Tort Mitigation
Cases
Histon v Shannon Foynes Port Company
[2006] I.E.H.C. 292Judgment of Ms. Justice Finlay Geoghegan delivered the 15th day of June, 2006.
Background to motion
The plaintiff is the former harbour master of the Foynes Port Company. The Harbours (Amendment) Act, 2000 amalgamated the former harbours of Foynes Port Company and Shannon Estuary Port Company. The defendant is the harbour authority for the new amalgamated harbours. One office of harbour master of the amalgamated harbours was created. This was advertised and the former harbour master of the Shannon Estuary Port Company was the successful applicant. Pursuant to the provisions of the Harbours (Amendment) Act, 2000, the plaintiff transferred into the employment of the defendant. His subsequent position within the defendant was then governed by s. 43(4)(c) of the Harbours Act, 1996, as inserted by s. 1 of the Harbours (Amendment) Act, 2000, which provides:
“Where the chief executive or the harbour master of a transferor company transfers into the employment of the transferee company, then nothing in paragraph (a) or in the provisions applied by that section shall be construed as requiring their appointment as chief executive or harbour master, respectively, of the transferee company but this paragraph shall not otherwise be construed as affecting the scales of pay, conditions of service and terms of office of the persons concerned.”
A dispute then ensued between the plaintiff and the chief executive of the defendant which culminated in the defendant purporting to dismiss the plaintiff on the 21st September, 2001.
The plaintiff commenced plenary proceedings (2001 No. 14243P) on the 24th September, 2001, against the defendant essentially challenging the validity of that purported dismissal and seeking declarations, injunctions and other consequential relief.
In the High Court, by order of the 20th November, 2003, Smyth J. dismissed all of the plaintiff’s claims save a claim in relation to arrears of salary up to the 21st September, 2001, and a claim in relation to pension entitlements. Judgment by Smyth J. was delivered on Tuesday, the 15th July, 2003, and a transcript of same is available.
The plaintiff appealed so much of the judgment and order of the High Court as dismissed the plaintiff’s claims. The defendant cross-appealed from that part of the judgment and order which granted reliefs to the plaintiff. It is not clear to me whether the defendant’s appeal proceeded and nothing turns on that for the purposes of this motion or judgment.
On the plaintiff’s appeal the Supreme Court, on the 13th January, 2005, made the following order:
“IT WAS ORDERED AND ADJUDGED that the said Appeal be allowed and that so much of the said Judgment and Order of the High Court as dismissed part of the Plaintiff’s case be set aside and in lieu thereof the Court DOTH DECLARE that the Plaintiff has not been validly removed from office in the employment of the Defendant.”
A single judgment was delivered by Geoghegan J. (with whom Fennelly and Kearns JJ. agreed). In that judgment Geoghegan J., having referred to the particular reliefs sought by the plaintiff, stated at p. 6:
“However, having regard to the way the case was argued both in the High Court and in this Court, I have come to the conclusion that the real issue is whether the appellant is still in office in the Company or not. It is that issue which I intend to address.”
One of the arguments put forward on behalf of the plaintiff was that, pursuant to the relevant statutory provisions, he could not be removed from office without the consent of the Minister for the Marine and that no such consent was sought or obtained. On that issue Geoghegan J. concluded at p. 14:
“Having regard to the view which I have taken on the interpretation of section 39 of the 1996 Act, it necessarily follows that notwithstanding that the appellant ceased to be a harbour master he continued to have officer status and continued to be in a position from which he could not be dismissed without the sanction of the Minister for the Marine. It seems clear, therefore, that he has never been validly removed and is still in office.”
At the conclusion of the judgment at p. 21 he further stated:
“I would allow the appeal in the sense that I would set aside the order of the High Court and substitute for it a declaration that the appellant has not been validly removed from office in the employment of the respondent. I would not grant any other relief.”
The matter was listed again before the Supreme Court on the 13th January, 2005. Primarily it would appear to deal with the issue of costs. Whilst there is some dispute between the parties as to precisely what took place on that day, it appears common case that counsel for the plaintiff tried to raise, in addition to costs, the entitlement of the plaintiff to pay after the date of purported termination of employment. However, following submissions on behalf of the defendant, the Court indicated that they were not expressing any view on the plaintiff’s entitlement to such pay and that this could be pursued in new proceedings.
The present proceedings are summary proceedings commenced by the plaintiff on the 15th February, 2005. In the special endorsement of claim it is pleaded:
1. At all material times the Plaintiff is and was an officer in the employment of the Defendant.
2. Arrears of salary are due and owing to the Plaintiff by the Defendant in the sum of in or about €376,458-57 in respect of the period 22nd September, 2001, to 16th December, 2004, inclusive, full particulars of which have been furnished to the Defendant.
3. The Plaintiff has requested payment of the said sum but the Defendant has failed, refused and neglected to pay the same.
And the plaintiff’s claim is for:
Judgment in the sum of €376,458.57 being a debt due and owing to the Plaintiff by the Defendant;
Interest pursuant to the Courts Act, 1981;
And the cost of the proceedings;
I was informed by counsel in the course of the hearing that the reason the plaintiff’s claim is limited to the period up to the 16th December, 2005, is that in respect of the period subsequent to the Supreme Court judgment the defendant has recommenced paying to the plaintiff his salary.
The affidavit of the plaintiff seeking liberty to enter final judgment is short and simply states that he is and was at all material times an officer in the employment with the defendant and that there are arrears of salary due in respect of the amount and dates already set out above.
A replying affidavit to the application for liberty to enter judgment was sworn on behalf of the defendant by its Chief Executive, Mr. Byrne. Having set out a history he stated at para. 6:
“I say and believe and am advised by Counsel that the position in this case is as follows:-
(a) While the Plaintiff succeeded in setting aside the Order and Judgment of the High court, as I have recorded aforesaid, the Supreme Court made no pronouncement one way or the other in relation to any alleged entitlement on the Plaintiff’s part to arrears of salary from the date of his dismissal although this is the basis for the Plaintiff’s present claim before this Honourable Court. Moreover, when the Plaintiff’s Counsel sought directions as to the Plaintiff’s entitlement to arrears of salary when the matter came before the Supreme Court for mention on the 13th of January 2005, the Supreme Court made it clear that this was not a matter for adjudication by them. I beg to refer to the Defendants Solicitors note of the exchanges on this occasion upon which pinned together and marked with the letter “B”, I have endorsed my name prior to the swearing hereof. I say further and am advised by Counsel that the (sic) predicated on the judgment of Mr. Justice Smyth and in particular his express finding that the Plaintiff was 75% responsible for his dismissal.
(b) Furthermore, it is my belief that the Judgment of the Supreme Court does not assist the Plaintiff in any respect in relation to his alleged claim for arrears of salary having regard to his conduct as chronicled in the Judgment of Mr. Justice Smyth. However even if I am incorrect in his assertion, I believe that this matter should be sent forward for Plenary hearing so that the Plaintiff’s alleged entitlements, if any, can be definitely ascertained. I would repeat that the Supreme Court’s attitude towards the Plaintiff’s alleged claim for arrears of salary is exemplified by the exchanges which took place on the 13th of January 2005 while I am advised by Counsel that the refusal of the Court to accede to the application made by Counsel for the Plaintiff for the discharge of arrears of remuneration by the Defendant is the strongest possible indicator of the views of that Court to the Plaintiff’s alleged entitlements.
(c) I say and believe and am so advised that the Defendant has a full bona fide defence to the Plaintiff’s alleged claim herein.”
The application for liberty to enter a final judgment came on before MacMenamin J. in the High Court on the 17th February, 2006. It appears that on such application counsel characterised the defence sought to be made as one of contributory negligence. An issue then arose as to whether, as a matter of law, contributory negligence was capable of being a defence to the plaintiff’s claim in the summary proceedings. MacMenamin J. directed the trial of that question as a preliminary issue. A notice of motion was then issued seeking the determination of more than one issue. When the matter commenced before me it was agreed that the issue which was to be determined as a preliminary issue pursuant to the order of MacMenamin J. was:
“As a matter of law, is contributory negligence capable of being a defence to the plaintiff’s claim?”
At the commencement of submissions it appeared that there was some dispute as to what was the nature of the contributory negligence being alleged by or on behalf of the defendant. Accordingly, I directed that the defendant should set out the particulars of contributory negligence which they submitted were, as a matter of law, capable of being a defence to the plaintiff’s claim in the summary proceedings. The defendant delivered particulars on the next morning, the 26th April, 2006, which commences with the following:
“The plaintiff’s several acts and omissions as particularised hereunder contributed to the Defendant’s breach of statute. This breach of statute was impugned in the judgment of the Supreme Court. Since the Plaintiff’s loss of salary derived from the termination of his appointment, his alleged entitlement to arrears of salary is inextricably bound up with his removal from office. In the premises, the Defendant relies on the several matters set out hereunder as evidencing the Plaintiff’s contributory negligence which said matters are recorded inter alia – ”
The defendant then cited certain correspondence, the contents of the judgment of Smyth J., the judgment of the Supreme Court and the pleadings in the earlier proceedings and then listed specific matters in sixteen paragraphs. Counsel accepted that the more general matters referred to were not appropriate and that the defendant should be confined to relying upon the matters referred to in paras. 1 to 16. It was then agreed that the issue which was to be determined on the hearing of the preliminary issue should be:
“As a matter of law, is contributory negligence as alleged in paragraphs 1 to 16 of the defendant’s particulars dated 26th April, 2006 capable of being a defence to the plaintiff’s claim.”
Paragraphs 1 to 15 inclusive of the particulars set out allegedly negligent behaviour (some of which is stated to be so found by Smyth J. in his judgment) in the period prior to the plaintiff’s purported dismissal on the 21st September, 2001. Paragraph 16 is an allegation of a failure to mitigate after the “date of his removal from office to the conclusion of his proceedings in the Supreme Court”.
The defendant in its submissions before me sought to continue to rely on certain findings in the judgment of Smyth J. and in particular a finding at p. 20 of the judgment in the following terms:
“The Plaintiff’s conduct amounted to a repudiatory breach of a kind that amounted to such total non-performance that the Defendant was entitled to terminate it. Even if I am wrong in the views hereinbefore expressed and the issue were one of negligence, I do not conceive of any circumstance on the evidence before me that the Plaintiff could not be held to be ever less than 50% guilty of contributory negligence and, in my judgment, could not even be said to liable (sic) for any less than 75% of contributory negligence for the fate that befell him.”
Insofar as the above are findings, they form part of the justification for the dismissal of the plaintiff’s claim by Smyth J. and, as such, have been set aside pursuant to the order of the Supreme Court of the 13th January, 2005. However, having regard to my conclusions as set out below nothing would appear to turn on this.
Defence of contributory negligence
Contributory negligence is governed by s. 34(1) of the Civil Liability Act, 1961. This provides:
“34. —(1) Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees fault of the plaintiff and defendant: provided that—
…”
The essence of the plaintiff’s submission is that s. 34(1) does not apply to the plaintiff’s claim in these proceedings. The plaintiff’s claim is a claim for salary due and owing to him in respect of a period for which he was an officer of the defendant (as so declared by the Supreme Court) and for which he has not received his salary which he asserts is an incidence or benefit of the office. It is submitted that the plaintiff is not making any claim in these proceedings in respect of damage suffered by him in respect of a wrong alleged to have been committed by the defendant.
Counsel were unable to find any existing authority precisely on point. The submission made on behalf of the plaintiff that s. 34(1) is confined to claims made in respect of damage allegedly suffered by a plaintiff by reason of alleged wrongs (i.e. a tort, breach of contract or breach of trust in accordance with s. 2 of the Act of 1961) is correct. It is of the essence of s. 34(1) that the damage allegedly suffered by the plaintiff is caused partly by the negligence or want of care of the plaintiff and partly by the wrong of the defendant. This presupposes that the claim must be on in respect of damage allegedly suffered by the plaintiff by reason of an alleged wrong (as defined) of the defendant.
The present claim of the plaintiff is brought on a summary summons and is a claim for a debt allegedly due by the defendant to the plaintiff. The plaintiff is not making any claim for damages in respect of loss or damage suffered by him by reason of an alleged wrong (i.e. tort, breach of contract or breach of trust) of the defendant. In so proceeding, the plaintiff may have limited his claim but it appears to me to follow that in making such claim against the defendant he has excluded the application of s. 34 of the Act of 1961 to the claim made.
Counsel for the defendant sought to rely on a number of authorities and in particular referred the Court to the decision of Gavin Duffy J. in Cox v. Electricity Supply Board (No. 3) [1944] I.R. 81, McCord v. Electricity Supply Board [1980] I.L.R.M. 153 and Myles v. Wakefield Metropolitan District Council [1987] AC 539. It does not appear to me that any of these judgments assist the respondent in relation to the only issue which has to be determined on this preliminary issue.
