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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Heffernan v Byrne & Anor [1989] IEHC 47 (11 May 1989) URL: http://www.bailii.org/ie/cases/IEHC/1988/1989_IEHC_47.html Cite as: [1989] IEHC 47

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THE HIGH COURT

1986 No. 11196P

BETWEEN

THOMAS HEFFERNAN

PLAINTIFF

AND

KATHLEEN BYRNE AND JOHN BYRNE

DEFENDANTS

Judgment delivered by O'Hanlon J. the 11th day of May 1989.

The Plaintiff is a married man, aged 50, with four children whose ages range from 28 down to 11. He lives at Kildoon, Nurney, Co. Kildare. He left school when he was about 14 years of age, and at first took up work with a relative as a draper's assistant. He joined the Army as a private soldier at age 17 or thereabouts, and made his way up through the non-commissioned ranks to Company Sergeant. He spent 23 years in all in the Army, retiring in 1978, on pension. For the last 13 years of his service in the Army he was attached to a Driving Instruction School, and was in charge of the school for some years.

On leaving the Army he set up in business as a private investigator, involving himself in Court work, matrimonial cases, and industrial security problems. The business took some time to build up, but his second year produced a net profit before tax for the year ending 31.3.1984 of £4,050, and for the following year ending 31.3.1985, £11,859. He was then involved in a road traffic accident on the 6th November, 1985, which incapacitated him, and his figure for net profit before tax for the year ending 31.3.1986 declined to £6,530.

On the date already mentioned, 6th November, 1985, while driving along the road leading from the Curragh to Suncroft, Co. Kildare, the Plaintiff was involved in a collision with a motor vehicle owned by the first-named Defendant and then being driven by the second- named Defendant, as a result of which the Plaintiff's car was damaged beyond repair and the Plaintiff suffered severe injuries.

Liability for the accident was at first denied, but was later admitted during the course of the hearing subject only to a reservation as to an allegation of contributory negligence against the Plaintiff based on a suggestion that he was not wearing a seat belt at the time. As the evidence does not in any way substantiate this suggestion the case has ultimately resolved itself into an assessment of the damages which should be awarded to the Plaintiff for the injuries, loss and damage caused to him by the negligence of the Defendants.

The injuries inflicted on the Plaintiff did not at first seem to be of great severity and he was able to drive home. He was shocked and had pain in the neck and lower back areas. He awoke during the night to find that he had no feeling in his right arm; his lower back was very stiff and his right leg was numb. He contacted his family doctor on the following day and was sent to Naas Hospital for treatment. He was not detained as an in-patient but was given physiotherapy and he continued for a time to attend to his work as private investigator and to attend court for the purpose of giving evidence.

As his symptoms continued to affect him he was referred to a surgeon in Naas, and later was taken into Clane Hospital where a myelogram was performed. He was kept in hospital from the 9th July, 1986, to the 5th August, 1986, for conservative treatment involving total immobilization at first, followed by physiotherapy and this produced some improvement. As he regressed, he was taken in again in October 1986 for a further period of 18 days and an epidural injection was administered. He obtained some relief but his painful back-condition continued to trouble him and he was eventually referred to an orthopedic surgeon, Mr. Fogarty, in the month of November, 1987, and after further investigative procedures an operation was performed by him on the 20th August, 1988, which involved excising the disc at L4/5 and performing a bone graft to bring about fusion at the point where the operation had been performed.

The operative treatment has brought about a significant improvement in the Plaintiff's condition, but he is still subject to a certain amount of low-back pain and the bone graft has not as yet consolidated. He has also been troubled by pain in the cervical spine area since the time of the accident but does not appear to have undergone any special treatment for the relief of this cause of complaint. He also continues to complain of some numbness in the right hand, and pain in both arms and radiating down one of his legs. He continues to wear a spinal brace for part of the day, but on the advice of his doctor is endeavouring to dispense with it as much as possible. He could only walk with the aid of a stick until the operation was performed, but no longer needs it.

Asked about the Plaintiff's capacity for work for the future, Mr. Fogarty said that he would have difficulty with heavy, labouring work; that bending or lifting would cause backache; that he would have a lot of problems from driving, especially from long journeys by car, which might exacerbate his backache. He would not advise him to do anything that hurt his back. He could do light, sedentary work, not involving the lifting of heavy weights. He thought it unlikely that he would need any further surgery.

In addition to the physical injuries suffered by the Plaintiff, he also suffered acute depression for a period since the accident and was treated for this by Dr. Wilson, formerly the RMS at St. Dympna's Psychiatric Hospital, Carlow. It did not require treatment as an in-patient, but the Plaintiff was put on anti-depressants, and this form of medication has been continued since he was first referred to Dr. Wilson on the 8th October, 1987, (two years after the accident). He appears to have responded well to the treatment, particularly since gaining relief from severe back-pain after the operation performed by Mr. Fogarty in August, 1988, but Dr. Wilson considered that he would have to continue taking anti-depressants for a further period into the future - hopefully for no more than a further 12 - 18 months. Dr. Wilson described the Plaintiff's condition as "mixed endogenous and reactive depression" that is to say, coming partly from within the patient himself, and partly from the effects of the accident and the painful injuries he had sustained.

