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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Rogers v. Motor Insurers Bureau of Ireland [2003] IEHC 142 (5 December 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/142.html Cite as: [2003] IEHC 142 |
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Neutral Citation No: [2003] IEHC 142
THE HIGH COURT
1998 No. 11454 P
BETWEEN/
PATRICK ROGERS
PLAINTIFF
v.
THE MOTOR INSURERS BUREAU OF IRELAND
DEFENDANT
Judgment of Mr. Justice Herbert delivered the 5th day of December, 2003.
The first witness to give evidence in this case was Mr. Joseph P. Osbourne, a Consulting Engineer who was called in evidence on behalf of the Plaintiff. He told the Court that he had examined the scene of the alleged accident on the 27th September, 2003 in the company of the Plaintiff. The alleged accident took place on the 27th May, 1996. Mr. Osbourne said that he had taken and had developed the photographs - six in number - then produced in evidence and had prepared the location map, also then produced in evidence. The public footpath, he said, appeared at this location to pass in front of the Maxol Service Station Forecourt and to all intent purposes, was indistinguishable from it. He told the Court that he had been in practice in the Dundalk area for the previous twenty years and was totally familiar with this area. He said that the physical features, as seen on the photographs and as represented on the map had not changed in any material way since May, 1996. He said that the plaintiff had pointed to a spot in the middle of the footpath, abreast of the short pillar on the south end of the flowerbed as his last recollected position on the 27th May, 1996.
The Plaintiff, Patrick Rogers, next gave evidence. He told the Court that he was born on the 4th November, 1945. In May, 1996 he was employed in the landscape and public gardens section of the Local Council for whom he had worked for the previous twenty years. This work involved the planting and maintenance of grass areas, trees, shrubs and flowerbeds. He said that he had been involved in the laying out and planting of the flowerbeds and shrubberies on the Newry Road in about 1990 and this included the flowerbed in front of the Maxol Service Station. He lived at No. 75 Dowdall's Hill some distance north of the Maxol Service Station and on the opposite side of the Newry Road. He said that walking to work, or to the Lisdoo Arms licensed premises which he generally frequented, he used the footpath on that side of the Newry Road. If he had been drinking in Harry Duffy's licensed premises he used the footpath on the Maxol Service Station side of the Newry Road.
On the 26th May, 1996, after his tea, he said he walked to the Lisdoo Arms licensed premises, arriving there at about 8.45 p.m. He remained there until 9.30 p.m. during which time he drank two pints of Guinness. He then met Ms. Rose Waters by prior arrangement and they went to Harry Duffy's bar where there was a party in progress. Ms. Waters left at about midnight. While they were together, he drank a further five pints of Guinness. After Ms. Waters left, he remained behind conversing with Mr. Duffy, his wife and Mr. Duffy's mother, until about 1.30 a.m. in the morning of the 27th May, 1996. He said that he had eaten some sandwiches and some cocktails sausages. He left the premises in the company of Mr. Kevin Kieron and his girlfriend, but they parted company outside the premises and he set out to walk home, remaining on the same side of the road as Harry Duffy's bar and the Maxol Service Station.
He recalled seeing Mr. Pat Hackett during this walk but his recollection was that Mr. Hackett was outside the Lisdoo Arms licensed premises of which he is the proprietor. He recalled waving to Mr. Hackett but he did not cross the road to speak to him. He continued walking on the same footpath until he came to the vicinity of the Maxol Service Station.
The Plaintiff told the Court that a long time after - maybe three years after - the 27th May, 1996, he recalled that he was walking in the middle of the footpath between the flowerbed and the petrol pumps when he saw lights flying at him from the north end of the Service Station. He could not get out of the way in time. After that, he said his next recollection was waking up in Hospital. He had pointed out to Sergeant William Piper on the 2nd April, 1999 the spot on the footpath where he thought he had been knocked down. The Plaintiff at my request marked this spot with the letter "B" on Mr. Osbourne's photograph No. 4.
The Plaintiff accepted that he told Dr. Sean Murphy, a Consultant Neurologist, who had examined him on behalf of the Defendant on the 6th October, 1999 that, "he was walking on the footpath on the 27th May, 1996, saw lights coming towards him and then his next memory is being an in-patient in Louth County Hospital some time later". The Plaintiff accepted that he had told Professor Jack Philips, Consultant Neurosurgeon who examined him on behalf of the Defendant on the 14th October, 2000 that, "he was walking on a footpath, observing lights coming towards him when [apparently] he was knocked down by a motor car". The Plaintiff, though he had no recollection of having done so, accepted that he had said on one occasion while in the hospital, that he had been hit by a green lorry and on a another occasion, while still in hospital that he had been hit by a red van. He said that he had heard that Mr. Hackett had said in a statement given to Sergeant William Piper that he had seen him crossing Dundalk Bridge. The Plaintiff, however, was firm in his conviction that he had seen Mr. Hackett standing outside the Lisdoo Arms licensed premises. The Plaintiff accepted what was recorded by Surgeon Mulcahy when she examined him on the 30th September, 1996, that he then had absolutely no recollection of what had happened to him: that his last memory was being in a pub and his next memory was of waking up in Louth Hospital, following his second admission.
The Plaintiff told Counsel for the Defendant that he had taken no intoxicating liquor at all after Ms. Rose Waters had left Harry Duffy's licensed premises. He said that he had enough drunk at that stage and just stayed on talking with the Duffy Family about "old times" and the ten years Mr. Duffy had run the premises. As they were leaving the premises Mr. Kieron's girlfriend gave him a cigarette and held out her lighter to enable him to light it. Initially he had thought he could get a lift home with them but they reminded him that they had moved from Dowdall's Hill to Castletown Park, so he had set out to walk home. The Plaintiff was asked how he could tell his own Counsel in Examination in Chief that he, "never had any doubt but that he was hit by a car", when Surgeon Mulcahy on the 30th September, 1996 and Mr. C. N. Pidgeon, Consultant Neurosurgeon, on the 3rd November, 2001 reported that he had no recall of the events. He said that about three years after the accident things started to come back to him. When taxed with Surgeon Murcahy's note of his recollection on the 23rd August, 1999, the Plaintiff said that all he could recall was light, seeing lights coming at him. It was put to him that all the people who had seen him on the morning of the 27th May, 1996 at the Maxol Service Station thought that he was very drunk. The Plaintiff said he was not drunk, it was the blow he got and if he was abusive to people, he was very sorry, it was not him.
The next witness was Ms. Rose Waters. She told the Court that she was the Plaintiff's lady friend and had been so for many years. She said that when they went out together for an evening, the Plaintiff never drank more that five pints of Guinness. In all the years of their relationship, she had never seen him affected badly by drink and never had to drive him home in her car because of drink. On the 27th May, 1996 they had met at about 9.30 p.m. and had gone to Mr. Harry Duffy's bar. She said that the Plaintiff was a friend of the owner and his family. Mr. Duffy was closing down this business and a sort of party was in progress so that the premises was packed with customers and friends. She had remained there until about midnight or shortly thereafter and the Plaintiff had stayed on after she had left. While she was present, she said that the Plaintiff was drinking Guinness and had not partaken of any of the food provided. She could not recall exactly how many pints he had consumed but felt that it was his usual five pints of Guinness. She said that she next saw him in Louth County Hospital later on the 27th May, 1996 which she believed was a Monday.
She said that he was lying on a trolley. His jacket was open but was otherwise all right. She accepted that his shoes and his trousers were muddy but could not explain this fact. She said that his clothes were dirty and his face was "pot black". She believed that he had vomited. Surgeon Mulcahy was trying to elicit some responses from him. Miss Waters said that she had suggested that she might be permitted to try and Surgeon Mulcahy agreed. Miss Waters said that she then asked the Plaintiff to lift his right hand, which he did. There was no response when she asked him to lift his left hand. She followed in her car after the Plaintiff was rushed by ambulance to Beaumont Hospital in Dublin. She told the Court that she next saw the Plaintiff after surgery, when he was unconscious.