I was also referred by counsel for both parties to the decision of the Supreme Court in Carr v. City of Limerick V.E.C. [2000] E.L.R.57 and in particular to an extract from the judgment of the former Chief Justice, Finlay C.J., at p. 77. Again, it does not appear to me to assist on the single issue before me.
Counsel for the defendant laid particular emphasis on the decision in McCord v. E.S.B. As appears from p. 155 in the judgment of O’Higgins C.J., the claim of the plaintiff in those proceedings was a claim for damages for breach of contract and hence the reference to contributory negligence of the plaintiff is unsurprising having regard to the terms of s. 34(1) of the Act of 1961.
Accordingly, I would answer the agreed question to be determined as a preliminary issue as follows:
Contributory negligence, as alleged in paras. 1 to 16 of the defendant’s particulars dated the 26th April, 2006, is not, as a matter of law capable of being a defence to the plaintiff’s claim herein.
I wish to add an observation in relation to the particulars of failure to mitigate in not seeking alternative employment at para. 16 of the particulars delivered by the defendant. Section 34(2)(b) of the Act of 1961 provides:
“A negligent or careless failure to mitigate damage shall be deemed to be contributory negligence in respect of the amount by which such damage exceeds the damage which would otherwise have occurred.”
It is presumably by reason of this sub-section that the defendant included as a particular of contributory negligence the failure to mitigate by not seeking alternative employment. This decision only pertains to the absence of a defence of contributory negligence under s. 34 of the Act of 1961. On this motion, I am not determining either the entitlement of the defendant at this stage in the proceedings to seek to raise any other objection to the plaintiff’s application for liberty to enter a final judgment or its entitlement to raise any other defence to the plaintiff’s claim for the debt alleged to be due to him.
Mulholland v Murtagh [2008] I.E.H.C. 165udgment of Mr. Justice Bryan McMahon dated the7th day of May 2008.
The plaintiffs are a married couple who reside and own property in Ravensdale, Dundalk, Co. Louth. The defendant is the resident and owner of property immediately adjacent to the plaintiffs. In or about February, 2000, oil leaked from the defendant’s central heating tank and spread onto the plaintiffs’ property where it contaminated the plaintiffs’ domestic well. The defendant admits liability and the case before the Court is for the assessment of damages only. The plaintiffs claim damages under two headings:-
(a) General
(b) Special
I will consider the special damages first.
It is not contested by the defendant that some special damages are due to the plaintiffs for the damage suffered. The plaintiffs gave uncontroverted evidence that they first became aware of the effects of the spill when their daughter complained of an oily smell and unusual colour in the water in the bath in or about the 14th February, 2000. Not too much attention was paid to the daughter’s complaint, however, since she was using some new bubble foam for the first time on that occasion. Shortly thereafter, however, another daughter, Nicola, complained of an unusual taste and some days later had to be removed from school with stomach problems which necessitated hospitalisation for some days. Nicola’s complaint was the subject of separate legal proceedings which were settled out of court and because she was an infant at the time these were ruled by the Court. The plaintiffs also began to notice at this time, a strong kerosene odour when the central heating was operating. When Mr. Mulholland learned that his next door neighbour had an oil spill from his central heating tank, he set about assessing and addressing the problem in his home. It very soon became clear that the supply well on his property had been contaminated by the spill. He then consulted various people as to what he should do. He concluded that the existing well would have to be abandoned and a new well would have to be opened nearer to his house. The defendant concedes that this was necessary. Since they owned some five acres around the house, locating another well on his property was not a problem. After further consultation and advice, the plaintiffs decided that the entire water supply to the house, including the central heating system, had to be taken out and replaced with new pipes throughout the house. Needless to say, this was an expensive operation costing in the region of €56,000 in all, and it now forms a major part of the plaintiffs’ claim.
The defendant resists this part of the claim saying that a less drastic solution was available, namely, to drain the entire water system in the house and flush it out, several times if necessary, with an appropriate degreasing detergent. The defendant claimed that this would have eliminated the odour problems and rendered the water safe for consumption. Such a procedure would be a fully effective solution and should have been the method adopted by the plaintiffs in addressing the problem. The cost of this alternative was calculated by the defendant as costing somewhere in the region of €22,000.
Before I address this issue, I will first outline the evidence of the plaintiffs as to the effect which the spill had on their domestic life after it occurred, as well as their immediate response to what they perceived was a very disturbing situation.
Margaret Mulholland, the second named plaintiff, gave evidence that they had the bungalow built in 1990 and were 10 years living in it when the events the subject of these proceedings took place. The couple had three daughters, they had their own well on the property and in January, 2000 the quality of the water was tested. The result indicated that the water quality was impeccable and no filter was required.
The plaintiffs first became aware of the problems with the water on Monday the 14th February, 2000, when the eldest daughter, then 16 years of age, claimed that there was a strange taste from the water. The plaintiffs did not pay much attention since they had recently tested the quality of the water. The next evening another daughter, took a bath and detected a smell. The following day Nicola was sent home from school complaining of headache and pains in her stomach. The doctor prescribed medication. It was then that Mrs. Mulholland became seriously concerned. On Friday of that week “unreal fumes” were detected when a bath was drawn once more. The cold water was checked and a greasy film could be detected on the surface. The family then stopped using the water.
As a new pump had been installed the previous month, Mr. Mulholland contacted the installer but was reassured that the oil could not have come from the pump. On the 21st February, Mr. Mulholland learned from his next door neighbour, Mr. Murtagh, that there had been a leak from his central heating tank and that his insurers were looking after the problem.
For the next couple of weeks the plaintiffs had to bring in all of their drinking and washing water in containers from outside. Cooking and washing became very difficult and the family had to go to relatives in the area whenever they required a shower or a bath.
There followed a period when the plaintiffs sought advice. They consulted an architect, a plumber and a consultant who was a specialist in the area of water contamination. Mrs. Mulholland wanted to be sure that in selecting a solution she could be fully secure that the matter was fully resolved and that any threat to the health and safety of the family was totally eliminated. There was a suggestion that the system should be flushed out, but Mrs. Mulholland did not think that this was sufficient and did not want to take any risks. The plaintiffs decided that the only way they could get peace of mind would be to replace all of the water piping in the house and the central heating piping as well. Mrs. Mulholland stated that she did not want to do this but felt that she was compelled to do so in the circumstances. The plaintiffs had replaced the radiators in the house in the previous year and were reluctant to undertake more disruption in the house. The only reason she opted for this drastic remedy was to ensure peace of mind.
The replacement work commenced and inevitably it involved a great deal of disruption. The concrete floors had to be dug up and the kitchen units had to be removed and stored. During this period the family sought alternative accommodation. Mrs. Mulholland went to great lengths to secure reasonable and convenient short term lettings but since short term leases were difficult to get they booked into the Ballymascanlon Hotel and remained there from the 29th February, 2000 to the 2nd April, 2000. The family shared two interconnecting bedrooms. Living in the hotel for this period was not easy as the children had to do their homework and participate in normal social activities at the same time. During this period Mrs. Mulholland continued to search for more suitable accommodation and eventually secured a part of a house where they stayed until the 16th June, 2000, when they returned home.
When it was put to her in cross-examination that the “flushing method” would have been sufficient to solve the problem, Mrs. Mulholland said that she wanted to be sure and said that when she enquired at that time, what would happen if the testing subsequent to the first flushing out exercise still indicated some oil residue, she was told that the exercise could be repeated several times. She said she had a child who had become sick and that the safest and quickest way to get a permanent solution to her satisfaction was for them to replace the whole system. She admitted that the decision was their own decision at the end of the day. The witness then gave evidence as to the various items of special damage which had been incurred as a result of the contamination and as a result of the disruption caused during the replacement operation. I propose to deal with these later in this judgment.
Mr. Fintan Mulholland, the first named plaintiff, corroborated his wife’s evidence in respect of becoming aware of the problem and the domestic upset, stress and disruption caused in the remedial work involved in the replacement.
When Mr. Mulholland learned of the source of the problem on the 21st February from Mr. Murtagh, he contacted his insurance broker who arranged for an assessor to visit the house. He also engaged the services of an architect. It became clear very shortly thereafter that a new well would have to be drilled and the old well would have to be decommissioned. Mr. Mulholland’s insurer’s loss adjuster suggested that the entire system should be flushed out at the beginning but since no one they spoke to could guarantee them fully that this would solve the problem they were reluctant to do so. He said that the builder and the architect and the plumber all expressed preference for replacement rather than the flushing out exercise. It is to be noted that the architect and the plumber have died since and there was no direct evidence from either of them. According to Mr. Mulholland, the plumber advised Mr. Mulholland that since the plumbing was complex the flushing out might not be that effective.
Mr. Mulholland did not relish the upheaval involved in the replacement option but felt that he had little choice in the matter. It was an option that caused him a lot of difficulty since he had to take a lot of time off from his own business and he had to finance the replacement himself. Furthermore, they had to move out while the work was being done. Mr. Mulholland also gave evidence of the various headings of special damage claimed. I need not dwell on these at this stage. Suffice to say, that as the defendant agreed that the old well had to be abandoned and a new well had to be opened on the plaintiffs’ property to provide a new supply of water to the plaintiffs’ house, the cost associated with this were accepted as being the defendant’s responsibility. Accordingly, the defendant agreed to pay a bill of €3,332.69 to Dunne’s Drilling Services Ltd in respect of work associated with the drilling of the new well; a bill of €247.60 to Ivason Environmental Consultants for the water test report; a bill of €1,048.19 to Phillip Farrelly and Co. for a preliminary environmental investigation provided at the request of the plaintiff on the 22nd March, 2000; a bill of €1,328.15 for the supply and fitting of a pump; the sum of €43.17 for a steam iron which had become contaminated, and the sum of €2,416.73 to S.M. Bennett and Co. Ltd., Hydrological and Environmental Engineers, for investigation and reports. A further sum of €5,590.21 was claimed for travel expenses and meals incurred by the plaintiffs during this disruption. The defendant acknowledged that something was due under this heading, but disputed the amount.
All other special damages claimed by the plaintiffs are in dispute since in the view of the defendant they relate to costs unnecessarily incurred because the plaintiffs decided to replace all of the water piping to the house as well as the central heating.
Whether the plaintiffs were justified in taking the decision to replace all the piping and the central heating when they decided to do so on the 27th March, 2000, is the question which the Court must resolve. Clearly, if the Court comes to the conclusion that the plaintiffs were entitled to take this course of action, the costs incurred in such an exercise would be legitimate damage which they can recover from the defendants. If on the other hand, the plaintiffs were not entitled in law to embark on this more expensive course of action instead of the “flushing out” alternative then they cannot visit those costs and expenses on the defendant.
Where the defendant through his wrongdoing causes damage to the plaintiffs’ property it is clear law that he must compensate the plaintiffs for such damage. In many cases the damage will be clear and obvious and will not be a matter for dispute. In some cases however, such as we have here, the extent of the damage is not immediately clear or obvious and in this case an investigation would have to be undertaken to determine this. If the parties addressed this problem quickly an early agreement might be expected. If, however, there is a delay, problems may arise because of the inconvenience and danger which the damage has caused to the plaintiffs. In such cases, the plaintiff may be forced to unilaterally take action either to minimise his loss or to make reasonable adjustments because of the difficulties he finds himself in. In taking such unilateral action, however, the plaintiff must be careful because there is a danger that the defendants will later complain that this action was either unnecessary or unreasonable in the circumstances and may dispute its liability to pay for such remedial action. In the present case, therefore, the Court must consider the plaintiffs’ response in deciding to replace the entire water and central heating piping in their home instead of the less expense alternative of flushing out the system. It is only if their decision in this regard is reasonable that they can claim these remedial expenses from the defendant. Further, the Court must judge their decision, not with the benefit of hindsight, but in the light of the knowledge and advice available to the plaintiffs when they made their decision and bearing in mind that they were not experts. The context and the circumstances of the case at that time are of course very relevant in assessing the reasonableness of their conduct. It should also be stated that the plaintiffs’ conduct must be viewed from an objective point of view. The question is, given the knowledge which the plaintiffs had available to them and the circumstances in which they found themselves, was their decision reasonable from an objective point of view.
I have already indicated the inconvenience, disturbance, the anxiety and the stress which the interruption to the plaintiffs’ water supply caused the plaintiffs and their family. Nicola became ill and had to be medicated. All water had to be brought into the house for both washing and cooking. Members of the family had to visit relatives to shower and bath and no laundry could be done. So difficult were the conditions that the plaintiffs and their family had to move out and take up residence initially in a nearby hotel and later in rented accommodation. All the time the three teenagers had to attend school, do their homework and try to continue normal social activities while living out of a suitcase. Mrs. Mulholland in particular was very anxious to ensure the safety and health of the family and required a resolution which would fully guarantee a definitive resolution to the problem. Mr. Mulholland had to absent himself from his business in his efforts to address the problem. In addition to assisting on the domestic front he had to engage with builders, plumbers and other professionals to resolve the crisis. The children had to continue with their schooling and keep up their extracurricular and social activities. Finally, the youngest child was preparing for her confirmation which also involved further commitments and obligations.
