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Riley v. Bus Eireann [2002] IEHC 41 (13 February 2002)

THE HIGH COURT

2001 13473P

CARL RILEY

PLAINTIFF

AND

BUS EIREANN

DEFENDANTS

Judgment delivered by Mr. Justice Barr on the 13th day of February, 2002

This case is an assessment of damages only. After a lengthy hearing it ultimately emerged that there is no real controversy between the parties as to the facts, but how damages based thereon should be assessed is in issue. The following facts have been established in evidence:-

1. The plaintiff is a 42 year old married man with a grown up family. He resides with his wife and one child in a village 10 miles north of Tuam and 30 miles from the city of Galway where he worked for the defendant as a bus driver from 1993 until compulsory retirement in 2000. He left school after primary education and has had an excellent work record since then. It included several years in the army where he rose to the rank of corporal and was selected for service in the Lebanon. However, for most of his latter working life he has been employed as a bus driver, first in Dublin with C.I.E. as it then was and subsequently with Bus Eireann in Galway, primarily on city routes but also including long distance runs to Dublin and elsewhere occasionally.

2. The defendant company has been expanding in recent years and has taken on a substantial number of new drivers most of whom are in middle age. Drivers in good health remain in employment until age 65.

3. Expansion of the defendant's services gave rise to a restructuring of driver employment which came into operation in July, 2000. It has brought about a reduction in overtime. Nonetheless, bus driving for the defendant is a well paid occupation under the new regime. It is accepted that a driver with the plaintiff's seniority who wishes to have a rota including Sunday driving (as the plaintiff would have done) would have weekly earnings of £518.00 per week at that time net of tax.

4. On 16th April, 1997 the plaintiff while driving his single-decker city bus in Eyre Square, Galway was stationery in traffic when another bus, the brakes of which appear to have failed, ran into the back of his vehicle. He believes that the impact was such that his bus was prematurely written off. It was also forced forward for a significant distance.

5. The plaintiff suffered what has transpired to be a major back injury with important permanent consequences for him, including the loss of his career as a bus-driver.

6. The plaintiff had no previous back injuries or trouble in that area. Immediately after the accident his only symptom was numbness in his left arm. He went to hospital but after several hours waiting for attention in the O. P. W. he went home. Next day he had pain in his shoulders and across his neck. His arm was still numb and he also had pain in his low back. He consulted his G. P., Dr. Cunningham, and was given analgesics. He returned to his doctor a few days later with similar symptoms and also a constant headache which had developed in the meantime. The plaintiff was anxious to return to work. He needed his wages to pay instalments on a new motor car he had purchased only a few days before the accident and also to meet continuing mortgage instalments on his home. It is not in dispute that in the ensuing years the plaintiff has in fact suffered serious pain and discomfort which has been aggravated by bus driving in consequence of which there have been many periods of total disablement when exacerbation of pain compelled the plaintiff to stop work. It is generally accepted that he has always made great efforts to get back to his job as quickly as possible. Everyone agrees that he is a non-complaining trier. His efforts to combat disablement have been courageous and much to his credit. He has done his best to remain at work as a bus driver, but in the end repeated aggravation of severe pain has defeated him and has brought about his compulsory retirement from Bus Eireann in January, 2000 on the direction of the defendant's chief medical officer, Dr. D'Arcy, on the ground of continuing unfitness for such employment and the absence of alternative non-driving work with the defendant.