Miss Waters said that the Plaintiff spoke to her at about half past three on Wednesday of that week. Counsel for the defendant objected to her telling the Court what the Plaintiff had said to her on that occasion as, he contended, this would be a breach of the Hearsay Rule. Counsel for the Plaintiff submitted that what the Plaintiff had said on that occasion was admissible in evidence as part of the Res Gestae. I ruled that what the Plaintiff had said to Miss Waters on that occasion and of which he had no recollection, was not admissible as part of the Res Gestae, that is as proof of the truth of the matter asserted in the proceedings, to wit, that the Plaintiff had been hit by a mechanically propelled vehicle. Having regard to the lapse of approximately 60 hours from the events of Monday morning, I considered that anything the Plaintiff said to Miss Waters as to what had occurred on that occasion lacked the immediacy and overwhelming degree of crisis necessary in order to invoke that Rule. I permitted Miss Waters to give evidence of what the Plaintiff had said on that occasion, not as proof of what had occurred, but as evidence that he had at that time given an account of what had occurred to him. Miss Waters recalled that what the Plaintiff had said to her was that he had, "got a bash". It was put to Miss Waters in cross-examination, that there were no muddy areas between Mr. Duffy's licensed premises and the Maxol Service Station. She did not reply to this question but made a gesture which I interpreted as signifying that she really did not know or could not recall.
In his statement Mr. Pat Hackett said that on Monday morning the 27th May, 1996 at about 2.30 a.m. he saw the plaintiff on the bridge over the Castletown River in Dundalk. The plaintiff was walking on the footpath. He was walking northwards on the same side of the Newry Road as the now Maxol Service Station, then a Statoil Service Station, which was about 150 yards further on. This was also the same side of the road as Harry Duffy's Bar. The plaintiff was walking in the direction of his home at Dowdall's Hill. In his statement made to Sergeant W. Piper on the 31st May, 1996, which was admitted in evidence, Mr. Hackett, who was not available to give evidence at the hearing, said, "I would imagine that he had a few pints in him but he was making his way slowly". Mr. Hackett is the owner of the Lisdoo Arms, a licensed premises situated a short distance beyond the bridge at the junction of Forkhill Road and Newry Road.
In a statement made to Sergeant W. Piper on the 4th June, 1996, Martina McCaffrey, now Mrs. Fitzpatrick, said that she and Mr. Padraig Grey had spent about 20 minutes, "hitching a lift" on the side of the Newry Road almost opposite the Maxol Service Station. In his statement made to Sergeant W. Piper on the 31st May, 1996, Mr. Grey put the time at, "about ten to or five to three in the morning". Neither Mr. Grey nor Martina McCaffrey gave evidence at the hearing of this action but both statements were admitted into evidence.
Martina McCaffrey told Sergeant Piper:-
". . . We were there for about 20 minutes. Alan Toner drove past me. He shouted at me and then spun around on the road and headed straight back up the town. There were a few fellows in the car. He was driving a black-greenish car. Alan Toner stopped and Padraig said something for a minute to him. I didn't see anything happening on the road. I didn't see anyone lying on the road. No one got out of Alan Toner's car. . . . "
Some time later that morning of the 27th May, 1996 shortly before or shortly after 5 a.m., Martina McCaffrey and Padraig Grey, with three other men, were walking back into Dundalk along the Newry Road. Mr. Grey told Sergeant W. Piper that he saw a man, "lying on his side on the footpath. His whole body was stretched out in the road." He noticed a black car parked in the car park of the Renault Garage, (Messrs. Rice and Roddy), opposite. It contained two young men and two young women, one of whom was Ms. Aisling Lee who gave evidence during the hearing of this action. Mr. Grey told Sergeant W. Piper that he pointed out, "the fellow lying down on the road to the others". They all went across the road to where the man, accepted to have been the plaintiff, was lying. In evidence Aisling Lee told the Court that one of the men, Gary Nordone, asked the man if he was 'o.k.' She recalled that the man was moaning and seemed to be in pain. Mr. Grey in his statement told Sergeant W. Piper that Mr. Nordone tried to lift the man whom he thought said, "Fuck off", to which Mr. Nordone replied, "Fuck off you". Mr. Grey told the Sergeant that there was no sign of blood but the plaintiff was all dirty. They left the plaintiff and they all went back across the Newry Road to the forecourt of the Renault Garage and the car.
About five or ten minutes later another car came along. Mr. Stephen O'Connor, who gave evidence at the hearing of this action, was a front seat passenger in that car. In a statement made to Sergeant William Piper on the 1st June 1996 and admitted into evidence, he said that as the car passed the Maxol Service Station he, "Saw a man lying on the road. He was twisted in an L shape. His feet were protruding out a good bit onto the road." He told the other persons in the car what he had seen. The driver turned the car at the nearby traffic lights and came back up the Newry Road and parked at the Renault Garage. Mr. O'Connor told the Court that he is a barman at a Dundalk hotel. He said that he and another man got out of the car and crossed the Newry Road. The car in which they were passengers was a wine- coloured Kadett "Expression".
In his statement to Sergeant Piper Mr. O'Connor said:-
"I asked him if he was ok. We lifted up under the arms. His legs went from under him and he fell to his knees. He started getting abusive and told us to fuck off. We wouldn't leave him where he was. We lifted him and had to drag him into the forecourt near the pumps. He was a dead weight. We put him down. There wasn't one mark on him. He was very, too drunk. He definitely had far too much drink. There wasn't a mark on him. He was standing up and I think I would have seen an injury if there was one. There wasn't a drop of blood anywhere. His face was grand, no marks, no blood. If I thought he was injured I wouldn't have left him there. If I knew where he lived I would have brought him home. We wouldn't have left him there. I see people drunk fairly often and I just thought he was drunk."
In evidence Mr. O'Connor told the Court that if he considered the plaintiff was injured he would have immediately called an ambulance. The plaintiff, he said, could hardly talk but he was mumbling. They linked arms and tried to get him to walk but he could not support his own weight and fell to his knees. They laid him on the station forecourt, flat on his back, as appears in photograph number 8 and its enlargement, No. 7. Mr. O'Connor said that he and the other man lifted the plaintiff very carefully between them and put him down carefully and did not bang his head. He recalled that there was a fair amount of mud on the plaintiff's shoes and on the bottom of his trousers. Mr. O'Connor described the plaintiff as lying with the upper part of his body parallel to the flower bed at the edge of the road, with his legs sticking out into the road. He was afraid that the plaintiff's legs would be run over as this is the main Dundalk to Newry road. Mr. O'Connor denied that he had put the plaintiff sitting up against a wall a little bit off the road as appears in the statement of Mr. Padraig Grey.
Martina McCaffrey in her statement to Sergeant W. Piper described seeing a car stopped and two young fellows getting out of it and lifting something into the Statoil Garage (as it then was). When she reached the garage she saw an oldish fellow lying on the ground by the pumps. He was lying on his back. He was muttering and she could not understand him. She did not see any injury and thought he was just drunk. She said the two fellows, "that got out of the car just threw him there".
Aisling Lee told the Court that the two men were trying to move the plaintiff by linking and walking him. They let him go to see if he could walk on his own and he went down on his knees and his elbows. Though there was no sign of injury or blood, she thought that there was something wrong with the plaintiff because of the way he was moaning. Her recollection was that the men had left the plaintiff on his elbows and knees near the petrol pumps. Aisling Lee said that when she first saw the plaintiff he was lying with his head and shoulders on the flower bed and his legs sticking straight out in front of him onto the road and separated. She indicated the same spot on photograph No. 3 as had been indicated by Mr. Stephen O'Connor.