When Mr. Mulholland was informed by the defendant that the contamination was caused by a leak of kerosene from the central heating tank he set about addressing the problem. He contacted a builder, a plumber and a person who carried on the business of a well driller. He engaged the services of an architect. When he notified his insurer’s loss adjuster, S. Bennett and Company Ltd., a Hydrogeologist consultant was appointed to investigate and report. He received a report from Bennett and Co. Ltd. on the 6th March, 2000. In this report Dr. Gallazzi, a Contaminant Engineer from Bennett and Co. Ltd., made several recommendations one of which suggested the following course of action:-
“Decontamination of the domestic plumbing system may be necessary. A local plumber can carry out a sterilisation process, based on flushing the system with hot water and detergent using our instruction. Further tap water sampling and analysis should be carried out before utilisation of tap water for human consumption.”
This was an important report because of the expertise of Dr. Gallazzi and because of the unequivocal recommendation. Further investigations were also recommended.
Dissatisfied with the recommendations of Dr. Gallazzi the plaintiffs engaged the services of Phillip Farrelly and Co., Environmental Consultants, who reported to him on the 22nd March, 2000. This report was not agreed or admitted by the defendant and there was no one from Phillip Farrelly and Co. who gave evidence to the court. Moreover, both the architect and plumber, who Mr. Mulholland said advocated replacement, were dead at the time of the trial and the builder although in attendance on the first day of the hearing was not available to give evidence when eventually called on the second day of the trial. In opting for the more drastic solution, Mr. Mulholland, in addition, justified his decision by saying that no one could guarantee to him that the flushing out system would work. He also said that Margaret was very upset especially because of Nicola’s illness. In her evidence Mrs. Mulholland at the end of the day said the decision to replace was “our own eventually”.
There were two other reports in existence prior to the plaintiffs’ decision to replace all the pipes in his house on the 27th March, 2000, one of these was dated the 14th March, and was compiled by Environs and co-authored by Dr. Tonra who gave evidence to the court. The second was compiled by K.T Cullen and Company Ltd. and was dated 20th March, 2000. Cullen and Co. Ltd. were Environmental Consultants engaged by loss adjusters for the defendant’s insurance company. Both of these reports strongly recommended that the flushing out method was the appropriate remedial action to be taken in the circumstances.
The Law
In the present case the plaintiffs say they were under a duty of care to mitigate their loss and therefore they claim that they should be entitled to the costs they incurred in replacing the whole pipe work in the house including the central heating pipe work. The defendant argues, however, that although it must pay the plaintiff the expenses incurred in closing up the existing well, drilling for and opening up a new well elsewhere on the plaintiffs’ property and certain additional expenses ancillary to this work, such as the reasonable cost of alternative accommodation, etc. when this work is being done, it is not liable for more. Specifically, the defendant refuse to pay the cost of replacing the whole pipe work in the house, arguing that all that was required to compensate for the wrong he did, having conceded the cost of opening the new well, was to “flush out” the existing pipe work which carried the water on the plaintiffs’ property.
The duty to mitigate does not mean that the plaintiff owes a duty to the defendant, the breach of which will render him liable to the defendant. What is meant by the concept is that the plaintiffs cannot recover damages for loss that they ought reasonably to have avoided. Pearson L.J. in Darbishire v. Warran [1963] 1 WLR 1067 explains the principle clearly at p.1075:-
“… it is important to appreciate the true nature of the so called ‘duty to mitigate the loss’ or ‘duty to minimise the damage’. The plaintiff is not under any actual obligation to adopt the cheaper method: if he wishes to adopt the more expensive method, he is at liberty to do so and by doing so he commits no wrong against the defendant or anyone else. The true meaning is that the plaintiff is not entitled to charge the defendant by way of damages with any greater sum than that which he reasonably needs to expend for the purpose of making good the loss. In short, he is fully entitled to be as extravagant as he pleases but not at the expense of the defendant.”
From this it is clear that the plaintiffs will be entitled to recover such sums as they might reasonably expend to make good the loss, but no more. In determining what is reasonable the courts may give the plaintiffs some latitude, since it was the defendant’s wrong that put the plaintiffs in the position in which they find themselves and an over exacting standard might in such circumstance be unfair. (See McGregor, McGregor on Damages 17th Ed. (London, 2003) at para. 7-064; Butterworths Common Law Series, The Law of Tort, (London, 2002) at para. 6.9.) Nevertheless, the standard is an objective one at the end of the day and the plaintiff cannot expect such indulgence where his conduct is clearly unreasonable and excessive. Perhaps the best way of putting it is to say that the plaintiff can recover as damages what a reasonable person would spend on repairs given the circumstances in which the plaintiff finds himself. This is a question of fact in each case. Underlying this rule is the fundamental principle that the defendant is liable only for the damage which has been caused by his wrongful act. (See Koch Marine Inc. v. D’Amico Societa Di Navigazione A.R.L. (The “Elena D’Amico”) [1980] 1 Lloyd’s Rep. 75, at p.88, col. 2)
One of the facts in the present case that must be considered relevant is that the plaintiffs wanted the repairs to be carried out as quickly as possible, given the inconvenience.
Another factor to be borne in mind was the illness which Nicola suffered as a result of ingesting the contaminated water and the natural fear and apprehension which the parents had as result of this. Mrs. Mulholland in particular was very upset about this and not unnaturally, sought a remedy which would guarantee absolutely a safe domestic zone for the family and the children in particular. It must also be acknowledged that the stress, upset and anxiety which Mrs. Mulholland in particular felt is understandable to an extent. In human terms one can appreciate Mrs. Mulholland’s position: her water supply was contaminated, the home was invaded by smells and fumes (for a short period in any event), there was serious disruption to the domestic schedule and one of her children had suffered intestinal problems. Understandably, this caused Mrs. Mulholland a sense of insecurity.
Nevertheless, in deciding what remedies the plaintiffs were entitled to take at the expense of the defendant, a balance must be struck. The plaintiffs can only take reasonable steps to remedy the damage at the defendant’s expense. If the plaintiffs wish to do more, to satisfy Mrs. Mulholland’s understandable anxieties (understandable, that is, from a human point of view), and such remedial measures exceed what is reasonable in the objective sense, they may have to pick up the extra costs themselves. That is the law as I understand it.
The question then arises as to what information and advice had the plaintiffs when they decided to replace all the pipes on the 27th March, 2000. First, by the time the plaintiffs had established the cause and the extent of the spillage and the source of the contamination, 800 litres or thereabouts of kerosene had leaked from the defendant’s central heating tank. By then the problem had been addressed by the defendant and there was little likelihood of a reoccurrence from that source. Moreover, it appeared that the oil when it escaped followed the natural gradient of the ground and found its way by gravity alone, away from the houses and down to the well in question. In these circumstances it was unlikely that there would be lateral seepage between the two houses. The decision to decommission the old well and drill for a new one higher up on the site was eminently reasonable in the circumstances. With regard to the contamination to the pipe works and the central heating system the position was as follows.
The central heating system was a closed system which, the experts explained, meant that once it was filled at the outset, did not take in any further water. The water in the system, when heated, circulated to the radiators throughout the house without the introduction of any additional water. The supply was sealed, it is only if a leak occurred that more water would be introduced. From this it is clear that any contaminated water from the defendant’s oil spill could not enter the sealed central heating system in the plaintiffs’ house. The evidence given by the plaintiffs that there was a smell of fumes when the central heating came on, may be explained by the fact that the central heating boiler was located in the house at the time. It is highly unlikely that contaminated water entered the central heating system in my view, and there was no need to replace the central heating pipes for this reason. In this connection, it should be noted that the plaintiffs had replaced the radiators in the house in the previous year, because of inadequate heating output, and there was no problem with these up to the time of the spillage. Moreover, the plaintiffs retained these radiators even after they replaced the underground piping, something that I find difficult to understand if they were concerned that the closed heating system had become contaminated. In these circumstances I cannot say it was reasonable to have replaced the central heating piping.
With regard to the water piping, the plaintiffs had advice from its own expert, who was engaged shortly after the problem arose, that the proper remedial approach was to flush out the system. This would involve the introduction of a recognised degreasing detergent and running hot water through the system with some force. Dr. Gallazzi, from Bennett and Company Ltd., Hydrogeological and Environmental Engineers, advised that this would solve the problem. This advice was given to the plaintiffs on the 6th March, 2000. Other expert witnesses, who subsequently gave evidence to the court, were strongly of the view also that not only was the “flushing out” system the appropriate way to treat the problem but that in their extensive experience it had always succeeded in this type of case. Mr. Cunningham, an expert called by the defendant, and a very well respected expert in this area, with a lot of experience, was very strong in his evidence in this regard, declaring that replacing the water piping was wholly unnecessary in this type of case. Mr. Cunningham was involved from the outset on behalf of the defendant and he indicated his recommendation to the plaintiffs long before the 27th March, 2000, when the plaintiffs commenced removing all the piping.
The plaintiffs, however, and Mrs. Mulholland in particular, were not happy with this solution. Mr. Mulholland said his builder and his plumber thought that the surest way of solving the problem was to replace all the pipe work. Moreover, the plaintiffs’ architect apparently also took a similar view. Unfortunately, at the date of trial both the architect and plumber were dead for some years, and the builder who was in court on the 1st day of the trial, was unavailable when called later. For these reasons no direct evidence was forthcoming from these sources. Dissatisfied with the Bennett report of the 6th March, 2000, the plaintiffs then instructed another environmental consultant (Phillip Farrelly and Co.) to recommend a solution. This report was not admitted without proof and for this reason was not before the Court.
It is significant to note that when the flushing system was explained to the plaintiffs, Mrs. Mulholland asked what would happen if the flushing system did not work and she was told that the exercise would then be repeated; and repeated as often as was required. Apparently, Mrs. Mulholland interpreted this as suggesting that it was an inferior method of treating the problem and unsafe; one that would not give her an absolute guarantee. More probably, this explanation was given to indicate that the process could be repeated as often as was required until a satisfactory result was achieved, and was advanced not to cast doubt on the efficiency of the first flushing, but by way of reassurance.
It is also relevant to note that the flushing out method could be done in one working day and involved very little disruption to the household. Certainly there would be no digging up of the floors while it was being carried out.
It is difficult to understand why, given the limited disruption involved in the flushing method, the speed at which it could be done, and the recommendation of their own expert Dr. Gallazzi, why the plaintiffs did not take this option or at the very least give it a try. If, after such a trial an acceptable result was not achieved and the plaintiffs remained dissatisfied, the more drastic remedy of taking up all the piping was still available to the plaintiffs. In acting as they did, the plaintiffs in my view acted precipitously and in an unreasonable way.
At the trial, evidence was given for the plaintiffs by Mr. Bennett, who was the principal in the firm of S.M. Bennett and Company Ltd., the firm engaged at the outset to give advice to the plaintiffs and the first report of which dated the 6th March, 2000, was compiled by Dr. Gallazzi. I have already referred to this report as having expressed preference for the flushing method. At the trial Mr. Bennett gave evidence that he would have reviewed Dr. Gallazzi’s work relating to the site and he would have seen that report before it went out, and presumably approved of it. At the trial he said that at the time, in addressing problems like this, there were two approaches possible. Replacement was pretty normal, but his company had devised an effective way of flushing which although not an absolute guarantee was an acceptable alternative especially when one took into account the disruption and the costs involved. Such a solution depended also on the complexity of the plumbing and the wishes of the family. As already noted there was no evidence before the court of any serious complexity in the plumbing of the plaintiffs’ house and Mr. Bennett never met the plumber or inspected the plumbing in the house. With regard to the latter consideration Mr. Bennett said he had to be aware that he was, in such circumstances, dealing with a very sensitive situation where the parties would be very upset and anxious. He accepted that when engaged in situations such as faced him with the Mulhollands he would at the end of the day do what his clients wished, having given them the appropriate advice.
My view of Mr. Bennett’s evidence was that although he gave evidence that what the plaintiffs did was reasonable, he was being very deferential to the views of the family. They were very upset, they wanted a fully guaranteed and permanent solution, they were prepared to move out of their home and tolerate the disruption and the cost apparently did not feature. He stated in his evidence that although his company’s preferred option would be to flush out the system first, he must, when dealing with lay persons take into account their fears, their feelings and their apprehensions.
In my view when he gave evidence at the trial that the plaintiffs acted reasonably Mr. Bennett, clearly a humane man, was really saying no more than that he understood their preference, in view ,in particular, of Mrs. Mulholland’s anxiety, at the time.