7. Following the accident the plaintiff first returned to work after four days but with continuing symptoms as already described. Severe pain compelled him to stop work after three days but he returned again a week later. He soldiered on for most of the following two months. During the remainder of 1997 he lost about twenty eight or thirty days when pain became too severe to handle. He found that pain was getting worse between the shoulder blades. He embarked on a course of physio-therapy but after five or six sessions it was terminated as it was causing too much pain and little relief. On 18th December, 1997 Dr. Cunningham sent the plaintiff to Mr. John Mangan, orthopaedic surgeon. He has continued treating him since then. A subsequent C. T. scan revealed exacerbation by the accident of a probable pre-existing arthritic condition of the thoracic spine which was previously dormant. That condition having been activated, the pain it causes will continue permanently. The plaintiff's low-back pain resolved eventually. The end result is that the plaintiff continues to suffer pain across the shoulders and in the left arm. He requires analgesics on a daily basis. In 1998 he had a number of periods on and off work. In September, 1998 the situation was getting worse. Mr. Mangan referred the plaintiff to Dr. David O'Flaherty, a specialist anaesthetist and pain management consultant at Portiuncula Hospital. In June, 1999 the plaintiff received an epidural spinal injection. It brought about substantial relief for about three months after which the pain returned when the effect of the injection wore off and he was compelled to stop work again. Subsequently, he received a second epidural injection which had little beneficial effect.

8. In October, 1999 Dr. D'Arcy had come to the conclusion that the plaintiff was not fit to continue on the defendant's staff as a bus driver. He again tried to find alternative non-driving work for him in the company but without success. In the end the plaintiff was compulsorily retired on 31st January, 2000.

9. The extent of pain across the plaintiff's shoulders and down the left arm became so severe that Dr. O'Flaherty resorted to a heavy drugs patch course of treatment in January, 2001 which is primarily intended for terminally ill patients suffering from painful cancer or other such condition. In their circumstances the probability is that they would require such alleviation of severe pain in the short or medium term only. That treatment did bring relief to the plaintiff but eventually it ceased to help him as he gradually built up a tolerance of the drug (morphine) involved. At that stage the treatment was discontinued in consequence of which the plaintiff suffered withdrawal symptoms. This entailed weaning him off the patch drug over a period of months through the substitution of another lesser drug. He has now reverted to non-addictive analgesics. Dr. O'Flaherty is satisfied that the plaintiff has chronic pain syndrome arising out of his accident. All doctors on both sides have expressed opinions that the plaintiff is not and never will be fit to continue his permanent employment as a bus driver.

10. The following medical opinions have been expressed in reports and in the case of Mr. Mangan, Dr. Cunningham and Dr. O'Flaherty in evidence also. Mr. McHugh, the surgeon who advised the defendant, is now deceased.

(a) Dr. O'Flaherty described the plaintiffs condition in March, 2000 as follows:-

"Mr. John Mangan, Consultant Orthopaedic Surgeon, ... referred Mr. Riley to the Pain Clinic in Portiuncula Hospital in September, 1998. His main complaints at that time were neck and back pain. His pains have continued since his accident in April, 1997. The pains have not significantly improved despite various therapies including epidural injections, non-steriodal anti-inflammatories, anti-epileptic drugs with analgesic properties and the use of transquatanoues electrical nerve stimulation. He was scheduled for a repeat epidural injection in the near future. Mr. Riley's pain is mainly located in his upper mid-thoracic spine. Mr. Riley describes his neck and back pain as a throbbing, shooting, sharp, stabbing, hot, burning and aching according to the McGill Pain Questionnaire. He assigns it a score of 8 on a visual analogue pain scale where 0 represents no pain and 10 the worst possible pain imaginable.

DISABILITY LEVEL.

In an effort to assess the disability associated with Mr. Riley's pain complaints I asked him to complete an Owestry Disability Questionnaire. He states that the pain was moderate on the day of examination (07/03/00). With respect to his personal care and hygiene he states that he can look after himself normally but it causes him some extra pain. Pain prevents him from lifting heavy weights up off the floor but he can manage if they are conveniently placed for instance on a table. Pain does not prevent him from walking any distance but prevents him from sitting more than half an hour. Pain prevents him from standing more than one hour and because of his pain he gets less than four continuous hours of sleep at night. He states that his sex life is nearly absent because of pain. Pain has restricted his social life in that he does not go out as often as prior to his accident in 1997. Pain restricts him from travelling journeys of less than one hour.

Mr. Riley would be assigned to a Steinbrocker Functional Classification Class 2 in that his functional capacity is adequate to conduct normal activities despite this handicap of discomfort or limited mobility of one or more joints.

In his examination held on 30th December, 2001 Dr. O'Flaherty made the following findings:-

Lumbo Sacral Spine.