The next person to arrive on the scene was Mr. Thomas Kirk, who gave evidence at the hearing of this action. His arrival is timed at between 5 a.m. and 5.30 a.m. In a statement made to Sergeant W. Piper on the 28th May, 1996, he said that as he arrived in his Pagero grey-coloured jeep at his father's garage immediately north of the Renault Garage and across the Newry Road from the Maxol Service Station, (to which he referred as McKevitts Statoil Filling Station), he saw the figure of a man lying on his side in the forecourt of the station. He saw a black Toyota Corolla car parked at the Renault Garage and he recognised two of the persons in the car as Gary Nordone and Aisling Lee. Mr. Colm Conlon, an employee of Mr. Robbie McGahan then arrived at Kirk's garage in a red and white "Evening Herald" van. They both got into Mr. Kirk's jeep and drove across the Newry Road to the Statoil Service Station. They recognised the man on the forecourt as Pat Rogers, the plaintiff in these proceedings. Mr. Thomas Kirk told Sergeant W. Piper that the plaintiff appeared to be very drunk. He shook his shoulder in an effort to rouse him. The plaintiff was moaning. He said that he could not get the plaintiff to his feet. He saw no injuries on the plaintiff. He looked for blood in case the plaintiff's head had hit the concrete but he saw none. He took the photograph numbered 8 at 5.30 a.m. Mr. Kirk told the Court that he knew the plaintiff was not well: he was not in a normal sleep and his face showed signs of distress. He confirmed that when he first saw him the plaintiff was lying on his side. He had a good view as he was driving a jeep and it was getting bright at the time. He and Mr. Conlon went back across the Newry Road with the intention of telephoning for an ambulance. At that point Mr. Roddy McGahan, Mr. Conlon's employer, arrived at the Renault Garage in a white truck. After Mr. McGahan had delivered some newspapers at the garage he drove across to the Statoil Service Station. Mr. Kirk then saw Mr. McGahan and Mr. Conlon grasp the plaintiff under his arms and feet and lift him carefully into the back of Mr. McGahan's lorry and lay him on his back inside the sliding doors. Mr. McGahan then drove away very slowly. Mr. Conlon had told Mr. McGahan where the plaintiff lived.
Mr. Robert McGahan gave evidence at the hearing. He made a statement to Sergeant W. Piper on the 20th March, 1996. He said that he parked his truck behind the petrol pumps at the Statoil Service Station on the other side of which pumps the plaintiff was lying. He said that the plaintiff's clothing was very dirty with oil and diesel from the forecourt and there was mud on his trousers and shoes. He said that the plaintiff was lying on his back and breathing through his mouth. In his statement to Sergeant W. Piper Mr. McGahan said:-
"I bent down over him. I shook him a few times and tried to waken him. I told him that everybody was looking at him and to waken up and I would give him a lift home in the truck and to think of his family, that he couldn't lie there all day. The only response I got, was he told me to 'Fuck off'. He never opened his eyes at all. Colm Conlon pulled up in the van on the side of the road and said, 'Leave him McGahan, look at the state of him'. I said, 'No, give me a hand to lift him.' His face was very yellow. I certainly did not see any injury to him. I remarked to Flossy [Mr. Conlon], 'Look at the way he is holding his arm, he must have fallen.' He was supporting one arm with the grip of the opposite hand. Colm grabbed him by the feet or the ankles, I lifted him underneath the armpits and lifted him up into the floor of the lorry. Flossy said, 'You want to watch that he doesn't fall out.' I placed four or five parcels of paper behind him to stop him falling out."
Mr. McGahan then drove away very slowly. He estimated his speed at about 5 miles an hour. After delivering some papers to local businesses he came to the plaintiff's house. He told Sergeant Piper that the plaintiff had become incontinent and had vomited. He felt that the plaintiff was, "stoned drunk". Mr. McGahan told the Court that the plaintiff was holding his arm like he was in a lot of pain and looked a very funny colour. Mr. McGahan said that he had First Aid Training and before starting his business of regional newspaper bulk deliveries had over 20 years' experience as a doorman at clubs and hotels.
Mr. McGahan told the Court that he knocked several times at the door of the plaintiff's house but received no answer. He then turned the plaintiff on his side and lifted his legs down from the lorry, about three feet, until his feet touched the ground. He then took the plaintiff under the arms and carried him to the front wall of his house and put him sitting on the ground against the wall. He knocked harder on the front door but got no answer. He then took the plaintiff under the arms and half dragged and half carried him around to the rear of the house and left him sitting upright against the wall. Several times the plaintiff said what he believed to be, "Fuck off" but he could not be sure as the plaintiff's speech was very unclear. Mr. McGahan recalled that when he first saw the plaintiff lying on the forecourt of the Station Service Station he was lying on his side, holding one arm with the other. At that point the plaintiff looked as if he had been sick and there was black stuff around his mouth and chin. Mr. McGahan felt that Guinness was involved. He noted that the plaintiff's face was a queer yellow colour. Mr. McGahan said that there was a small area of concrete, like a concrete path, at the back of the plaintiff's house but there were no steps.
Betty Rogers told the Court that she lived in the house with her daughter, her mother and her brother, the plaintiff. She said that she got up at about 10.30 or 10.40 that morning. At 10.50 she heard a sort of coughing noise outside the back of the house, like a dog being sick. She did not go out. The noises persisted and about 11.30 she looked out a window and saw a man lying on the ground. She opened the back door and ran out. She recognised her brother. She said he was lying flat on his back with his head turned towards the back door. His neck seemed swollen and his face was all black from under his eyes up into his hair. His hair was all sticky on both sides. There seemed to be a swelling on his right temple and his tie was undone but his shirt was still fully fastened. In her statement made to Sergeant W. Piper on the 1st June, 1996, the witness said that the plaintiff told her that he was all right but was just 'skint', which meant, she said, that he was cold. He also said that he had a sore throat.
She called an ambulance and travelled to Louth County Hospital in the ambulance with the plaintiff. At about 4.30 p.m. that afternoon the plaintiff was taken by ambulance to Beaumont Hospital and the witness followed the ambulance in her car. She recalled that the plaintiff had come out of surgery at midnight on the 27th May, 1996 and that he was in an out of sleep after that. On Wednesday the 29th May, 1996 or Thursday the 30th May, 1996 she visited her brother in Beaumont Hospital. She said in her statement to Sergeant Piper that, "He came out of his sleep and said he was hit by a small sand truck, a green truck." In cross-examination she said that this remark came out of the blue. She said that one could not have a conversation with the plaintiff while he was in hospital. She agreed with Counsel for the Defendant that the plaintiff had previously told his lady friend, Rose Watson, that he had been hit by a red van or car. She stated that she had been given all the plaintiff's clothes at Louth County Hospital. She said that there was dried mud on his shoes only and she saw no mud on his clothing. She said that his wallet contained notes and coins and there was loose change in the pocket of his coat, together with the keys of the house.
Garda Sergeant William Piper, stated that he had fully investigated this incident. Initially he considered that the injuries to the Plaintiff's skull could have been sustained in a road traffic accident, in an assault, or in a fall. He said that the Plaintiff was too ill to be interviewed while in Beaumont Hospital in Dublin but that he had spoken to him in June, 1996 in Louth County Hospital. On that occasion he recalled that the Plaintiff appeared confused and was wandering in his speech. On that occasion the plaintiff had told him that he had been in the Stag's Head licensed premises. He could not remember leaving that premises but recalled that he had left his coat there. He could not remember being in Harry's (Mr. Duffy's licensed premises). He said that he was hit by a green sand truck owned by Phillips. Sergeant Piper told the Court that he established that the Plaintiff had not been in the Stag's Head licensed premises on the relevant Sunday night and Monday morning.