One further point should be recorded in relation to the circumstances that prevailed on the ground in late February and early March, 2000. When the difficulties first arose in February, the defendant offered to link up the plaintiffs’ water supply to his own while the plaintiffs’ pipes were being flushed out. This would have meant that the plaintiffs would have an independent and clean water supply while their supply was being attended to. The plaintiffs refused this offer saying that they found that such a connection might put the defendant’s supply at risk. From the evidence, however, it appears that this offer was first made in correspondence dated the 29th March, 2000, that is two days after the plaintiffs had commenced work in replacing all the pipe work in the house. It does show, however, that in spite of the spillage the plaintiffs and the defendant had remained on good terms and indeed the plaintiff, Mr. Mulholland, gave evidence that the parties were still on good terms at the time of the trial. Nevertheless it does indicate that relations between the parties were not such as to prevent reasonable discussions and negotiations at all times.
In cross examination Mr. Bennett confirmed that it would have been reasonable to flush the system first before carrying out major works of replacement. He also confirmed that Dr. Gallazzi’s recommendation on the 6th March was a sensible suggestion. Clearly he made a distinction between what was reasonable from a professional point of view and what was reasonable from the home owner’s position. Finally he confirmed that his preferred suggestion was to flush out first but bearing in mind the family’s reluctance he could sympathise with their preference.
Finally, Dr. Conor Tonra from Environs (Knowledge Innovation Solutions) also gave evidence. Dr. Tonra took his Ph.D. from Dublin City University in 1992. He has been an environmental consultant since that year and a director of Environs up to 2001. Dr. Tonra visited the site on the 2nd March, 2000, and reported on the 14th March, confirming some contamination in the plaintiffs’ supply. His recommendation was that the entire plumbing and water pumping system should be cleaned and decontaminated by a suitably qualified professional and that the well should be purged of up to five times its volume before being decontaminated by a suitably qualified professional. In his evidence Dr. Tonra indicated that this was his original recommendation at the time and remained his opinion at the trial.
Mr. Peter Johnson, a mechanical and manufacturing engineer, furnished the report dated the 1st February, 2007, as a result of a visit to the plaintiffs’ site on the 13th November, 2006. Mr. Johnson gave evidence as to the closed nature of the central heating system and that it was very unlikely to have been be contaminated by the leak. Even if it were by some strange reason contaminated, the central heating system could also be flushed out and this would be a proper solution. Mr. Johnson also gave evidence that in his opinion the road which had to be laid to open up the second new well was necessary and appropriate in the circumstances. Finally Mr. Johnson said that in his opinion there was no essential improvement to the house as a result of the extensive replacement of piping. The value of the property had not been enhanced by these works.
Having made my determination on the above issue it now remains for me to assess damages under the respective headings
(a) Special damages
(b) General damages
Special Damages
The defendants in meeting this case have conceded that they are liable for headings 1, 2, 6, 10, 12 and 17 which total €8,416.53. I also find that headings 12 and 13, €67.23 and €272.36, respectively, for replacement of bed linen contaminated in the wash are recoverable by the plaintiffs. Heading number 8 is a bill supplied by the builder Anthony Duffy Limited, in total amounting to €51,424.39. Because the defendants have agreed that the plaintiffs were obliged to close up the old well and drill for and open and new well, they are also liable for reasonable costs in respect of this work as well as the cost of laying a road up to facilitate the works on the second well. I also find it reasonable in the circumstances that the cost of them moving the boiler from the house to a new location should be borne by the defendant. The cost of replacing all the pipes however is not to be laid at the defendant’s door and for this reason the plaintiffs cannot recover for these works. Unfortunately, because the builder was not in attendance and his bill was a composite bill and not broken down into subheadings, the Court is faced with a difficult problem in allocating exactly for what the defendant is liable and what the plaintiff must bear themselves. Doing the best I can I will award the plaintiffs €27,000 in respect of the works in question.
With regard to the other headings claimed as special damages I award the following sums: –
– a sum for cleaning up and redecorating; €600
– a sum for architect’s advices; €3,500
– a sum in respect of rent and accommodation; €1,000
– a sum in respect of travel expenses, extra meals and miscellaneous expenses; €1,000
Totalling all of these special damages I arrive at a figure of €41,856.12.
Under the heading of General Damages I award the sum of €30,000 which brings my total award in favour of the plaintiffs to €71,856.12.
Yun v MIBI and Tao
[2009] IEHC 3
Judgment of Mr. Justice John Quirke delivered on the 17th day of July 2009
The plaintiff, Ms. Yang Yun, was born on the 1st May, 1981, and is now twenty-eight years old. On the 9th May, 2002, just eight days after her twenty-first birthday, she suffered serious personal injuries when a motorcar, driven by the second named defendant, Tommy Xiang Bai Tao, struck the rear of another vehicle on the public highway near Drogheda in County Louth. It then collided with a third vehicle.
The plaintiff was a rear seat passenger sitting directly behind the driver of the vehicle when the collisions occurred. She was wearing a seatbelt. She suffered very serious injuries as a result of the collisions including: (i) a compression fracture of her first lumbar vertebra, and, (ii) a further compressive collapse of the superior anterior end-plate of her first lumbar vertebra with kyphosis in an anterior posterior direction at the level of the fracture.
In these proceedings she claims damages from the defendants to compensate her for her injuries and for the consequent loss and damage which she has sustained.
She claims that the collisions, (and her consequent injuries), were caused by the negligence and breach of duty of the second named defendant, Tommy Xiang Bai Tao.
Her claim against the first named defendant, the Motor Insurers Bureau of Ireland, is made pursuant to the terms of an agreement in writing dated the 21st December, 1988, between the (then) Minister for the Environment and the Motor Insurers Bureau of Ireland.
Both defendants admit that the road traffic collisions on the 9th May, 2002, which caused the plaintiff’s injuries were caused by the negligence of Tommy Xiang Bai Tao and that the plaintiff is entitled to recover damages from both defendants, jointly and severally, to compensate her for her injuries and for the loss and damage which she has sustained and will sustain in the future.
No contributory negligence has been alleged on the part of the plaintiff and, accordingly, the task for this Court is to assess the damages to which the plaintiff is entitled by reason of the admitted negligence and breach of duty of the second named defendant.
FACTUAL EVIDENCE
The following facts have been established in evidence:
1. The plaintiff was born on the 19th May, 1981, in the city of Dalian in Northern China. She is the only child of devoted parents. Her mother is the manager of a hotel and her father is a transport manager working in the same hotel. She was enrolled by her parents in a good local regional school (called the Dongbei University of Finance and Economics) at the age of 6 years and received an excellent first and second level education in China.
A Notarial Certificate issued by her school recorded that, during her final three years at school, (between the 1st September, 1997, and the 15th July, 2000,) she attended the school’s College of Technology and achieved an impressive student’s score list in a variety of subjects including: Chinese; Maths; English; Computer Science; Economics Law; Securities Law; Physical Education and a number of other subjects.
She chose not to proceed to third level education in China. Instead she decided to travel with her boyfriend, Tony Cao Zhi (hereafter “Tony”), to Europe after graduation so that she could learn English and study accountancy.
She wished to graduate with an internationally recognised degree in accountancy. An advertisement in a local newspaper recommended Irish educational institutions and in consequence she chose to travel to Dublin to achieve her objective.
She arrived with Tony in Dublin and commenced an intermediate English language course in the American College in Dublin for six months.
In April, 2002, she enrolled in the English Language Institute on St. Stephen’s Green for a one-year course in English at a cost to her of €2,000.
Thereafter, it was her intention to commence a three-year accountancy degree course in either University College Dublin or Grace’s College preparatory to graduation as a Certified Accountant.
She obtained a student visa which permitted her to work in Ireland for up to twenty hours per week whilst she was resident within this jurisdiction.
2. On 9th May, 2002 the collision occurred which caused her injuries. The car in which she was a passenger was travelling from Dublin towards Drogheda. She heard a bang and felt that her body had been thrown forward and backwards as a result of a very big impact.
She immediately suffered pain in the middle of her back which was so severe that she could not speak and was unable to move. When the car came to a halt she loosened her seatbelt with her left hand and opened the door with her right hand. When she tried to step out and to stand up, she felt unbearable pain in her back and slid down onto the ground close to the damaged car.
After a short time an ambulance came and she was provided with oxygen. Supports were placed on the stretcher which had been provided for her. A paramedic cut off her clothes and touched the area which was swollen. When he did so, she suffered a pain so severe that it was difficult to describe. She was brought to Our Lady of Lourdes Hospital in Drogheda where X-rays and CAT (CT) scans were undertaken.
On admission to hospital, she was asked to stand up but the pain was so severe that she became deaf and was assisted back to bed, she was sweating and her hair was sticky and her clothes were wet.
She remained in the hospital in Drogheda for between eight and ten days suffering constant severe pain in her back. Whilst in the hospital she could not walk or visit the bathroom by reason of her condition. Doctors administered painkillers intravenously though her stomach. A swollen area developed in the centre of her back which she could not touch.
3. She was treated in hospital by way of medication only. A soft brace was applied to her back. After she had been discharged home she suffered constant debilitating pain and very severe disability in every aspect of her life. This pain and those disabilities have remained with her constantly since. She has required continuous care and assistance from her boy friend, Tony, for every type of domestic activity and for the performance of intimate bodily functions. This has caused her constant humiliation and embarrassment.
She needs assistance walking, (even short distances), because the pain when she walks is severe. She sleeps in pain and with difficulty for short periods. She cannot sit for any lengthy period. She cannot stand for more than ten minutes at a time without pain. She wears a soft brace permanently for twenty-four hours of every day.
She has spasms of neuralgic pain which she describes as “unbearable”. She requires incontinence pads during these spasms. When she suffers a spasm, she is “untouchable” and cannot be helped. She must lie on her bed during the most severe spasms which last for an entire day.
She requires the application of painkilling cream and infrared treatment every morning and every night to help relieve the pain. She takes medication every four hours. This adversely affects her appetite and often causes her to vomit. She eats from a feeding bowl by lying backwards and balancing the bowl upon her chest. If she tries to eat in any other manner, she loses her appetite entirely.
If she wishes to use the bathroom at night, she needs assistance to make that journey. She has constant dreams about the collision. In these dreams she is flung backwards and forwards. These dreams terrify her and make her relive her immediate post-accident pain. She has been unable to return to school to continue her studies.
Before the accident, she telephoned her parents regularly. She lives upon the remittances which they send to her from China. She has not informed her parents about the collision and her injuries because she does not want them to discover her present status. Her injuries are a source of shame for her. Disability carries with it a stigma in her home region in China. If her parents knew of her condition they would be worried and concerned about the life she is now living far away from them. Her father has a fragile heart condition. She is concerned for his health if he learns of her injuries and their consequences for her.
As a consequence of the accident she now has an unsightly swelling or hump in the lower centre of her back which is known as a “gibbous”. Her medical advisers have discussed with her the possibility of her undergoing reconstructive surgery to correct this deformity and to reduce her pain. They have explained to her that the angulation of her back has been adversely affected by her injury. It should be nought degrees. Immediately after the accident it had increased to between thirty degrees and forty degrees. It is presently sixty degrees and is likely to deteriorate further.
The objective of the surgery will be: (a) to correct the unsightly angulation within her spine and to remove the “gibbous” and (b) in particular, to relieve or reduce the level of continuous pain which she now suffers as a consequence of her injury.
She has been told in lay person’s terms that the surgery, if undertaken, will require that she be stretched across a bent table while her back is surgically opened so that metal or titanium rods can be inserted within her spine. Thereafter, the table will be straightened and the spine will straighten with the table.
Having advised her of the risks associated with it, (including a risk of paraplegia which has been calculated at between 1% and 5%), her surgical advisers have recommended that she should undergo the surgery.
She is not willing to do so. She has a consuming fear of paraplegia. One of the reasons for her fear is that physical disability, (and in particular paraplegia), carries with it a special stigma in her home region in China.
Additionally she has been advised that if the surgery is successful, it may not necessarily relieve her pain.
Prior to the accident the plaintiff worked regularly for approximately twenty hours each week as a cleaner in the Jervis Shopping Centre. She had been lawfully entitled to work for twenty hours each week under the terms of her student visa.
MEDICAL EVIDENCE
(A) Physical Injuries
1. Mr. Ashley Poynton, who is a consultant orthopaedic and spinal surgeon, and Mr. Christopher Pidgeon, who is a consultant neurosurgeon were in full agreement on the nature and extent of the plaintiff’s physical injuries.
She has suffered “a devastating spinal injury” which includes a compression fracture of the anterior superior end-plate of the first lumbar vertebra (LV1). Her complaints are entirely consistent with her injury.
X-rays have shown a progressive compressive collapse of the vertebra into a “wedge” shape which has left her with a significant kyphosis. The vertebra has been “squashed” and the compression has been “pretty well total”. In consequence the plaintiff now has a significant curvature of the spine and suffers from chronic low back pain with some thigh numbness, (resulting from nerve route compression).
She has also suffered probable fractures of the transverse processes which are wings at the side of the vertebrae to which muscles are attached. The fractures of the transverse processes have not been as serious as the compression fracture.
There has been slippage of at least one adjoining vertebra (TV12) and narrowing of the LV1/2 disc space with sclerosis (increased bone density) at that level.
Adjacent margins (DV12 and LV1) show signs of the onset of degenerative change. This change was not present in earlier MRI scans and is the direct result of the impact from the road traffic accident.