Flexion and extension decreased by 25%. Lateral flexion normal. Very tender over mid and upper Thoracic Vertebral Spine.

Cervical Spine.

Flexion decreased by 50%.

Lateral Rotation to the left decreased by 50%, to the right by 25%. Extension decreased by 25%. The doctors opinion at that time was:-

"Mr. Riley continues to complain of neck and back pain despite therapy and it is now unlikely that his pain symptoms will resolve."

In the course of his report dated 27th March, 2000 Mr. Mangan stated as follows:-

"INVESTIGATIONS:

An M. R. I. scan of the cervical and thoracic regions of the spine was performed at the Mater Private Hospital on 31st March, 1999 and no gross abnormalities were apparent.

A C. T. scan of the thoracic spine was performed at Portiuncula Hospital in January, 1999 and apparently shows degenerative changes at the facet joints at multiple levels. I have not seen the C. T. scan and a report should be obtained from the radiologist who performed it ...

OPINION:

Mr. Riley complains of being injured in a road traffic accident in April, 1997. I think he probably sustained soft tissue injuries to the cervical and thoracic regions of the spine and the lumbar area. There has been no subjective or objective improvement since Mr. Riley was first seen by me. He has now been retired from his work by Bus Eireann on medical grounds. I think he will continue to experience pain from his spine for the future and pain will vary in severity from time to time. He will have to be careful about his spine in the long term. I think his prospects of returning to full-time gainful employment are poor."

A similar opinion was expressed by Mr. Mangan in his report based on an examination carried out on 7th January, 2002:-

"Mr. Riley complains of being injured in a road traffic accident in April, 1997. I think he probably sustained soft tissue injuries to the cervical and thoracic regions of the spine and also the lumbar area. I think he will continue to experience spinal pain for the future and pain will vary from time to time. He will have to adhere to a regime of care and exercises for his spine. I think his prospects of returning to full time gainful employment are poor."

Dr. D'Arcy wrote to Dr. Cunningham on 30th September, 1998 as follows:-

"I saw your patient in the Medical Department today and it is hard to consider him being fit in the future as a public service vehicle driver. I am endeavouring to see can management do anything for this man but the chances of alternative employment in a non-driving grade at the moment are practically zero. He is aware that I am making this effort but also is rather pessimistic regarding the outcome."

The late Mr. McHugh, the defendants surgeon, who commented in an earlier report that "this is an honest man" then expressed the following opinion in his final report dated 15th March, 2000:-

"This man had x-rays and a scan. The x-rays show as I note in the previous report osteophytes at C4-5 and this is causing the trouble with the tendency to lock in his left shoulder and the symptoms in the back of his neck. There is arthritis associated with the joint so that he is likely to continue having problems with it. He also had x-rays and scan of his thoracic spine which showed that he has multiple osteoarthritic changes in the joints of the spine, the facets, and this is a condition that tends to come with age, but it can be initiated by trauma or accentuated, as in his case, by it and it certainly was an aggravating factor if not a causative factor. However, the important thing is he is likely to continue to have symptoms. The epidural injection he had helped a bit but not as much as one would expect. He is having a further scan and probably after that it will be decided whether to continue with the epidural injections or whether any other treatment is indicated. As regards working it wouldn't be wise for him to be driving, and he has been retired and this is fair enough. He will be limited in the work he could do, he couldn't do heavy work, and the limitation of his lumbar spine would be a disability and it would have to be very light work that he would get. He is likely to continue to have symptoms."

Mr. P. V. Pasad, orthopaedic surgeon, who also examined the plaintiff for the defendant stated in his report dated the 24th September, 2001 that the plaintiff complained to him of the following:-

"1. Severe pain between the shoulder blades, radiating up into the neck and the base of the skull.