He said that he spoke to the Plaintiff again at his house on the 21st July, 1996. On that occasion the Plaintiff told him that he had no recollection of the matter but could see in his mind flashes of a red coloured van. Sergeant Piper told the Court, without objection, that Betty Rogers had told him that the Plaintiff told her in Beaumont Hospital that he had been hit by a green sand truck and that Miss Waters had told him that the Plaintiff had said to her, also in Beaumont Hospital, that he had been hit by a red coloured van.
Sergeant Piper told the Court that until the 4th June, 1996 when he had taken a statement from Martina McCaffrey, he considered that a road traffic accident was not involved. In her Statement Martina McCaffrey had said that [when she and Mr. Padraig Grey were thumbing a lift opposite and a little on the town side of the Maxol Service Station], "Alan Toner drove out past me. He shouted out at me and then spun around on the road and headed straight back up the town. There were a few fellows in the car. He was driving a black-greenish car. Alan Toner stopped and Padraig said something for a minute to him. I didn't see anything happening on the road. I didn't see anyone lying on the road. No-one got out of Alan Toner's car." Sergeant Piper told the Court that he had thoroughly examined the carriageway surface of the road adjoining the Maxol Service Station at 6 a.m. on the 28th May, 1996. He said that there were no tyre marks on the road. He felt that if Mr. Toner had "spun" his car around on the road, it should have left tyre marks on the surface.
Sergeant Piper said that he was able to turn a family saloon type motor car on the carriageway outside the Maxol Service Station but only by driving very slowly and taking up every available inch of the surface of the carriageway. In his opinion, for a similar sized vehicle to execute a rapid "U" type turn at this location, it would have to enter on part of the forecourt of the Maxol Service Station or the Renault Garage opposite it, or both. He said that an ordinary three point turn could readily be accomplished but he did not consider that this fitted within the description "spun around in the road". He told the Court that Mr. Toner had numerous convictions in relation to road traffic offences and had been charged with endangerment arising out of the driving of a car.
He said that he had interviewed Mr. Toner on the 4th of September, 1996. Mr. Toner refused to give any particulars about the car he was driving and said that it could have been any car. He accepted, however, that if Martina McCaffrey said he was there, then he was there. Sergeant Piper admitted that there was no evidence, forensic or otherwise, that the Plaintiff had been struck by a mechanically propelled vehicle. However, the fact that Mr. Alan Toner was in the location at the time and had driven and turned a car on the road at the location, made him, so far as Sergeant Piper was concerned, a "prime suspect" in the matter. He had not been able to identify or to trace the car driven by Mr. Toner on that occasion. In cross-examination Sergeant Piper accepted that there was no evidence as to when the Plaintiff's skull fracture or fractures actually occurred. He conceded that he would have expected the Plaintiff to have suffered other injuries in a "hit and run" type incident. He accepted that there was no forensic evidence that the Plaintiff had been in a collision with a mechanically propelled vehicle. He accepted that though the Plaintiff's trousers, jacket and jumper had been washed by his sister before they came into the possession of the Garda Síochána, there were no signs of any impact damage to those garments. Sergeant Piper accepted that the probable source of the mud on the Plaintiff's shoes was the flower bed between the footpath at the Maxol Service Station and the Newry Road. He accepted that he did not check the surface of this flower bed for tyre or other marks on the morning of the 28th May, 1996 or at any time thereafter.
He accepted that while this flower bed is surrounded by a very low kerb on three sides, there is a low wall, about three bricks high with somewhat higher pillars at each end, between the footpath at the Maxol Service Station and the flower bed. He accepted that it was quite possible that the Plaintiff could have fallen and struck his head on this wall or on the concrete of the footpath and garage forecourt. He accepted that apart from his suspicions regarding Mr. Toner, the most likely explanation for the injury to the Plaintiff's skull was that he had fallen in the flower bed and struck his head in falling.
He accepted that there were no paint marks or wheel marks on the Plaintiff's body or clothes and that there was no evidence of external cuts or of any significant bruising. Sergeant Piper accepted that Martina McCaffrey had said in her Statement that she did not see anything happening on the road, did not see any one lying on the road and that Alan Toner had stopped his car and spoken to Padraig Grey for a minute. He accepted that Mr. Toner was unlikely to have stopped his car and spoken to Mr. Grey had he in fact collided with the Plaintiff in the forecourt of the garage. He accepted that Martina McCaffrey and Padraig Grey were only forty two feet away from the Maxol Service Station and that there was nothing to impair their view of the forecourt of that service station and the road in front of it. He told the Court that only a very high clearance vehicle such as a cross country vehicle could hope to straddle the wall between the flowerbed and the footpath. Sergeant Piper accepted that it would have taken a very severe blow from a mechanically propelled vehicle to propel the Plaintiff from the footpath in front of the fuel pumps to the position where he was found lying along the roadside edge of the flowerbed with his legs protruding out into the carriageway.
Professor Jack Phillips, Consultant Neurosurgeon and Associate Professor of Surgery at the Royal College of Surgeons in Ireland, gave evidence. He told the Court, and I accept his explanation, that the statement in the, "Opinion Prognosis Section", of his medical reports of the 14th October, 2000 and the 26th February, 2003, to the effect that, "Patrick Rogers sustained a serious head injury as a result of a road traffic accident which occurred on the 27th May, 1996", was not a finding by him as to how the injuries occurred. He accepted that in the letter from the Solicitors for the Defendant referring the Plaintiff to him, there was a reference to an alleged road traffic accident. He recalled that the Plaintiff had told him that he was walking on the footpath with lights coming towards him and he remembered no more after that. Professor Phillips told the Court that he had never been asked to say if the injuries suffered by the Plaintiff were caused in a road traffic accident or otherwise. In cross-examination he accepted that the injury to the Plaintiff's head could have been sustained in an impact with a vehicle. He told the Court that in the case of such an impact it would be more common to have other injuries as well, such as joint injuries and multiple abrasions and such like. He accepted that the bruising which the Plaintiff suffered in the area of his left hip could be classified as such an additional injury.
Dr. Declan Gilsenan an Assistant State Pathologist, was called in evidence on behalf of the Defendant. He told the Court that he was a Fellow of the Royal College of Pathologists, a Fellow of the Faculty of Pathology of the Royal College of Physicians in Ireland and was a pathologist employed by the Midland Health Board. He said that he dealt with anatomical pathology and histo-pathology. He told the Court that he had received training in the neurological and neurosurgical units of the Richmond Hospital. He said that he carried out approximately 150 post-mortem examinations each year, mainly on persons who had died from head injuries, of which about 50 would have occurred in road traffic accidents.
He told the Court that in his opinion the probable cause of the head injuries suffered by the Plaintiff was an impact with a solid flat surface such as the footpath or the garage forecourt where the Plaintiff was found. There was no impact point such as one would expect to find if the Plaintiff had struck his head on an edge or had been struck on the head with an instrument. He said that he interpreted the X-ray notes as signifying that the Plaintiff had suffered a basal skull fracture such as was often caused when intoxicated persons fall backwards and strike their head on a solid flat surface. Dr. Gilsenan accepted that the head injury suffered by the plaintiff could have been caused if he had been struck by a car, lifted into the air and had then fallen on his head. However, in the absence of any injuries below the neck, he considered that a fall rather than a vehicle impact was involved in this case. In his opinion isolated head injuries occurred only to persons travelling in a mechanically propelled vehicles but never to persons struck by such vehicles in the open.