The X-rays and MRI scans, which Mr. Poynton examined, demonstrated that the fracture has resulted in an injury which has torn through the soft tissues which were the restraining structures in respect of the vertebrae. The result has been what is called a “soft tissue chance injury” which has resulted in progressive compression. This, in turn, has given rise to angulation of the spine. The apex of the angulation is the “gibbus” in her spine at this level and this has been consistent with the injury and its consequences.
At the time when she was injured the severity of the compression fracture at the LV1 level was underestimated by the medical staff responsible for treating her. Accordingly, she did not then receive and has not since received the surgery which she urgently requires.
That surgery, (described in evidence as “formidable”), if undertaken now, is likely to be lengthy and painful and she will require significant rehabilitation after its completion. It carries with it a number of risks including the risk of paraplegia. It also carries with it an increased risk of “second segment disease” immediately below the area affected.
The level of the plaintiff’s injury is at the junction between her abdomen and chest, and in consequence it has caused her significant back pain when she does simple things, (like standing in front of a washbasin, bending, stooping, lifting and undertaking small household chores).
Although she has been able to walk outdoors with some support for up to two hours and should be physically capable of showering while seated, she finds such activities very difficult and is unable to perform them without ongoing constant help and assistance.
Lumbar lordosis in the plaintiff’s spine is the result of compensation for the compression fracture and is the physical cause of the plaintiff’s low back pain.
She complains of frequent constipation. This is consistent with her injury and has resulted from: (a) immobility; (b) pain killing and antidepressant medication; and (c) pressure upon the gastrointestinal system from the affected vertebrae and soft tissue.
If the surgery is performed, she should be able to study and to pursue a career of the type which she had contemplated before the accident.
Mr. Poynton has advised the plaintiff to undergo the surgery but has been required to warn her of the risks associated with the surgery including a risk of paraplegia which he has estimated at between 1% and 5%.
He advised her that where the surgery is performed using spinal cord monitoring, the risk is reduced to 1% or possibly less. He also warned her of other potential risks associated with the surgery including infection, part-paraplegia, and severe bleeding.
The plaintiff’s injury is complicated by the fact that she is concurrently suffering from a profoundly disabling psychological injury which has been directly caused by the road traffic accident and which has remained untreated for more than six years.
When asked to estimate the prospect of the plaintiff undergoing the required surgery and returning to her studies, Mr. Poynton replied: “I would say possibility is more realistic than probability”.
Although he has strongly recommended the surgery to the plaintiff, he believes that it is reasonable for the plaintiff to refuse to accept his advice.
Some of his patients have declined this surgery in similar circumstances. One such patient declined the surgery because she is the mother of three children.
If the plaintiff does not have the surgery, she will continue to have significant pain, her condition may deteriorate and her chances of successfully giving birth will be called into question.
If she does undergo the surgery, pain management will be required after the surgery and she will require considerable ongoing assistance from her boyfriend because an adverse psychological state can impact upon rehabilitation.
The cost of the surgery is estimated at €33,000 for one day. Thereafter, the plaintiff will require inpatient treatment for between one week and one month and further rehabilitation for up to six months.
The surgery, if performed, will result in significant scarring. The length of the incision will be 20 to 30 centimetres. After the surgery, bracing will be required for some three months. A lightweight brace can be used which can be removed at night but causes discomfort.
If she undergoes the surgery, she may still continue to have back pain and this may influence her ability to perform occupations with a physical component such as cleaning, lifting and carrying.
If she does not undergo the surgery, she will require ongoing pain management and approximately three to four hours care every day.
Mr. Pidgeon is in agreement with the findings and views of Mr. Poynton. He further advised the plaintiff as follows:
(a) she should undergo the surgery because, if successful, her posture will be improved and the risk of degeneration reduced;
(b) if the surgery is successful, she will probably be physically capable of greater independence in domestic and other areas, (although the pain is unlikely to be eliminated altogether);
(c) in making her decision, she should take into account the pain and discomfort she is currently suffering;
(d) if the reconstructive surgery is undertaken, and is successful, then she will probably be fit for light work which does not involve heavy lifting or prolonged stooping or bending; and
(e) if she does not undergo the surgery, she will have no realistic employment prospect.
Although, if he were in the plaintiff’s position, he would undergo the surgery, Mr. Pidgeon is of the opinion that the decision in relation to the surgery is a decision which only the plaintiff can make.
(B) Psychiatric/Psychological Injuries
Evidence of the plaintiff’s psychological and psychiatric injuries was adduced by Dr. Paul McQuaid and by Dr. David Shanley who are experienced consultant psychiatrists. They were in agreement in respect of her psychiatric and psychological injuries.
The plaintiff has developed a significant post-traumatic disorder of her mind which is known as mood disorder. It is a verifiable condition. This mood disorder, which is a disabling injury, is a direct consequence of the back injury which the plaintiff sustained in the road traffic accident.
She has needed urgent medical intervention including support and treatment for her mood disorder since she first suffered the injury to her back. She has been mentally depressed, withdrawn, apathetic and nihilistic since then.
In April, 2006, Dr. McQuaid was so concerned about her condition that he urgently requested that his medical findings should be made available to the health authorities so that the plaintiff could be provided with immediate treatment and support. She did not receive that treatment.
When Dr. McQuaid examined the plaintiff on the 10th July, 2007, he found that she had deteriorated. Reporting on that examination, he concluded inter alia that:
“Maggie remains significantly depressed, conflicted, withdrawn, apathetic and nihilistic. Her mood disorder persists in the context of a significant back injury following the road traffic accident with which this report is concerned, now five years ago. Her overall circumstances have worsened and she represents a major challenge, both in terms of surgery and mental health needs.
The undersigned remains very concerned about her and has communicated that concern to her solicitor. It is quite unacceptable that she should be without appropriate general support and specifically, mental health intervention. Were she an Irish citizen, it would be an immediate requirement that she receive mental health intervention, probably admission to an acute psychiatric unit. She is fundamentally conflicted about her situation and helpless to do anything about it. Noteworthy are her depressive symptoms and thoughts of suicide. The prognosis is currently grave.
Lastly, her ability to work in the future is a subject about which it is virtually impossible to give a proper opinion, given her current state of disability and mental disturbance, although increasingly, the prognosis seems poor.”
On the 23rd July, 2008, the plaintiff continued to suffer severe mood disorder. She was very vulnerable and entertained thoughts of suicide. Her background circumstances, including the fact that her parents were so far away in China together with a fear of what might happen should she return to China contributed to her depressive condition.
Although her mood was down and her demeanour troubled, tearful and uncomfortable, she had obtained a clear benefit from treatment which she was then receiving from Dr. David Shanley.
The plaintiff is one of the most severe cases of mood disorder that Dr. McQuaid has encountered in his career. Suicidal ideation is one of the main concerns for psychiatry and the plaintiff is one of the most severe cases associated with that ideation that Dr. McQuaid has encountered. She represents a real risk in this respect.
Persons suffering from psychological illness can often feel pain more intensely by reason of their psychological condition. Dr. McQuaid has never entertained any doubt that the plaintiff’s pain is real.
He believes that she is conflicted by the issue raised by the recommendation of surgery. Part of her recognises that she should have the surgery. Another part of her is frightened of it. He describes her as “stuck” in this conflicted position, unable to make a decision. He believes that this is reasonable, having regard to the circumstances in which she has been placed.
He is of the opinion that very intensive psychiatric treatment over a period of between three and four months and subsequent further psychiatric treatment thereafter may bring her to the point where she will be in a position to make a rational decision in relation to the surgery. A decision to undergo the surgery would be rational.
The psychiatric treatment required would be extensive and expensive and could take a significant period of time.
Dr. Shanley is of the opinion that the plaintiff is profoundly depressed with marked psychomotor retardation. That means that her movements are slowed, her concentration is poor, she has difficulty sleeping, she has lost interest in everything and she has a poor appetite.
These are all classical symptoms of depression and they are fuelled by the fact that she feels she has not lived up to her family’s expectations and is therefore unable to tell them about her injury and her consequent dilemma.
She has cut off all communication with her friends and appears to be trapped in a time warp, unable to move or to make decisions. The severity of her depression distorts her thinking, which, at times, is delusional.
After Dr. Shanley prescribed antidepressant medication and sleeping tablets, there was a slight improvement in her condition and she cried less frequently. However, she remains profoundly depressed, is fatalistic and negative towards her future and refuses to consider the surgery which has been recommended for her.
Dr. Shanley can understand the plaintiff’s decision to refuse surgery. Like Dr. McQuaid, he recommends a very intensive course of inpatient treatment which he estimates will take approximately three months in an institution such as St. Patrick’s Hospital or St. John of God’s Hospital. He estimates that the treatment will cost approximately €550 per day. He points out that because of her difficulties with language, she would need an interpreter during this treatment, (especially during psychotherapy sessions).
He believes that there is no possibility that the plaintiff will undergo the requisite surgery unless she receives this psychiatric treatment. While there is a “prospect” that the psychiatric treatment will be successful in assisting the plaintiff to make a rational decision in relation to the surgery, Dr. Shanley does not describe it as a “good prospect”.
Stating that he would undergo the surgery if he were in her place, he continued: “I am quite certain that Maggie is adamant that she will not have the operation”. When asked, in cross-examination, whether he thought that the surgery was a “probability” or a “possibility”, he replied “possibility”.
RECOMMENDED SURGERY
In seeking to assess the damages to which the plaintiff is entitled, the central question which must be addressed is whether, on the evidence and on the balance of probabilities, the plaintiff will undergo the reconstructive surgery which has been recommended for her.
The plaintiff testified over a period in excess of four days. Although interpretation requirements added considerably to the duration of her evidence, she nonetheless described her injuries and their consequences carefully and in great detail.
Her evidence was consistent with and corroborated by the expert medical evidence which was adduced in these proceedings. It was also consistent with and corroborated by the findings of a private investigator retained by the defendants, who placed the plaintiff under surveillance and recorded her movements on camera without her knowledge on a number of occasions between the 5th February, 2008, and the 20th February, 2008.
During her testimony and at other times while she was present in court the plaintiff appeared to be in constant pain, never smiled and moved slowly and with obvious difficulty.
She became animated only on two occasions: (i) when speaking about her parents in China and (ii) when she was expressing her determination not to subject herself to the reconstructive surgery which her doctors strongly recommend for her.
In every other respect her demeanour appeared withdrawn, depressed, hopeless and joyless. She is now twenty-eight years old.
I found her to be a careful and conscientious witness. I accept that she is, at present, determined not to undergo the recommended surgery.
The question which must be addressed is whether, on the balance of probabilities, she will, in fact, undergo the surgery at some future date.
This court is not competent to answer that question. It must be guided by, and rely upon, the expert medical testimony which has been adduced in respect of that issue.
The expert medical witnesses unanimously agree that it is greatly in the plaintiff’s interests for her to undergo the surgery.
Mr. Poynton and Mr. Pidgeon (quite properly) refuse to try to predict the ultimate decision but stress that, at present, the plaintiff is determined to exercise her undeniable right to decline the surgery.
Mr. Poynton says that it is reasonable for the plaintiff to refuse to accept his recommendation. He was sceptical about the prospect of the plaintiff agreeing to undergo the surgery. He pointed to others amongst his patients who have declined this surgery for reasons not dissimilar to those identified by the plaintiff.
Dr. McQuaid believes that the plaintiff’s refusal to consider surgery has been influenced by her mood disorder. He says that this disorder makes it impossible for her to make a rational decision at present.
He is of the opinion that intensive inpatient psychiatric treatment over a period of three or four months and subsequent additional outpatient psychiatric treatment may bring her to the point where she will be in a position to make a rational decision and, in consequence, to undergo the surgery.
Dr. Shanley agrees that intensive inpatient psychiatric treatment will benefit the plaintiff. However, he says that the prospect of the plaintiff undergoing the surgery after such treatment can only be described as a “possibility” and not a “probability”.
On the evidence there is no prospect of the plaintiff undergoing the surgery within this jurisdiction in the foreseeable future unless she first is prepared to be admitted to St. Patrick’s Psychiatric Institution or to St. John of God’s Psychiatric Hospital in order to undergo a three -month programme of inpatient psychiatric treatment.
She must then be prepared to submit herself to outpatient psychiatric treatment for a further significant period before she will be capable of seriously considering the question of subjecting herself to the recommended surgery.
I am assuming, for the purposes of this issue, that she will be permitted to remain within this jurisdiction during the proposed psychiatric treatment and thereafter in order to consider, (and possibly undergo) the surgery.
For more than six years now, she has lived in confined accommodation within a country which is more than 10,000 miles from her home. During that time she has had little contact with any person other than her boyfriend, Tony, upon whose support she has been totally dependant for every kind of personal care.
She will not enjoy his support during inpatient psychiatric treatment and it is unlikely that she will receive comparable support having regard to language and other communication difficulties. She will still be the same distance from her home.