2. Abnormal sensation in both lower limbs, mainly at night.

3. Pain and numbness in the left arm intermittently if he keeps it on a steering wheel."

The surgeon expressed the following opinion and prognosis:-

"It is over four years since the accident and Mr. Riley continues to experience significant pain and discomfort in his upper body, mainly between his shoulder blades and shoulders and neck. This appears to be interfering with his ability to manoeuvre a large steering wheel. Hence, in my opinion, he will not be in a position to return to his previous occupation. In view of the duration of the symptoms, I do not expect him to respond 100% to the treatment and he will continue to experience long term minor discomfort permanently. He will not also be in a position to take up any job that involves manual-physical work. He is presently undergoing treatment for pain relief and may benefit to some extent in alleviating his symptoms. He is at risk of developing relapses and may require pain relief treatment as and when such relapses occur for the rest of his life."

11. Notwithstanding the combined opinions of their own doctors i.e. Dr. D'Arcy, Mr. McHugh and Mr. Pasad, that the plaintiff is unfit to continue in employment as a bus driver, the defendants have rejected their advice and have preferred instead that of a physiotherapist, Ms. Deirdre Cahill. She qualified in 1994, spent six years practising in the State of Florida, primarily in occupational work. She became involved in the activities of an organisation in that State which specialises in assessing work capacity after injury and the encouragement of people back to pre-accident work after trauma. Since her return to Ireland she has set up a company which offers similar services here. Over a period of two days she had sessions with the plaintiff for a total of five hours. The purpose of her examination was to ascertain whether the plaintiff could perform the physical movements necessary for the purpose of driving a bus. She had no information from anyone in Bus Eireann as to what is involved in physical terms in driving such a vehicle and she relied exclusively on the plaintiff's assessment in that regard. She also had no knowledge of the plaintiff's work history as a driver from the date of accident in April, 1997, nor had she the benefit of the treating doctors medical reports. She was aware and accepted that the plaintiff was in pain when being assessed by her. She also accepted that the plaintiff was an honest person who did his best to co-operate with her. Ms. Cahill was not aware that the plaintiff could not hold the steering wheel of a bus in both hands without exacerbating pain in his left arm (a situation which arises for him when driving a motor car also) and which causes him to release his left hand from the wheel.

Ms. Cahill's assessment was simplistic and did not have the benefit of the foregoing crucial background information. As already stated, it was based on her conclusion that the plaintiff could perform, albeit with pain in some instances, all of what she perceived to be physical aspects of his job as a bus driver. On that basis she expressed the opinion that he was fit to take up again permanent employment of that nature. She did not regard it as part of her function to assess the effect of pain being suffered by the plaintiff or to take into account his past work history in almost five years since the accident. Eventually, in the course of her evidence she conceded that these factors should be taken into account and she joined the apparently unanimous medical opinions on both sides that the plaintiff should not return to his pre-accident work and that he is unfit to be a bus-driver or to engage in heavy manual work.

12. It then transpired that Ms. Cahill's assessment with all its obvious faults had effected a "Road to Damascus" volte face in the opinion of Mr. Pasad as expressed in his report to which I have referred. Remarkably, he contended in evidence that even though Ms. Cahill had resiled from her opinion, he regarded the physical tests carried out by her as indicating that, contrary to his earlier opinion, the plaintiff is in fact fit to resume his career as a bus driver. He persisted in that extraordinary view notwithstanding that he could offer no tenable explanation for his apparent belief that a radical improvement in the plaintiff's work record could be expected by comparison with his work history, including his efforts as a computer student, for circa 5 years since the accident.

I reject Mr. Pasad's testamentary volte face. I also reject Ms. Cahill's assessment of the plaintiff's working capacity. I have no hesitation whatever in accepting the combined opinions of Mr. Mangan, Dr. O'Flaherty, Dr. Cunningham, Dr. D'Arcy and the late Mr. McHugh that the plaintiff is no longer fit for permanent employment as a bus driver or any job involving heavy manual work. The medical evidence also establishes that the plaintiff will always have difficulty in sitting for lengthy periods and this is likely to be a problem for him in connection with employment in the I. T. industry for which he is presently in training.