In cross-examination Dr. Gilsenan was asked to explain how, if the Plaintiff had fallen, as he appeared to be suggesting, on the footpath or the garage forecourt, he was found with his upper body and head lying in the flower bed between the footpath and the roadway, with his legs stretched out into the roadway. He accepted that a possible explanation was that he had been thrown there as a result of a vehicle impact. Dr. Gilsenan accepted that the bruising in the area of the Plaintiff's left hip was consistent with either a vehicle impact or a fall.
Dr. Gilsenan accepted that it was most likely that an impact with a concrete surface, a tarmacadam surface or a brick surface would produce lacerations or grazing on the skin. However, he stated that this would depend on the amount of friction which had occurred between the skin and the particular surface. He told the Court that while he was not ruling out a vehicle impact, he felt that in the absence of extensive bruising and additionally or alternatively limb fractures, he considered a fall to be the most probable cause of the injuries sustained by the Plaintiff. When persons suffer head injuries as a result of being struck by cars he said that the cause was usually contact with the ground more than contact with the body of the car itself. He considered that the Plaintiff's height, weight and physique were not important factors in considering the likely consequences of his skull striking the ground. Dr. Gilsenan considered that the bones of the Plaintiff's skull were likely to be less robust than those of a taller and heavier male. I hope I do no disservice to the Plaintiff in describing him as of middle height, thin but strong, with thick grey hair, cut short.
Evidence was given by Mr. C.N. Pidgeon, a Consultant Neurosurgeon. He said that the Plaintiff had bruising on both sides of his scalp. The Plaintiff had bruising in the area of his left hip and lacerations on his right hand. In his opinion the Plaintiff had suffered a very significant blow or impact. He told the Court that the sort of force involved would equate with being struck by a golf club. Mr. Pidgeon considered that the head injuries suffered by the Plaintiff were consistent with a vehicle impact or a fall. He told the Court that it was not uncommon for victims of head injuries to get, "flashbacks" of the incident which led to the injuries. He said that the recall might not always be correct but usually it had some basis and the more consistent the recollection, the more correct it was likely to be. Mr. Pidgeon considered that a Neuropathologist or a Forensic Scientist could offer an opinion as to the cause of the injuries to the Plaintiff's head.
He told the Court that while the Plaintiff was under his care, - and the emergency surgery carried out by Mr. Pidgeon undoubtedly saved the Plaintiff's life and led to his making what Professor Phillips hailed as a truly remarkable recovery, - the Plaintiff had told him that he had no recall of the events which led to his being injured. Mr. Pidgeon told the Court that one would not necessarily expect to see bruising on the Plaintiff's head or face in the photograph taken by Mr. Thomas Kirk at 05.30 hrs. while the Plaintiff was still lying on the forecourt of the Maxol Service Station where he had been left by Mr. Stephen O'Connor and the other man. Mr. Pidgeon said that bruising takes time to develop. He said that the presence or absence of blood in the case of a head injury would depend upon the nature of the surface struck.
He said that the injuries suffered by Mr. Rogers were quite consistent with Mr. Rogers having been struck by a vehicle but he was not saying that he was struck by a vehicle. The injuries could have been caused by a fall or a car. A head injury would not necessarily have to be caused by a direct blow from a vehicle: it could equally arise from the victim being knocked over by the vehicle and striking his head elsewhere on a hard surface. Mr. Pidgeon said that he would expect significant lower body injuries if the impact was at high speed but not necessarily if the impact was at low speed. He told the Court that the stomach bleed referred to in the Report dated 10th October, 1996 from Ursula Mulcahy, Consultant Surgeon, was a side effect of the drugs used in the course of treatment and was not due to trauma of any sort.
Dr. James Maguire, a Consultant Psychiatrist, was called in evidence on behalf of the plaintiff. Dr. Maguire told the Court that the condition the plaintiff was in when he made statements as to what had happened to him was vital to the reliability of those statements. In his opinion the plaintiff was probably in an acutely confused state in the period after the particular form of head surgery he had undergone and this would account for the inconsistent statements made by him at that time as to what had occurred on the 27th May, 1996. Dr. Maguire considered that these statements were unreliable and that it was not possible to draw any inference from them save that some form of trauma had occurred. Dr. Maguire felt that the history of the event which the plaintiff had given to him in consultation had to be regarded differently. This account was that he was walking on the footpath and lights came against him and then he remembered no more. Dr. Maguire considered that this account had been given in clear consciousness. The fact that the plaintiff on other occasions had stated that he could not recall what had occurred, did not cast doubt on this account. He was satisfied that the plaintiff had short term memory difficulty and it would not be at all unusual for him to have a recall on some occasions and not on others.
At the close of the evidence for the plaintiff, and again at the conclusion of all the evidence in the case, Counsel for the defendant applied to the Court for a dismiss of the plaintiff's case. This was on the basis that there was no evidence sufficient to go to a jury that the plaintiff had been involved in a collision with a mechanically propelled vehicle or in any event that the driver of that vehicle was negligent [Rothwell v. MIBI (2003) I.L.R.M., 1, Supreme Court]. On the initial application, Counsel for the defendant confirmed to the Court that the defendant would go into evidence in the event of the application being refused. Counsel for the defendant relied on the decisions in Hetherington v. Ultra Tyre Service Ltd. (1993) 2 I.R. 535, and O'Toole v. Heavey, (1993) 2 I.R. 544. On each occasion I declined to grant the application sought, being satisfied, for reasons I identified, that there was sufficient evidence from which a jury could reasonably conclude on the balance of probabilities that the plaintiff had been struck by a mechanically propelled vehicle and if that jury was satisfied, as in my judgment, it was reasonably open to them on the evidence to be satisfied, that the collision had taken place on a public footpath, they would be entitled to find on that evidence alone, that the driver of the particular mechanically propelled vehicle was negligent.
The evidence before the Court was that Mr. Rogers had consumed seven pints of Guinness over a period of approximately three hours and fifteen minutes on the evening of the 26th May, 1996. After this, he told the Court, and I accept his evidence, that he had consumed some sandwiches and cocktail sausages while talking to members of the Duffy Family up to the time he eventually left the licensed premises at about 1.30 a.m. on the morning of the 27th May, 1996. I have no reason to reject his evidence, supported as it is by the evidence of Ms. Waters, that his normal consumption of alcohol in the course of an evening, was five pints of Guinness, so that his body had become habituated to constantly coping with at least that amount of alcohol. I am satisfied that the extra two pints of Guinness consumed on this particular occasion did not result in his becoming either mentally or physically impaired. I find it altogether improbable that his long-time lady friend, Ms. Waters, the various members of the Duffy Family or Mr. Kieron and girlfriend would have permitted the plaintiff to make his way home on foot if he had been intoxicated to the point where he was unable to think or to articulate properly or to effectively control his movements. Mr. Hackett, a wholly independent witness, told Sergeant Piper four days later that he considered, and he is the owner of a licensed premises, that the plaintiff had a few pints in him but was making his way slowly along the footpath. This, or the footpath on the opposite side of the Newry Road, had been the plaintiff's habitual, and until the 27th May, 1996, safe way home for decades.
I am satisfied that Mr. Rogers continued to progress in the manner described by Mr. Hackett until he reached the Maxol Service Station. There can be no doubt, having regard to the medical evidence, that if he had suffered the particular head injuries, - however caused, - at an earlier stage in his journey, it would not have been possible for him to have continued. On the balance of probabilities, I am satisfied that when he reached the forecourt of the Maxol Service Station, the plaintiff was walking slowly on the public footpath. I have no reason to doubt the accuracy of what he told Sergeant Piper, Mr. Osbourne and the Court that, as he started to move between the flower bed on his left and the petrol pumps on his right, he was walking in or about the middle of the public footpath. This placed him well in from the carriageway and separated from it by the flower bed and the low wall bounding the same.