If the psychiatric treatment is successful, Dr. Shanley believes that the prospect of her undergoing the surgery can be described as a “possibility”.
Dr. McQuaid takes the view that intensive psychiatric treatment, if successful, will enable the plaintiff to make a “rational” decision about the surgery. Dr. Shanley agrees but says that the resulting “rational” decision is unlikely to be positive.
The fact that the expert and other relevant witnesses believe that, faced with the same decision, they would choose to undergo the surgery does not necessarily render irrational a contrary decision by the plaintiff.
The fact that the plaintiff is presently suffering from a mood disorder which affects her capacity to make rational decisions does not mean that a decision made by her (now or later) not to undergo the surgery will necessarily be irrational.
A small number of patients who are unimpaired by any psychiatric or psychological illness or injury have declined this reconstructive surgery for reasons which, to them, were quite rational.
The prospect, however small, of paraplegia clearly terrifies the plaintiff. It appears to have been magnified by a stigma which, apparently, attaches to disability within her home region in China. Her terror of paraplegia is not necessarily irrational. It has been shared by others in this jurisdiction and elsewhere.
I have with regret concluded that, on the evidence and on the balance of probabilities, the plaintiff is unlikely to undergo the reconstructive surgery which has been recommended for her and that she will probably rely upon pain management and care to reduce the effects of her injuries.
I have based that conclusion principally upon the medical evidence adduced in the case. I have also been influenced by the plaintiff’s testimony and by her personal circumstances.
MITIGATION
It is contended on behalf of the defendants that, if the plaintiff refuses to undergo the surgery, she will have failed to take reasonable steps to mitigate her injury and will be seeking to visit upon the defendants a liability for injury, loss and expense which is unreasonable and unnecessary in the circumstances.
The duty which rests upon a claimant to mitigate injury, loss and damage sustained as a result of negligence is well established. It includes a duty to obtain such medical treatment as may reasonably be necessary to reduce the claimant’s pain and suffering and the extent of any loss which he or she may sustain and subsequently seek to recover.
Questions concerning whether or not claimants have acted reasonably in order to mitigate injury and loss are questions of fact for the court – (see Sotiros Shipping Inc. v. Sameiet Solholt [1983] 1 Lloyd’s Rep 605).
Where it is claimed on behalf of a defendant that a claimant has failed to mitigate by refusing recommended surgery, the onus rests upon the defendant to show that the claimant’s refusal has been unreasonable in the circumstances (see Steele v. Robert George & Co. (1937) Ltd. [1942] A.C. 497, Richardson v. Redpath, Brown & Co. Ltd. [1944] A.C. 62 and Selvanayagam v. University of West Indies [1983] 1 WLR 585).
The medical experts who testified in these proceedings were disappointed by the plaintiff’s refusal to undergo the surgery which they were recommending. However they were unanimous in their view that her refusal was reasonable in the circumstances. No evidence was adduced suggesting otherwise.
It follows that the onus of proving the failure to mitigate has not been discharged in these proceedings.
F. (J.) v. Minister for Health [2001]
IEHC 158 (9th November, 2001)
THE HIGH COURT
2000 15 CT
Judgment of Mr. Justice O’Neill delivered the 9th day of November 2001.
1. The Appellant in this case instituted a claim before the Hepatitis C Compensation Tribunal pursuant to Section 4(1)(d) of the Hepatitis C Compensation Tribunal Act 1997 (hereinafter referred to as the Act of 1997). This claim was heard by the Tribunal on the 16th day of October, 2000 and the claim was disallowed on the basis that the Tribunal concluded that the Appellant was not a person who was or is responsible within the meaning of Section 4(1)(d) of the Act for the care of his mother that even had the Tribunal been so satisfied, it would have held that the assistance which he gave to his mother in the running of her business did not amount to care within the meaning of the Act.
2. The Appellant was born on the 24th April, 1974. He’s one of seven children of E. F., his mother who was infected with Hepatitis C in 1977 and who brought a claim to the Hepatitis C Compensation Tribunal, which claim was heard by the Tribunal on the 23rd day of June, 1998.
3. The facts relevant to this appeal as deposed to an Affidavit are as follows.
4. E. F. ran a cigarette vending business which consisted of the wholesale sale of cigarettes to various businesses. The machines were owned by E. F. She ran these machines by having them stocked with cigarettes and made her profit from the sale of the cigarettes and paid a commission to the owner of the establishment where the machines were kept. The Appellant was a full time secondary school student from September 1987 to December 1991. He did his Junior Certificate Examination in 1989 and Intermediate Certificate in 1990. During these years E. F. was suffering a considerable amount from her Hepatitis C virus which she had been infected with in 1977. The Appellant’s father had suffered from ill health and had not worked since 1985. The Appellant intended to do his Leaving Certificate in June of 1992 and go on to do an apprenticeship as a carpenter and to qualify in this trade. The Appellant’s mother’s condition resulted in a situation where she became unable to carry on running her business and in December 1990 the Appellant left school to take over the running of the business.
5. The business doesn’t appear to be particularly successful but it would appear the family appear to have got a living from it and E. F. was very anxious that the business would be kept going and had it in her mind to hand it on to her youngest child eventually. Unless the Appellant or presumably another sibling took over the running of the business it would have been lost.
6. The Appellant made the case to the Tribunal and to this Court on Appeal that but for taking over the running of the business in 1990 he would have gone on to do his Leaving Cert, his apprenticeship as a carpenter and to have qualified and that he would have worked in the construction industry as a carpenter. As a consequence of not being able to take this course he contends that he has suffered a very severe financial loss because the drawings that he is able to take from his mother’s business, have been and continue to be considerably less than the earnings he would have as a carpenter. A report was submitted to the Tribunal from a Mr. McCarthy to the effect that the Appellant’s loss of income up to the 30th April, 2000 was the sum of £28,475. In addition to that a further claim is made in respect of overtime on the basis of ten hours a week which comes to £21,054 making a total of loss claimed to the 30th April, 2000 of £49,511. Further the Appellant claims that the loss is continuing and will go on into the future.
7. When the matter was heard in the Tribunal the Appellant did not go into evidence, submissions having been heard by the Tribunal on legal issues arising out of the interpretation of Section 4(1)(d) of the 1997 Act and having heard those submissions the Tribunal determined that the claim should be disallowed. When the appeal came on for hearing before me it proceeded in a similar fashion, submissions being made by Mr. Keane SC for the Appellant and by Mr. Carson SC for the Respondent and apart from the Affidavit grounding the proceedings and exhibits referred to therein no other evidence was at that time adduced.
8. This appeal therefore is concerned with the interpretation of Section 4(1)(d) of the 1997 Act. It reads as follows:-
“(4)(1)
9. The following persons may make a claim for compensation to the Tribunal:-
(a) a person who has been diagnosed positive for Hepatitis C resulting from the use of Human Immunoglobulin Anti-D within the State,
(b) a person who has been diagnosed positive for Hepatitis C as a result of receiving a blood transfusion or blood product within the State,
(c) children or any spouse of a person referred to in paragraph (a) or a person referred to in paragraph (b), who have been diagnosed positive for Hepatitis C,
(d) any person who is responsible for the care of a person referred to in paragraph (a), (b) or (c) and who has incurred financial loss or expenses as a direct result of providing such care arising from the person being cared having contracted Hepatitis C,
(e) where a person referred to in paragraph (a), (b) or (c) has died as a result of having contracted Hepatitis C or where Hepatitis C was a significant contributory factor to the cause of death, any dependant of any of such person and
(f) a person referred to in Section 9 in accordance with that Section.”
10. Mr. Keanc SC for the Appellant submitted that the Appellant was a person who was responsible for the care of his mother and that he had incurred financial loss. He submitted that the particular care that E. F. required of the Appellant was for him to run the business and preserve its existence for her benefit and that of her family. In taking on this task the Appellant devoted himself to the care of his mother, and hence he was a person who was responsible for the care of his mother within the meaning of Section 4(1)(d).
11. Mr Keane referred to the case of The Inspector of Taxes -v- Kiernan [1982] ILRM 13 and relying upon that case submitted that the word “care” should be given its ordinary or colloquial meaning, that the Act of 1997 was one directed to the public at large and that the word “care” would be understood by ordinary people in its natural context as not being confined merely to care of the body but as involving a broader scope of care and in particular financial care.
12. Mr Keane submitted that for the purposes of the Section the only limitation on the scope of the care to be provided is that it must arise from the person being cared for having Hepatitis C. He posed the question “did her son show any care for her” to which he said the answer most decidedly was in the affirmative. He submitted that in fulfilling his responsibility the Appellant not only provided financial care for E. F. but in so doing relieved her physical and mental suffering in particular her depression.
13. Mr Keane referred to a decision of mine in the case of M. O’C. -v- The Minister for Health, judgment delivered 28th July, 2000 in which the Appellant in that case a teacher, gave up some teaching activities to look after his wife who was a sufferer from Hepatitis C and also to look after their children, she being unable to do so and he pointed to the fact that he was compensated for his loss of earnings as a result of having to give up these teaching activities. Mr. Keane submitted that there was no difference in reality between the domestic chores which the Appellant in the M. O’C. case took up and the assistance which the Appellant in this case gives by running the family business.
14. Counsel for the Respondent Mr. Carson SC submitted that the Appellant’s factual situation was not sufficient to bring his claim within the key phrase in the Section which is to the effect that he must be a person who is “responsible” for the care of E. F. He submitted that the Appellant was not someone who had this responsibility.
15. Mr. Carson submitted that “care” in the Act was not sufficiently wide to cater for the situation which arose in this case where the owner of a business got someone in i.e. the Appellant to run the business. He contrasted the situation in this case to that which pertained in the M. O’C. case which was a domestic situation pure and simple and he submitted that the area of care as envisaged in the Section was not to be extended beyond the domestic situation to the commercial area. He pointed to the farming situation which has frequently come before the Tribunal and this Court on appeal, where the losses which arise in farm income are claimed as the personal loss of the Hepatitis C sufferer.
16. Mr. Carson submitted that it was envisaged by the Act in particular at Section (5)(1) that
“ an award by the Tribunal to a Claimant shall be made on the same basis as an award of the High Court…”.
17. In an action tort in the High Court only the person who has actually suffered a loss can make a claim. Here the loss is that of the Appellant not of E. F. and the concept of “care” cannot be so extended as to encompass the loss claimed in these proceedings. Such an approach would conflict with the clear intention of the Act to the effect that damages are to be assessed on the same basis as in an action in tort in the High Court.
18. Mr. Carson submitted that Section 4(1)(d) requires that the loss would be “as a direct result of providing such care”. He contrasted this case with the M. O’C. case where the loss was as a direct result of being unable to do work which the Appellant in that case would otherwise have done. Mr Carson submitted that in this case the Appellant was not a carpenter and therefore could not show any direct financial loss. He submitted that the loss claim was of an indirect or potential nature. Had he become a carpenter he might have been able to show a differential between his earnings as a carpenter and his drawings from the cigarette business. He submitted that a direct loss only occurs where a carer gives up employment and incurs loss or else employs someone else to provide care and incurs expense. He submitted that to push it beyond a situation where a carer does not give up work or provide care would open a floodgate permitting very large numbers of persons whom he submitted were not contemplated by the legislator to make claims under Section 4(1)(d). He submitted that the policy of the Act was to seek the person who had taken on responsibility for care and thereby directly suffered a loss. He contrasted this with the kind of potential or indefinite loss claimed to have been suffered by the Appellant in this case which he submitted was wholly outside the ambit of a “direct result” of providing care for somebody who has suffered from Hepatitis C.
19. Mr. Carson submitted that the ordinary rules for recovery of loss in an action in Tort apply and the statute confines the award of compensation to these rules and principles and the statute does not make provision for compensation beyond that which would be available in an action in Tort. Thus where as frequently occurs a Hepatitis C sufferer is compensated for the cost of a carer this is on the basis of a personal loss of the Hepatitis C sufferer based on a legal duty to pay the carer. In this case what is claimed is a loss which is solely that of the carer and goes quite beyond the legal duty cast on the Hepatitis C sufferer i.e. E. F. to pay for. In other words E. F. would be entitled to recover the cost of a carer or to be compensated for what she was obliged to pay in order to prevent the threatened loss. She would not be entitled to recover the cost of paying somebody on the basis that they had ambitions to a much more lucrative career which they then abandoned to provide care for a Hepatitis C sufferer.
20. Mr. Keane in reply submitted that the concept of “care” was not to be limited to “nursing care” and he referred to the Oxford English Dictionary to show that the word “care” was not there limited to a sense of looking after the body.
21. He submitted that the Respondents confused the concept of “direct result” with “likely result”. He acknowledged that if the Appellant had given up a career as a carpenter he would be in a better position to establish as a matter of probability that the loss had occurred, and he submitted the question of whether or not the Appellant would have become a carpenter and thereby suffered the loss contended for is not a question of whether that loss was “the direct result” but rather a question of whether or not that loss was a probable one or not. He submitted that the loss was not any less direct simply because he had not yet become a carpenter. The fact that he had not yet become a carpenter merely raised the issue of whether or not he would have become a carpenter.