13. The plaintiff with commendable dedication has set about establishing himself in a new working career in computers. He has completed a second stage N.T.D.I. (now Fás) course in which he achieved first place. He then moved on to a third phase one year course in computer technology which he has carried out at home under occasional professional supervision. The course is structured on the basis that the student will devote six hours per day to a programme of work on his computer. The plaintiff has found that he is unable to sit at his screen for that length of time each day because it causes too much pain across his shoulders and down his left arm. However, on the plus side his skills are such that he can achieve the intended results in three or four hours per day and he can manage that length of time at the computer. The course is almost completed and he is about to sit examinations next month. He has already obtained first place in one of the modules. If he passes the exam, which seems highly likely, he will then have eleven weeks work experience. The plaintiff is keen on computer technology and would like to move into third level training in I. T. at Galway R. T. C. There is a two year full-time Certificate course followed by a one year Diploma course at the R. T. C. Ms. Patricia Coughlan, vocational rehabilitation consultant, gave evidence that although the plaintiff has shown remarkable computer aptitude, at the R. T. C. the courses are at a much higher level than he has encountered so far and, having the benefit of primary education only, he may not be able to make the transition between basic computer learning and in depth computer study which includes related topics such as statistics etc. Only experience will establish whether the plaintiff will be successful in making the transition to third level training and education. However, there is a preliminary course at the R. T. C. for one year which is designed with people like the plaintiff in mind who have late I. T. vocations and minimal educational backgrounds. It provides a bridge between basic computer courses and serious Third Level courses. It is thought that the plaintiff would be able to obtain a place in such a course which is an important preliminary step in his particular circumstances. The end result is that he faces, at best, a period of four years study at Galway R. T. C. at age 42 years which may transpire to be more than he can handle despite his undoubted determination to succeed. Having regard to his computer performance up to now, it seems clear that it is in his best interest to embark on the proposed academic career which, if successful, is likely to open the way to worthwhile employment and job satisfaction in an area which he enjoys.

However, in assessing general damages it is proper to take into account the significant risk that the plaintiff will not be able to manage Third Level computer education and in the end will have to seek one of the lesser jobs at modest wages referred to by Ms. Coughlan in evidence. The plaintiff's situation is analogous to that which arises where the relevant spectrum of a claimant's working capacity has been significantly reduced by personal injury. As such a person is entitled to damages in that regard, so too is the plaintiff and that point is accepted by Mr. Robins for the defendants.

Another factor referred to by Ms. Coughlan which it is proper to bear in mind in assessment of damages is that at best the plaintiff will be competing with young, skilled personnel in the I. T. labour market. Furthermore, his chronic pain syndrome militates against him in terms of his capacity to work a full day and that may significantly reduce his employability.

14. As to future earnings as a computer specialist; Ms. Coughlan estimates that at the end of his educational course of 4 years the plaintiff might reasonably expect to earn between £12,000.00 and £14,000.00 gross per annum calculated in old money. This assessment seems to be based on existing wage levels. It is probably more realistic to anticipate net earnings of £16,000.00 in September, 2006 by comparison with a probable £26,000.00 net per annum then as a bus driver i.e. a differential of £10,000.00 net per annum in old money.

DAMAGES.

Amounts for loss of earnings are not in dispute and are based on probable average net earnings as a bus driver whose roster includes Sunday working. As the plaintiff would have been entitled to take that course to suit his particular domestic arrangements as his wife's job includes Sunday working. Appropriate deductions have been taken into account in the agreed figures furnished to me by the actuary.

I assess damages in old money as follows:-

Agreed special damages.......................................... £1,821.00

Net loss of earnings up to 1st September, 2002...... £77,752.00

Four years net loss of earnings during educational

training from 1st September, 2002............................. £89,256.00

Net loss of earning capacity as between bus and likely computer earnings up to age 65 taking into

account Reddy v Bates............................................ £120,000.00

Compensation for risk factor (i.e. risk of failure) entailed in

Third Level education ............................................ £50,000.00.

Agreed net loss of pension entitlement................... £24,616.00.

General Damages for

(i) pain, suffering and disablement to date.................. £50,000.00

(ii) pain, suffering and disablement in the future.......... £100,000.00

Total ....................................................................... £513,445.00

= €651,940.00

mk(CarlRiley)JB