed and breakfast and IR£100.00 in respect of miscellaneous expenses in respect of each of these trips. This totals IR£3,100.00.
GENERAL DAMAGES
Pain and Suffering to date
30. There is no doubt but that the Plaintiff suffered considerable pain and discomfort as a result of the burning which took place. From her demeanour in the witness box, it was clear that she was greatly affected by this reversal in her treatment. She has been caused a good deal of distress and upset by it and is very conscious of the darkening effect of the burns and the changes in skin texture brought about by it. She will, as a result, have to have the treatments which I have already described. As they lie in the future, I propose to deal with the general damages aspects of those treatments under the heading of pain and suffering into the future. The Plaintiff has had to bear, to date, not merely the discomfort associated with these injuries, but also, the embarrassment and disappointment of an already unhappy condition being made worse. It seems to me that in these circumstances, the appropriate figure to award for pain and suffering to date is £20,000.00.
PAIN AND SUFFERING INTO THE FUTURE
31. As a direct result of the burns sustained by her, the Plaintiff is going to have to undergo one major treatment which requires to be carried out under general anaesthesia. It will give rise to considerable burning and discomfort and wounds to her face which will have to be dressed twice daily for a period of about ten days. She will also have to sustain the two pre-treatment assessments. In addition, she will have to have two ordinary laser treatments which she would not have required had the burns not taken place. Whilst these do not require general anaesthesia, they, nonetheless, give rise to considerable discomfort, albeit for a shorter period of time. Even at the end of all of this, and assuming as much success as is possible, the evidence of Dr. Walker is that the Plaintiff can never be fully returned to the position which obtained prior to June 1994. This is because of the textural changes which have been brought about in the skin. There was a reasonable prospect, prior to June 1994, of the birthmark being lightened to such an extent that it would be practically incapable of being noticed with the effective use of make-up. That will not now be possible because the textural changes can never be completely ameliorated. In assessing a sum for future pain and suffering, I have to bear in mind that this treatment may not be as successful as is hoped. In these circumstances, it appears to me, that the appropriate figure for future pain and suffering should be £60,000.00.
CONCLUSION
32. There will, accordingly, be a decree for a total sum of £80,000.00 general damages and £19,800.00 special damages, giving a total of £99,800.00.