22. Mr. Keane submitted that the 1977 Act did expand the remedies beyond the normal field of Tort. Section 4(1)(d) itself is an addition to the scope of remedy available in an action in Tort in that it permits a claim to be made by someone other than the primary sufferer or victim, hence Section 4(1)(d) does expand the basis for assessment of compensation beyond the normal common law assessment.
23. Mr. Keane submitted that the concept of “care” in the Act was not limited to the domestic scene and was wide enough to encompass the Appellant’s claim.
DECISION
24. The meaning or interpretation of Section 4(1)(d) of the Act of 1997 appears to me to be determined by six elements, five within the wording of the sub-section itself and one being the existence of the sub-section.
25. Taking the last mentioned first, namely the existence of the section, I am driven to the conclusion that the enactment of this sub-section has the effect of expanding the assessment of damages so far as claims under the Act are concerned so as to include claims from those who are not the primary sufferers of Hepatitis C. In doing this the legislature consciously included in the Act a departure from the normal basis of assessment of damages in the Law of Tort, where only the direct victim of the tortious act can sue, save of course, for the well known exceptions of cases of nervous shock and claims for loss of consortium and servitium. Whilst the basis of assessment of damages in respect of claims made under the provisions of the Act is, in accordance with Section (5)(1), to be on the same basis as an award of damages in the High Court, that normal basis of assessment, by reference to the principles which govern the measure of damages in the Law of Tort and any relevant statutory provisions, is added to, to the extent that is provided for in Section 4(1)(d), thus enabling a claim to be made by someone who was not themselves a sufferer from Hepatitis C but who is a carer for a victim of Hepatitis C.
26. This is an important departure and has the following significant consequences. The normal principles which govern the measure of damages in the Law of Tort would of course enable E. F. to recover damages in respect of losses she suffered in providing necessary care consequent upon her Hepatitis C or in providing herself with services which were the necessary consequences of her Hepatitis C. Thus she would have been entitled to recover the cost of normal nursing and domestic care as was necessary depending upon her condition and she would also be entitled to recover the cost of such services as were necessary in order to enable her to keep her business going. Therefore she would have been entitled to recover the cost of employing somebody to do the work which has been done by the Appellant, in the business since 1991. She would of course have had a duty to mitigate her loss. Thus she would only have been entitled to recover the cost of employing somebody at the normal rates applicable to that kind of work. She could not employ a person who was excessively qualified and in respect of whom she was required to pay a higher rate than would normally be paid for the kind of work involved. Similarly if she claimed in respect of the Appellant she could not expect to recover on the basis that the Appellant had ambitions to more lucrative employment but gave that up to work for E. F. The law would oblige E. F. to engage somebody else at the going rate for the job in question.
27. Looking at the same situation from the point of view of a claim by the Appellant under Section 4(1)(d) may produce a somewhat different result. If the Appellant’s case comes within the requirements of this sub-section as will be discussed shortly, the issue on mitigation, either may not arise at all in the same sense as it would on a claim by E. F. as discussed above, or the process of mitigation might produce a entirely different result. I will return to this topic when I have dealt with the five elements arising from the wording of the sub-section itself.
28. The first of these elements within the sub-section itself is the use of the phrase “any person”. The use of this phrase, leads in my view to the conclusion that no particular relationship to the person with Hepatitis C is envisaged. Thus “any person” could be a blood relation i.e. either a son, a daughter, a sibling, a husband, a wife or indeed without any blood or legal relationship.
29. The defining element as far as the range of personality who could be Claimants is the phrase “who is responsible”. This in my view is a very broad formulation. It does not confine responsibility to legal responsibility, nor indeed could it. In the case of E. F., if it were confined to legal responsibility only the husband of E. F. could claim. If the claim was to be confined to the legal content of his legal obligation then in fact no claim could arise. If E. F. was dependant on her husband he would have had a legal obligation to maintain her. But then of course he couldn’t claim in respect of that because he was legally obliged to so provide. In short therefore it is perfectly clear the phrase “responsible for” has nothing to do with legal responsibility.
30. In my view the phrase imports some degree of moral responsibility or moral duty. What the legislature intended was the normal range of moral duties and responsibilities that go with the broad range of familial relationships, including here the kind of moral duties and responsibilities that exist between human persons who have enjoyed established and committed relationships with each other. It is unnecessary for me to enumerate the entire list but suffice it to say, it is perfectly clear that a son providing care for his mother is manifestly included.
31. The next element in the sub-section which arises for consideration is the concept of “care”.
32. The issue is whether this is to be construed in a narrow sense as being confined to either the care of the body or to be confined to care provided within the domestic situation or does it have a broader scope such as including the provision of financial care or the provision of care in the form of assistance as in this case in the running of a business.
33. The Section itself, manifestly does not provide any limitation or indeed any guide to a limit on its breadth. It must be borne in mind that the central purpose of the Act is to provide compensation for those who are themselves afflicted with Hepatitis C and additionally under Section 4(1)(d) those who care for them. Thus in approaching the construction of the Act in my view a purposive approach should be adopted, as indeed was done by the Supreme Court in the case of M. O’C. -v- The Minister for Health judgment delivered the 9th day of July, 2001.
34. It would seem to me that it is correct to approach the matter from the point of view of ensuring that the scheme of compensation provided for by the Act reaches the real and provable losses sustained by carers as a direct result of providing that care. Thus what is clearly to be avoided are artificial distinctions as between one loss and another based on an excessively narrow construction of the word “care”.
35. In my opinion where someone who in the sense already discussed is responsible, provides necessary assistance to somebody who has Hepatitis C to enable that person to cope with, or surmount the effects of Hepatitis C on their physical or mental health, or on their domestic environment or in their vocational life, that necessary assistance can properly be regarded as “care” within the meaning of the Section. In my view a distinction which says that a concept of “care” can include domestic assistance but cannot include assistance necessary to preserve say a small family business is artificial and should not be countenanced. Thus I have come to the conclusion that the concept of “care” as used in the Section does include the kind of service provided by the Appellant for E. F. since 1991 to date. Mr. Carson raised the spectre of “floodgates” opening in the context of this interpretation of the subsection. I do not think this apprehension is well founded. It may of course be the case that more than one member of a family could make a claim under Section 4(1)(d). However each claim will necessarily be confined to the particular service provided and will of course depend on whether a loss or expense was suffered as a “direct result” of providing that care. Thus duplication of claims will not arise.
36. The next element in the Section is the requirement that the person who is providing care “has incurred financial loss” or expenses. Little need be said about that here. It seems to me to be primarily an issue of fact as to whether or not in any case such financial loss or expense has been incurred.
37. The next and final element arising out of the wording of the sub-section itself is the meaning to be ascribed to the phrase “direct result”. In the context of the dispute in this case the contest on the meaning of this phrase is as between whether it confines a loss to an actual loss or whether as is contended for by Mr. Keane it can include a potential or foreseeable loss.
38. It would appear to me that the phrase “direct result” simply means that the loss claimed has to have been caused by the provision of the care and not by anything else. Insofar as this case is concerned I agree with Mr. Keane that the distinction which is sought to be drawn by the Respondent, in reality, merely raises a question as to the foreseeability or probability of the loss arising rather than raising any question as to the direct causal link between the provision of care and the claimed loss.
39. I have therefore come to the conclusion that the claim which is made by the Appellant in respect of his anticipated loss because of his inability to take up work as a carpenter is a loss in respect of which he may make a claim under Section 4(1)(d). It is of course a claim which has to be based on evidence in the ordinary way.
40. I now return to consider the nature and scope of the claim made by the Appellant herein in the context of a claim made under Section 4 (1) (d), as distinct from a loss that might in another context have been claimed by E. F. in her proceedings.
41. As said earlier E. F. had she been claiming the cost of engaging assistance in order to replace her own labour in the business she would have been obliged to mitigate her loss and could not have made a claim on the basis of recovering at a higher rate based on the ambitions of the person she took on. In assessing the Appellant’s claim under Section 4 (1) (d) as indicated earlier, different considerations apply. It must first be considered whether or not the Appellant satisfies the requirements of the Section as discussed above. I am satisfied that he does, namely that he is a person who is responsible for the care of E. F., that the nature of the assistance which he provides or has provided comes within the definition of “care”, that subject to proof in the ordinary way he has pointed to a financial loss, and likewise subject to proof in the ordinary way that loss could be said to have arisen as a direct result of providing care, in the sense of it being caused solely by the provision of that care.
42. Next one must consider the question of mitigation in the context of the Appellant’s claim. In this context mitigation would necessarily have meant the abandonment of the provision of the care involved. It would not seem to have been possible for the Appellant to have pursued his career as a carpenter while at the same time running the cigarette business. Thus it could only be said that mitigation could arise if it were to be shown that some other scheme was reasonably practicable. Were it the case that the Appellant’s father was in good health I would be minded to conclude that he might be the appropriate person to be “responsible for” the care of E. F. Given that the Appellant’s father has been in poor health since 1985, and so it would appear unable to take on this role it would seem to me that either the Appellant or another one of the older members of the family would have to take it on. The question would inevitably arise as to whether or not it would be possible to have engaged the services of someone from outside the family on a commercial basis. Having regard to the size of the business and its relative weakness it would seem to me to have been highly unlikely that it would have been commercially possible to have engaged somebody from outside the family to take on this role. The question then arises whether or not for the purposes of mitigation the Appellant should have simply declined to take on this involvement and placed his mother in the position of allowing the business to collapse.
43. I would be inclined to the view that notwithstanding that the business was obviously not in a financial sense a roaring success, that nonetheless it was reasonable for E. F. to try to hang on to it as it did provide the family with a living, and the independence that went with that, and it held out the prospect in the long term of providing a livelihood for one of her children. Having regard to these reasonable objectives from the point of view of his family, in my view the Appellant is not to be faulted for having taken on the role in the business that he did from 1991 onwards. Given that he was in my view justified in doing that I cannot see any basis upon which he could have achieved a mitigation of the loss he claims.
44. That leaves open the question of proof of that loss. Hitherto in these proceedings, as I have already said, no evidence has been adduced apart from that on Affidavit, the matter proceeding by way of legal submission only.
45. It would seem to me therefore that the appropriate course is for the matter to be put back in for hearing so that evidence can be heard on the question of the losses claimed.
B. O’K. v The Minister for Health and Children
2017 10 CT
High Court
24 May 2019
unreported
[2019] IEHC 457
Mr. Justice Bernard J. Barton
May 24, 2019
In the Matter of an Appeal Pursuant to Section 5 (15) of the Hepatitis C Compensation Tribunal Acts 1997-2006 and In the Matter of a Decision of the Hepatitis C Compensation Tribunal to the Claimant, B. O’K. on the 27th November 2017 Reference 4120/08 and In the Matter of an Appeal by B. O’K.
JUDGMENT
1. This case comes before the Court by way of an appeal from a decision of the Tribunal given on the 27th November, 2017, whereby the Appellant was awarded €150,000 general compensation on a return application having developed Hepatocellular Carcinoma and Cirrhosis of the liver. These life-threatening conditions arose as a consequence of Hepatitis C infection contracted in 1977 through the administration of an infected batch of Anti-D immunoglobulin which the Appellant received following the birth of her daughter, O.
Background
2. The Appellant was born on the 14th August, 1948, and was married in 1973. Her husband died after a long illness in 1995. There were six children of the marriage, five daughters and one son. Four of the children have learning difficulties and attended a special school where they received remedial education. They remain partially dependant and continue to reside in the family home. When the Appellant reached fifteen years of age she left school and commenced a training course in nursing. She contracted pneumonia shortly afterwards and was hospitalised. On recovery she did not return to the course but instead took up full time employment in the vintner’s trade working in a series of public houses until she got married. Her intention was to return to the workforce after she had had her family.
Diagnosis for Hepatitis C
3. B. O’K. first tested positive for the Hepatitis C virus (HCV) by polymerase chain reaction test (PCR) in 2007. She brought an application to the Tribunal for compensation under the statutory scheme established by the Hepatitis C Compensation Tribunal Acts, 1997 to 2006 (the 1997 to 2006 Acts). Her application was determined on the 1st November, 2010. The Tribunal made an award of €275,000 which included travelling expenses and what was described as a “small amount” in respect of a claim for loss of opportunity. Given the home circumstances, where the children were highly dependent on their mother for their care, the Tribunal was not entirely satisfied that there was a reality to the Appellant’s stated attempts to return to the workforce in 2002.