The plaintiff told the Court that about three years after the 27th May, 1996, he began to recall that as he was walking in the middle of the footpath, between the flower bed and the petrol pumps, he saw lights flying at him from the north end of the Maxol Service Station and he could not get out of the way in time. His next recollection, he said, was of waking up in hospital. On the 6th October, 1999, the plaintiff told Dr. Sean Murphy, a Consultant Neurologist who had examined him on behalf of the defendant, that, "He was walking on the footpath on the 27th May, 1996, saw lights coming towards him and then his next memory is being an in-patient in Louth County Hospital some time later." He told Professor Phillips, a Consultant Neurosurgeon who also examined him on behalf of the defendant, on the 14th October, 2002 that, "He was walking on a footpath, observing lights coming towards him, when he was knocked down by a motor car." The Statement of Claim in this case was delivered on the 12th July, 1999 and at paragraph 3 thereof it is alleged that,
"On or about the 27th day of May, 1996, whilst the Plaintiff was walking through the forecourt of the Statoil Petrol Station at Newry Road, Dundalk, in the County of Louth, a motor vehicle, the driver of which remains unnamed and untraced, was caused or permitted to collide with or strike the plaintiff . . . "
In January, 2003 the plaintiff told Dr. Maguire, a Consultant Psychiatrist, that he was walking on the footpath and lights came against him and then he recalled no more.
The plaintiff has persisted in this account of what he believes occurred to him on the 27th May, 1996, without alteration or elaboration, since mid 1999. I accept, on the evidence of Dr. Maguire, that the plaintiff continues to suffer from short-term memory impairment and the fact that he cannot on occasions remember anything of what occurred on that date does not cast doubt on this recollection.
On the evidence before the Court, the plaintiff was next seen by Padraig Grey, Aisling Lee, Gary Nordone, Stephen O'Connor and others, some time about 5 a.m. on the morning of the 27th May, 1996, still in the general area of the forecourt of the Maxol Service Station. Mr. Grey, - who did not give evidence, - told Sergeant Piper that the plaintiff, "was lying on his side on the footpath, his whole body was stretched out in the road". Mr. O'Connor, who impressed me as a careful and accurate witness, told the Court that the plaintiff was lying with the upper part of his body parallel to the flower bed at the edge of the road but with his legs sticking out into the road. Aisling Lee told the Court that when she first saw the plaintiff, - which was some five or ten minutes before he was seen by Mr. O'Connor, - he was lying with his head and shoulders on the flower bed and his legs separated and sticking straight out in front of him into the road.
It was argued on behalf of the defendant that the mud visible on the plaintiff's shoes in photographs 7 and 8 and Mr. O'Connor's evidence that there was a fair amount of mud, not only on his shoes but on his trouser bottoms, suggests that the plaintiff had walked or stumbled into the flower bed and had fallen there, striking his head on the flower bed surrounds, or had walked or stumbled across the flower bed onto the carriageway of the road where he was then struck by a vehicle, there being no evidence that that vehicle was being driven negligently. This argument presents a number of difficulties and is open to a number of objections. It is evident from the photographs, taken by Mr. Osbourne and proved in evidence by him, that before arriving at the Maxol Service Station, the plaintiff had to pass along a part of the footpath with flower beds, grass borders and shrubbery on both sides and a number of open areas giving access to the carriageway of the road. The plaintiff is a gardener who had assisted in laying out these particular flower beds and grass areas, including the flower bed in front of the Maxol Service Station and would therefore, in my opinion, be unlikely to deliberately walk into or across these beds. There is a low brick wall, visible in photograph No. 4, and described in the course of the evidence as being about three bricks high, between the footpath and the flower bed, at the point where Mr. O'Connor and Aisling Lee first saw the plaintiff lying. All the photographs indicate that the footpath where the plaintiff last recalls walking and adjacent to where he was next seen by Mr. O'Connor and Aisling Lee, is particularly wide, flat, open and unobstructed because of the adjoining Maxol Service Station forecourt. On the other hand, Dr. Gilsenan accepted that the plaintiff could possibly have been thrown into the position where he was found by Mr. O'Connor and Aisling Lee and others, by the force of an impact with a mechanically propelled vehicle on the footpath where he claims he had last been walking.
I accept that there is no direct evidence as to where the plaintiff suffered the head injury. I do not think that there is any disagreement between the evidence of Dr. Gilsenan that the plaintiff suffered a Basal Skull Fracture and the evidence of Mr. Pidgeon. Mr. Pidgeon gave evidence that the plaintiff must have suffered a very significant blow or impact to his head: the equivalent of being struck with a golf club. From this evidence I believe the Court may infer that after this blow or impact, the plaintiff would be unable to proceed any further.
Aisling Lee told the Court that the plaintiff was moaning and seemed to be in pain. Mr. Thomas Kirk, who saw the plaintiff somewhat later, after he had been moved from the roadside to the forecourt of the Maxol Service Station by Mr. O'Connor and his friend, also noted that the plaintiff was moaning and showed signs of distress and decided to call an ambulance. Mr. Robert McGahan who then came on the scene and who told the Court that he had First Aid training, noted that the plaintiff's face was a queer, very yellow colour and directed Mr. Colm Conlon's attention to the way the plaintiff was supporting one arm with the grip of the opposite arm and seemed to be in a lot of pain.
Mr. O'Connor, who told the Court that he is a hotel barman and sees people drunk fairly often, decided that the plaintiff was very drunk. Mr. Robert McGahan, who told the Court that he had twenty years' experience as a doorman at clubs and hotels, considered that the plaintiff was "stoned drunk". Martina McCaffrey told Sergeant Piper that she considered that the plaintiff was just drunk. Mr. O'Connor noticed that there were no marks and no sign of blood on the plaintiff and he therefore did not consider that the plaintiff had been injured. Martina McCaffrey told Sergeant Piper that she did not see any injuries to the plaintiff. Aisling Lee told the Court that she did not see any injuries to the plaintiff. Mr. Kirk said that he saw no injuries on the plaintiff. He said that he looked for blood in case the plaintiff had hit his head on the concrete but he saw no signs of any blood. Mr. McGahan told Sergeant Piper that he did not see any injury to the plaintiff, other than what I have already described. He told the Court that the plaintiff became incontinent and vomited in his lorry.
From the foregoing evidence I am satisfied to conclude that the plaintiff suffered the very severe injury to the base of his skull at or near the location where he was first noticed by Mr. O'Connor and Aisling Lee.
Photographs 7 and 8 show no bruising or blood on so much of the plaintiff's face and forehead as is visible. However, Mr. Pidgeon told the Court that bruising takes time to develop and he would not necessarily expect to see any bruising in a photograph taken at 05.30 a.m. Mr. Pidgeon and Dr. Gilsenan told the Court that the presence or absence of blood or abrasions would depend upon the nature of the surface struck and the type and amount of friction which occurred between the plaintiff's skin and that surface. Betty Rogers told the Court that when she saw her brother at the back of their dwelling house at about 11.30 a.m. his neck seemed swollen, there seemed to be a swelling on his right temple, and his face was black from beneath his eyes up to his hair. Mr. Pidgeon told the Court that the plaintiff had bruising on both sides of his scalp. He had bruising in the area of his left hip and there were lacerations to his right hand.
Dr. Gilsenan considered that the probable cause of the fracture of the plaintiff's skull was that the plaintiff, as often occurred in the case of intoxicated persons, fell backwards and struck the top of his spine on the flat solid surface of the footpath or the Service Station forecourt, and this in turn fractured the base of his skull. Given the absence of any discernable impact point, Dr. Gilsenan was satisfied that the plaintiff was not struck with an instrument and did not strike his head on any raised or edged surface such as the kerb or small wall surrounding the flower bed. If so severe an injury occurred on the footpath, - which is what the plaintiff contends, - the Court must ask how he came to be found lying partly on the road at the other side of the flower bed. I consider it improbable that the plaintiff, having suffered such a serious injury involving both a cerebral contusion and a large right-sided, life-threatening extradural haematoma, would be able to get to his feet and find his way across or around the flower bed before falling again in that bed or on the road.