The Plaintiff had had back trouble at an earlier stage in his career but he put it at about 15 years prior to the accident and said it had cleared up and given him no further trouble. The X-Rays taken after the accident showed up some degenerative changes which had taken place at L3/4, and L4/5, probably preceding the accident, but regarded as asymptomatic until the disc injury was sustained in the L4/5 region.

He had also a troublesome bowel condition in 1984, which was investigated by Mr. Brian Hargan, Surgeon. The Plaintiff was very worried in case he might be developing cancer, but Mr. Hargan was able to reassure him that this was not so. The conclusion was that he was suffering from irritable bowel syndrome, probably caused by stress related to anxiety and long hours of work. Mr. Hargan found him very anxious and worried. As it was a condition which was liable to recur over many years, and which was not amenable at that stage to surgical treatment, Mr. Hargan referred the case back for further consideration to a Consultant Physician, but there was no further medical evidence given in relation to this particular problem.

The Plaintiff's claim may be summarised as follows at this stage. He claims general damages for pain and suffering from the 6th November, 1985, down to the present - that is a period of three years and a half during which he has had pain in the lower back, also in the cervical spine; pain in the arms and radiating down one leg; three periods of hospitalisation, including one for a serious back operation; the onset of depression which was acute for a relatively short period and has improved markedly since the operation was performed; the winding down of his business, which closed down in October, 1986, and which closure the Plaintiff attributes to the injuries suffered by him in the accident. Since the business came to an end the Plaintiff has embarked on several small business enterprises, none of which flourished, and he has been depending on his Army pension and borrowed money to provide for his family to a very large extent over the last few years.

He claims general damages for the future for the continuing pain and suffering flowing from the back injury, in-the upper as well as the lower back, and the continuing depressive effects of his injuries and his inability to lead a normal life as he did before the accident. The Plaintiff claims that but for the accident he could reasonably have expected his business to progress as it had been doing over the first two years of its operation, and to yield, eventually, a net income before tax in the region of £20,000/£25,000; that he has been at the loss of much, if not all, of the potential income since the date of the accident, and has lost a lot of money through his inability to save turf, which, prior to the accident, he obtained from his own turf bank and which provided for much of the heating and water heating needs of the household; that he has lost money by being unable to service the family cars, or engage in vegetable growing; and that he has incurred travel expenses measured at £1,295. The agreed figure for medical expenses to date is £16,252 and for car damage, £586.

For the future, he claims that he has lost his business and has become an "odd lot" on the labour market, with no real prospect of getting employment. The actuarial figure for the loss of £1 per week to age 65 is £550, and as well as loss of earnings for the future he is claiming for continuing inability to save turf, service cars or work in his garden.

I am not convinced, on the evidence, that the Plaintiff's business as private investigator would, in all probability, have continued to develop and to produce the kind of income suggested by the Plaintiff, but for the injuries sustained by him in the accident. The Plaintiff had voluntarily withdrawn from full commitment to the business during the months leading up to the accident, in order to devote much of his time to building a new home; he had run into troublesome medical problems in 1984/85 which were regarded as being stress-related, and the final resolution of which has not been determined by medical evidence in the case. His partner or assistant in the business found the volume of business dropping off significantly as the year 1985 progressed. There was evidence that the Plaintiff, when suffering from his bowel complaint in the 1984/85 period, and being apprehensive that he might be suffering from cancer, without waiting to find out whether his fears had any basis in fact, proceeded to put the business up for sale with a view to terminating his connection with it altogether.

There is the further problem associated with the claim for loss of earnings into the future, that it is very difficult to establish a differential on which an actuarial computation may legitimately be based. The Plaintiff is certainly incapacitated for heavy work, and for work which would throw an undue strain on his back, but he cannot be regarded, in my opinion, as a person who is unlikely to be able to earn his living in some capacity for the remainder of his life.

He has had a number of years experience in the field of private investigation, and has many contacts with clients for whom he worked satisfactorily in the past. He had many years experience as a driving instructor, and ran an Army driving school in an administrative capacity during the latter years of his service in the armed forces.

I think that he certainly faces greater problems in the future than he did prior to the accident, in carving out a career for himself, but I consider that if he had a certain amount of capital available to him it is quite likely that he would be able to set up in business of some kind which would yield him a reasonable livelihood. When contemplating the sale of his business prior to the accident he had in mind to go to live in England and participate in an off-licence business carried on by his sister-in-law.

It appears to me that the claim for loss of earnings for the future cannot be reasonably quantified on an actuarial basis, but it is clear to me that there is likely to be some loss under this heading and that the best way to minimize that loss is to include in the figure for general damages for the future a substantial sum in recognition of the continuing disability which will prejudice his ability to earn his living for the future. The Plaintiff would need a sum which would clear his debts to date and give him capital to work on to give him a new start in life.

Approaching the claim on this basis, I assess damages in favour of the Plaintiff as follows:­

I propose to give judgment for the Plaintiff for the sum of £180,588.

R.J. O'Hanlon 11th May 1989.

DOC. 0042J JL