4. At the Appellant’s election and having due regard to the medical evidence the Tribunal made the award provisional on certain terms. As required by the provisions of s. 5 subs. 7(a) of the 1997-2006 Acts, the award identified the serious consequences which would entitle the Appellant to return to the Tribunal for additional compensation, namely, Cirrhosis and/ or Hepatocellular Carcinoma. In the years that followed the Appellant’s liver disease continued to deteriorate and in 2016 she was informed that not only had her disease progressed to Cirrhosis but she had also developed Hepatocellular Carcinoma. Accordingly, she became entitled to return to the Tribunal on foot of the provisional award. The return application was heard and determined the 21st of December 2017; an award of €150.000 was made. The award was made provisional on the terms set out in the Tribunal’s decision.
Treatments; Delay; Failure to Mitigate Loss
5. Subsequent to diagnosis the Appellant had initially declined to undergo biopsies or the antiviral therapy treatments available at the time, however, as a result of the seriousness of her deteriorating condition and having regard to the advances in treatments for the virus in 2015, she decided to undergo directly acting antiviral (DAA) therapy in 2015. The treatment was a success and she cleared the virus. On the 2nd December, 2016 she underwent a thermal ablation of the liver tumour which had been idntified. A subsequent CT scan in February 2019 demonstrated a complete response to the treated lesion and this was confirmed on repeat scanning.
6. The Appellant’s failure post diagnosis to undergo a liver biopsy or avail of antiviral treatments notwithstanding medical advice thereby increasing the risk she would develop Cirrhosis and /or Hepatocellular Carcinoma was an issue raised by Respondent in respect of which there was considerable controversy between the parties; the significance of the issue was brought into sharp focus by the medical prognosis.
Medical Prognosis; Diminution in Life Expectancy
7. In June, 2017 the Appellant’s treating Consultant Hepatologist, Dr. Houlihan, prognosticated that notwithstanding the successful outcome of the ablation procedure it was likely further carcinomas of the liver would develop and that notwithstanding treatment these would ultimately claim her life, evidence which the Tribunal accepted. Dr. Houlihan’s initial opinion, comprised in his first medical report of June 2017, was that the success of the DAA therapy would likely have at least one positive impact on the Appellant’s health; he felt the absence of the virus would halt progression of the condition to decompensated cirrhosis. However, in reply to a question by Mr. Rogers, Senior Counsel for the Appellant, Dr Houlihan was more pessimistic. His evidence to the Tribunal was that the disease would probably progress to decompensated cirrhosis notwithstanding clearance of the virus.
8. Addressing the failure to seek and avail of treatment which had been medically advised, the Tribunal found that the Appellant had lived a decent and selfless life and was a devoted carer for others as a result of which she had felt unable to seek care for herself. Her prognosis is bleak. Dr. Houlihan’s evidence to the Court, as it had been to the Tribunal, was that the Appellant’s life expectancy has been considerably foreshortened, a prognosis with which Dr. Stewart, a Consultant Hepatologist retained on behalf of the Tribunal, concurred. In a report prepared for the Minister he estimated the Appellant’s survival at five years post ablation to be 50%; he estimated her average life expectancy to be five years, a foreshortening of approximately eight years.
The Issues
9. It is agreed between the parties that as a result of the deterioration in her liver disease to Cirrhosis and Hepatocellular Carcinoma the Appellant’s life expectancy is, as a matter of probability, foreshortened by seven to eight years. In issue is whether or not an award of €150,000 compensation for the development and consequences of these conditions, including the foreshortening of her life, is fair and reasonable compensation. On behalf of the Appellant, Mr. Rogers S.C. contended that the amount was wholly insufficient and that it was manifest from the award that the foreshortening of life in particular had not been taken into account by the Tribunal at all or if it had been, insufficient provision had been made.
10. The case advanced by Mr Callanan S.C on behalf of the Minister was that the award should not be disturbed as it represented fair and reasonable compensation for the conditions which had unfortunately developed. In this regard, the Court was entitled to take into account what, in essence, amounted to a failure on the part of the Appellant to mitigate her loss by her decision to decline medical advice and undergo treatment which could have significantly reduced the risk of her liver disease progressing to Cirrhosis and to the development of Hepatocellular Carcinoma.
11. Moreover, the Court had to take into account the premise on which the award of general compensation in 2010 had preceded, namely, that neither of the conditions in question would occur. Accordingly, to the extent that the award consisted of compensation for future pain and suffering such was assessed on the premise of an average life expectancy. In this regard I consider it pertinent to note here that the assumptions adopted for the calculation of the pecuniary loss claim contained in an actuarial report which had been prepared for the hearing before the Tribunal and was admitted in evidence on the appeal were based on normal mortality which in the case of the Appellant was assessed at 22.246 years.
Decision: Failure to Mitigate Loss; Contributory Negligence
12. I understood the submissions made on behalf of the Minister on the issue of failure to mitigate loss that this could in some way be divorced from the concept of contributory negligence. I cannot accept that submission. When the Tribunal or, the Court on appeal, is carrying out an assessment of compensation it is concerned with a claimant who has been admitted to the scheme established by the Hepatitis C and HIV Compensation Tribunal Acts 1997 to 2006 (the 1997 to 2006 Acts), and, subject to certain statutory modifications—-the ability to made a provisional award—-is required by s. 5 (1) to apply the same principles which apply to the assessment of damages in the law of tort and any relevant statutory provisions, which include the Civil Liability Act 1961, as amended ( the 1961 Act).
13. Failure to mitigate loss is expressly addressed in the provisions of s. 34 of the 1961 Act which is concerned with contributory negligence. Section 34(1) of the 1961 provides:
Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees fault of the plaintiff and defendant: provided that—
(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally;
The remaining provisions of sub. s (1) are not relevant for present purposes but Sub.s (2) provides
For the purpose of subsection (1) of this section —–
(a) …..
(b) a negligent or careless failure to mitigate damage shall be deemed to be contributory negligence in respect of the amount by which such damage exceeds the damage that would otherwise have occurred ; [emphasis added]
It is clear from this wording that in order to be deemed contributory negligence and thus to result in a reduction of damages the failure to mitigate loss must be a failure which is either careless or negligent. It follows that before any question of a reduction in damages arises the court is required to make a determination as to whether or not there was a failure to mitigate loss and if so whether such was negligent or careless; all are essential ingredients. The suggestion that a failure to mitigate loss may be taken into account by the tribunal or the court divorced from the concept of contributory negligence is misconceived in law.
14. Where there is a negligent or careless failure to mitigate loss, such as where an injured plaintiff refuses to undergo necessary medical treatment in circumstances where the refusal is unreasonable having regard to the nature of the treatment, the assessment of damages is approached on the basis that the treatment was carried out. See judgement of Murphy J. in Bohan v. Finn DPIJ, Trinity and Michaelmas terms 1994, pp 65-66 and for a discussion on the topic Law of Torts, 4th Ed. McMahon and Binchy, Ch. 20.31.
15. The real question which arises in this case is whether contributory negligence on the part of a claimant or a person for whom the claimant is legally responsible may be taken into account by the tribunal or by the court on appeal when carrying out an assessment. One of the attributes and a central feature of the scheme of compensation established by the 1997 to 2006 Acts is the absence of a requirement to prove breach of contract, negligence or breach of statutory duty in order to succeed in a claim rather the obligation on the Claimant is confined to establishing causation loss and damage.
16. In circumstances where the Oireachtas quite clearly decided to remove the necessity to address issues of liability it is hardly surprising that there is no express provision in the 1997 to 2006 Acts which allows for a reduction in compensation for contributory negligence of whatever kind not to mention a failure to mitigate loss. However, as I understand the submissions made on behalf of the Minister that is not the end of the matter, the suggestion being that the concept of contributory negligence is nevertheless available to the Minister in meeting a claim and that this is the legislative intention of the provisions of section 5(1) of the 1997 to 2006 Acts. It follows that as the relevant statutory provisions include the 1961 Act, compensation maybe reduced by reason of contributory negligence.
Conclusion
17. I am quite satisfied that where one of the fundamental features and attributes of the scheme is to remove questions of legal liability it would be wholly contrary to the policy underlying the scheme as well as the object for which it was established and the mischief which it seeks to redress, were s. 5 (1) to be construed as a back door through which the Minister or the Tribunal could introduce questions of legal liability to reduce awards to the victims of HCV or HIV infection.
18. Furthermore, to construe the section in the way suggested would offend against the approach to construction of the provision, contained as it is in a ‘redress statute’, mandated by the Supreme Court in CM v. Minister for Health [2017] IESC 76, and recently applied by this Court in AC v. Minister for Health [2019] IEHC 431. Moreover, it would be contrary to the manifest legislative intention apparent from the express provisions of the 1997 to 2006 Acts that claimants would not have to concern themselves with questions of legal liability or with the apportionment of fault which would necessarily arise from issues of contributory negligence.
19. For completeness, I should add that even if contributory negligence was a factor which the tribunal, or the court on appeal, could consider and where established could reduce the level of an award I am satisfied, in the circumstances of this case, that the Appellant’s refusal to undergo treatment in 2008 and 2012 could not properly be regarded as unreasonable. Declining the treatment then available, where the known side effects were truly awful, where she was terrified to subject herself to treatment, where there was no guarantee of a successful outcome or indeed even improvement, and where she felt her life had already been devastated at what she perceived to be the hands of the medical profession, the Appellant’s behaviour was entirely understandable.
20. As it is when the prospects for clearing the virus improved the Appellant agreed to undergo treatment. In that regard, I found the evidence of Jo Campion Clinical Psychologist to be compelling. She highlighted the trouble which Dr Houlihan had taken to explain what was involved in the new DAA treatment, why that treatment was necessary and the benefits which would be derived, at least in the short term. The Appellant presented quite a pathetic figure as she gave her evidence in Court but I noticed from the transcript of the hearing before the Tribunal that her presentation appears to have been much more robust. The Tribunal’s assessment is summed up at p. 33 of the transcript where the Chairman observed the Appellant’s own description in relation to the medical treatment issue “ I am afraid that my life would be taken over by hospitals and doctors.” This is a particularly significant finding since it is concerned with the factual situation as it was at the time before the DAA treatment was known or was available
Life Expectancy; Foreshortening; Consequences for Assessment
21. With regard to the question of life expectancy the Court was referred to the judgement of Irvine J. RC v. Minister for Health [2012] IEHC 204. At the time of the hearing in 2010 the Tribunal was aware from the actuarial evidence that the Appellant’s life expectancy was 22.246 years but there is no mention of this in the decision or of what part such played in the assessment of compensation for future loss. Mr Callanan made a forceful submission that the Court should approach this issue in the same way as it had been approached by Irvine J. in RC, supra, and proceed on the premise that the award made in 2010 for future pain and suffering assumed a normal life expectancy to 2032, particularly as there was nothing in the medical evidence at the time to suggest that her life was in anyway going to be foreshortened. In fact, Professor Norris made clear that in the absence of biopsies or scanning it was difficult to prognosticate as to whether the Appellant was going to develop any of the possible conditions associated with the infection; compensation had been assessed on the basis that the possible serious conditions would not occur.
22. Since the decision in RC the Court of Appeal has delivered a judgment in L’OS v. The Minister for Health [2017] IECA 7 in which the applicable legal principles on the approach to be taken by the court or the tribunal, as the case maybe, to the assessment of compensation are set out and were recently applied by this Court in BD v. Minister for Health [2019] IEHC 173. In my judgment, Mr Callanan SC is correct in the submission he made on this issue. It would be wholly wrong to proceed on the premise that life expectancy was never considered by the Tribunal when compensation was being assessed in 2010. Even though there was no apportionment of compensation between ‘to date’ and ‘for the future’ I think it highly likely that some element of the compensation in so far as it was concerned with future pain and suffering had to take account of the life expectancy as it then was. It follows that in carrying out the assessment on this application allowance must be made for this fact if double recovery for any element of loss is to be avoided.
Conclusion
23. In applying the principles set out in L’OS the Appellant is entitled to be compensated in full for the development of Cirrhosis and Hepatocellular Carcinoma; the compensation awarded in 2010 had to be assessed on the premise that those conditions would not occur. It follows that as the foreshortening of life is a consequence of the development of those conditions the compensation to be assessed on this application must make provision for that fact and in that regard I accept Mr. Rodgers’ submissions. The Court is not concerned with whether or not the Tribunal made proper provision for the foreshortening of life expectancy; the appeal proceeds de novo on this issue as it does on the appeal from the decision of the Tribunal on any issue
24. I am satisfied that this is not a case to which the so called ‘cap’ on general compensation applies nevertheless this question is not of any great significance in the circumstances. Suffice it to say that having regard to the totality of the injuries sustained, the compensation previously awarded for pain and suffering to date and into the future in respect of injuries which had or which were likely to arise at the time I consider that on all the evidence adduced a fair and reasonable sum to compensate the Appellant commensurate with the development of Cirrhosis and Hepatocellular Carcinoma and for the consequences of these conditions, including the foreshortening of her life expectancy, is €225.000, from which I consider €25.000 to be a reasonable sum which falls to be deducted in order to take account of the average life expectancy element comprised in the 2010 award, leaving a final net amount for general compensation on this application in the sum of €200,000. And the Court will so order. I will discuss with Counsel the terms and final form of the order to be made.