Dr. Gilsenan accepted that he could have been thrown there as a result of a vehicle impact but he felt that this was unlikely to have occurred in the absence of evidence of extensive bruising and additionally or alternatively, lower body skeletal fractures. He considered that the bruising in the area of the plaintiff's left hip was consistent with either a vehicle impact or a fall. However, it seems improbable that such bruising would have occurred had the plaintiff fallen backwards as Dr. Gilsenan postulates, striking the smooth surface of the footpath with the top of his spine. Professor Phillips, who was also called in evidence by the defendant, agreed that if the plaintiff had been struck by a mechanically propelled vehicle, he would expect to see other injuries in addition to the skull fracture, such as joint injuries, multiple abrasions and the like. He accepted that the bruising to the plaintiff's left hip area could be classified as such an additional injury. As a result of an application made by Counsel for the plaintiff, prior to Dr. Gilsenan giving evidence, that certain opinions about to be expressed by Dr. Gilsenan had not been put to Mr. Pidgeon and in respect of which there was a serious conflict between these expert witnesses, the Court permitted Mr. Pidgeon to be recalled in evidence. He told the Court that he would expect significant lower body injuries to a victim if the impact with a mechanically propelled vehicle occurred at high speed, but not necessarily if the impact was at low speed. His evidence was the same as that of Dr. Gilsenan, that head injuries of the nature suffered by the plaintiff would not necessarily have to be caused by a direct blow from a vehicle but could equally be caused by a victim being knocked over by the vehicle and striking his or her head on some flat, hard surface. He said that the injuries suffered by Mr. Rogers were quite consistent with his having been struck by a vehicle but that they could also have been caused by a fall.
No mechanism at all was suggested to account for the very particular type of fall described by Dr. Gilsenan, other than to point to the opinion of the various witnesses, that the plaintiff was, to borrow the expression of Mr. Robert McGahan, "stoned drunk". Undoubtedly the plaintiff had consumed a considerable quantity of Guinness. However, I have already found, for the reasons stated, that this had not rendered him incapable of proper speech and had not deprived him of effective control of his movements. The absence of any signs of blood or serious injury, together with the fact that he had drink taken, appeared dirty, dishevelled and had vomited, unfortunately, in my view, concealed from persons who saw him at the Maxol Service Station, the fact that the plaintiff had suffered a most serious head injury. On his admission to Louth County Hospital later that morning he was found to be drowsy, confused, vomiting, with left sided weakness and eye opening to speech. It is a reasonable inference that these symptoms were also present when the plaintiff was lying on the ground in the vicinity of and subsequently on the forecourt of the Maxol Service Station. It was not suggested during the course of the evidence that the plaintiff had slipped on oil or grease or any other substance. In these circumstances the Court must ask the question why this plaintiff, having progressed to this point of his accustomed journey home, should suddenly suffer such a helpless and catastrophic fall in a particularly open, straight and level area.
This combination of circumstances taken together, without any reference to the evidence of Sergeant Piper, supports, in my judgment, the recollection of the plaintiff as to what had occurred to him. On the balance of probabilities I am satisfied that this plaintiff was struck by a mechanically propelled vehicle which was driven on the public footpath and that this unknown vehicle was therefore driven by the untraced driver in a negligent manner.
The plaintiff was taken by ambulance from his home to the casualty department of Louth County Hospital. He was there seen by Ursula Mulcahy, a Consultant Surgeon. He was conscious, although confused and was not moving his left side. He had a Glasgow Coma Score of 15 over 15. Surgeon Mulcahy considered that the Plaintiff was suffering from a head injury or a stroke and he was dispatched by ambulance to Beaumont Hospital in Dublin.
At Beaumont Hospital, skull x-rays revealed bi-lateral tempero parietal skull fractures. Dr. Gilsenan, who examined the x-ray prints, told the Court in evidence that in his opinion the base of the skull was also involved and Mr. Pidgeon did not disagree with this opinion. A C.A.T., scan showed a bruising of the right frontal lobe of the brain and a small bruise to the left tempero parietal area. The plaintiff was shown to have a large clot on the right side between the skull and the covering layers over the brain causing a significant mass effect. This was an extremely serious and life threatening condition.
Emergency surgery was carried out by Mr. Pidgeon and his Team which on the evidence of Betty Rogers ended at about midnight on the 27th of May, 1996. Professor Philips acknowledged that this surgery was so skilful, that it not alone saved the life of the plaintiff but enabled him to make a remarkably successful recovery. After the surgery the plaintiff's condition gradually improved and he was transferred back to Louth County Hospital on the 2nd June, 1996, alert but still confused. He still had some mild weakness down the entire of his left side and was incontinent. He was also slightly anaemic because of a stomach bleed which Mr. Pidgeon explained to the Court was an unavoidable side effect of the drug regime used during the course of the operation at Beaumont Hospital. The plaintiff's recovery continued and on the 14th June, 1996 he was transferred to a respite bed in St. Oliver's Hospital which the Court was told is the convalescence section of Louth County Hospital.
By the 18th July, 1996, Surgeon Mulcahy considered that the plaintiff was sufficiently recovered to be fit to return to work within a few weeks. At that time he complained of light headiness but had no headaches. When seen again by Surgeon Mulcahy on the 30th September, 1996, the plaintiff reported that he had no problems in the weeks since his discharge except a slight loss of appetite. She noted that he had a surgical scar on the right side of his scalp. During the course of the hearing I examined this scar: it is well hidden in the plaintiff's hair, it is not visible except on close examination and is not a cosmetic blemish.
The plaintiff was reviewed at Mr. Pidgeon's out-patient clinic on the 14th October, 1996. He was found to be alert, oriented and with no focal or lateralising neurological signs in his cranial nerves or in his upper or lower limbs. On that occasion he had no complaints and was anxious to return to work. He was advised not to drive or to work with heavy machinery until 18 months had elapsed from the 27th May, 1996. In the opinion of Mr. Pidgeon, the risk of the plaintiff suffering post-traumatic epilepsy was less than 5% and he advised that this would to drop to 1% if the plaintiff remained fit free for a period of three years following the 27th May, 1996, which has in fact occurred. Mr. Pidgeon advised that although the plaintiff did not complain of any intellectual difficulty, it might be prudent to obtain a report from a psychologist as the particular type of head injury which the plaintiff had suffered often gave rise to memory, intellectual and personality problems. The plaintiff returned to work in November, 1997. The plaintiff was next seen by Mr. Pidgeon on the 28th February, 1999. On that occasion he complained of some discomfort over the surgical scar and of headaches for which he occasionally took Panadol. The plaintiff said he had noticed some slight unsteadiness in his gait with some vertigo and was slightly forgetful. He was unable to use ladders and was nervous in traffic. He had no recall of being in Beaumont Hospital but could recall being in Louth County Hospital after his return from Beaumont Hospital. Mr. Pidgeon expressed the opinion that the duration of the post-traumatic amnesia indicated was of sufficient length to classify the degree of injury to the plaintiff's head as severe. He considered that the plaintiff had made a relative good recovery. In his opinion the problems which the plaintiff was experiencing with forgetfulness was consistent with the injuries to his head and would be unlikely to improve with time. In his opinion the headaches and vertigo would settle with time, the latter over a period of up to five years from the 27th May, 1996.
The plaintiff was seen by Surgeon Mulcahy on the 23rd August, 1999. On that occasion he complained of suffering headaches, twice or three times a week which on average lasted for one hour and were relieved by Panadol. He described being unsteady on his feet but Surgeon Mulcahy considered that this was due to a lack of confidence in carrying out such tasks as climbing ladders. The plaintiff continued to complain of nervousness in traffic and said that his appetite was very poor. Surgeon Mulcahy considered that the plaintiff was suffering from short term memory problems and had symptoms of post-traumatic stress disorder. The plaintiff was seen on behalf of the defendant by Dr. Sean Murphy, a Consultant Neurologist on the 6th October, 1999. Apart from the matters noted by Surgeon Mulcahy, the plaintiff said that he was extremely nervous and felt "like a wreck". He said that the headaches were diminishing in severity and frequency with time. He had no problems with smell or hearing. He said that he had difficulty sleeping and became agitated rather easily. Dr. Murphy concluded that the plaintiff had made a very good recovery from a significant head injury and that the prognosis for ultimate total recovery was excellent. At that point, he felt that the risk of the plaintiff suffering epilepsy had returned to that of the general population.
The plaintiff was next seen by Mr. Pidgeon on the 4th December, 1999. On that occasion he complained of some difficulty with headaches and vertigo and he felt that his general confidence had deteriorated. He said that on occasions he had difficulty in riding a bicycle due to the vertigo. Neurological examination was entirely normal. Mr. Pidgeon, as previously, considered that the headaches, vertigo and discomfort over the surgical scar area would resolve with time. He noted that the plaintiff did not complain of forgetfulness. Mr. Pidgeon next examined the plaintiff on the 12th January, 2000. He found no neurological abnormality and noted only the presence of a surgical scar. On the 14th October, 2000, the plaintiff was examined by Professor Philips at the request of the defendant. Professor Philips found the plaintiff to be fully alert and orientated with a pleasant personality but with some evidence of a low grade anxiety state. Neurological examination did not reveal any definite abnormality. The plaintiff complained that he was periodically out of work because of anxiety and loss of confidence. He said that if in the course of his gardening work he was obliged to climb a ladder, he felt very nervous and also felt nervous in the vicinity of motor cars. He said that he still suffered occasional headaches. Professor Philips noted that that the plaintiff constantly touched the area of the surgical scar on the right side of his head. Professor Phillips considered that the plaintiff had suffered a serious head injury with prolonged post-traumatic amnesia. In his opinion the plaintiff had made a remarkably good recovery following the operation carried out by Mr. Pidgeon and that there was no objective clinical evidence of a subsisting brain injury other than what appeared to be a mild anxiety state. He felt that there were no physical reasons why the plaintiff could not carry out his work as a gardener employed by the County Council. He noted that the plaintiff was not attending a psychiatrist or a psychologist. The plaintiff told him that he socialised occasionally with friends but spent most of his free time at home listening to the radio. He was not taking any medication other than tablets occasionally for headaches. Professor Phillips felt that the plaintiff was fully physically independent but that his work activities were somewhat limited by his anxiety state which prevented him from ascending ladders. In his opinion the plaintiff would not suffer any further complications in the future as a consequence of his head injury.
Mr. Pidgeon saw the plaintiff on the 3rd November, 2001, for the purpose of preparing a Medico-Legal Report. The plaintiff told him on that occasion that he still had vertigo. He said that he had been away from work for the previous twelve months because he seemed to be doing everything wrong at work. He still complained of headaches at a frequency of two per week, each lasting about half an hour and treatable by Panadol. Mr. Pidgeon now noted a diminution in the plaintiff's sense of smell, which had been previously intact. He also noted a slight disinhibition in the plaintiff's personality. Mr. Pidgeon concluded that the vertigo, in view of the length of time for which it had persisted, was unlikely to clear up fully and that this would preclude the plaintiff from working at heights or with dangerous machinery. Noting that the plaintiff appeared slightly disinhibited and that his initial complaint of forgetfulness was followed by a loss of confidence followed by a complaint of having work difficulties, Mr. Pidgeon advised that it would be prudent to obtain a psychologist's report in order to quantitate any intellectual difficulties. He considered that the discomfort suffered by the plaintiff in the area of the surgical scar was likely to persist into the future.
On the 13th March, 2002 and the 24th April, 2002, Mr. Rogers was assessed by Dr. Martina O'Connor-McEnroe, a Clinical Neuropsychologist. She found evidence of a memory deficit in situations where the plaintiff was presented with a lot of information which overloaded his attentional ability which she felt was also impaired. She considered that he would find difficulty in coping with crowds and noisy environments, have difficulty in moving smoothly between tasks and have difficulty in engaging in extended mental effort. Dr. O'Connor-McEnroe was of the opinion that the plaintiff would have difficulty in recalling everyday events and situations relating to people and places, such as where he had left keys and forgetting appointments and commitments. Ms. Rose Waters told the Court that the plaintiff had reproved her for not informing him that an acquaintance had died even though she and he had attended that person's funeral. Dr. O'Connor-McEnroe advised that the memory deficit interfered with the plaintiff's ability to carry out manual tasks rapidly and limited his ability to plan, organise and solve problems.
She considered that the irritability and lower frustration tolerance of which the plaintiff complained and which were remarked upon by Ms. Waters in her evidence, were common sequelae of the sort of head injury which the plaintiff had suffered. In her opinion, these problems would diminish with time as would the plaintiff's problem with fatigue, though he might never regain his pre-27th May, 1996 stamina. She concluded that the plaintiff was suffering from attention, memory and behavioural deficits, and this was fully consistent with the known effects of a significant head injury and, in the light of the length of time that had elapsed since the 27th May, 1996, these problems were unlikely to improve significantly in the future. She felt that the plaintiff's coping skills had been compromised as a result of the head injury sustained, resulting in character changes which were adversely affecting his personal and family life and his involvement in social activities. Ms. Rose Waters told the Court that prior to the 27th May, 1996, the plaintiff was a happy, carefree person who loved fun and chat and was a keen follower of Gaelic Football. The plaintiff himself told the Court that prior to his head injury he spent a lot of time helping at the local Gaelic Athletic Association grounds and going to football matches but he had lost all interest in that now. This was corroborated by the evidence of Betty Rogers. Both Ms. Waters and Betty Rogers told the Court there had been a change in the plaintiff since the incident. He was less jolly and became agitated easily. Ms. Waters told the Court that the plaintiff was unable to cope with music in licensed premises. His sister said that prior to the 27th May, 1996, the plaintiff frequently watched and listened to football on the television and radio but now seldom did either. Betty Rogers said that she felt that he was improving over the last two years and had started to get back to helping at the local Dowdall's Hill G.A.A. Club. Ms. Waters told the Court that the plaintiff was very nervous while travelling in her car and constantly criticised her driving.
The plaintiff was assessed by Dr. James Maguire, a Consultant Psychiatrist, on the 7th January, 2003 on the recommendation of Dr. O'Connor-McEnroe. He concluded that much of the symptoms of which the plaintiff complained were consistent with what one would expect following significant cerebral trauma, e.g. periods of depression, irritability, a tendency to be easily frustrated, sleep disturbance, and difficulties with short-term memory. He considered that the long-term prognosis in respect of the plaintiff was poor and he would not expect any further improvement in his condition, in view of the length of time which had elapsed since the 27th May, 1996. Dr. Maguire considered that the plaintiff would not benefit from any psychotropic intervention. He described the plaintiff's short-term memory difficulties as 'significant'. He said that the plaintiff had no long-term memory loss. Dr. O'Connor-McEnroe told the Court that in her opinion, the plaintiff was fully fit to carry on with his pre-incident work but should not drive any sort of vehicle or machine. She considered that the various problems which she had identified would not impact so much on the plaintiff, having regard to his work and lifestyle.
Finally, the plaintiff was seen by Professor Phillips at the behest of the defendants on the 26th February, 2003, for the purpose of providing a follow-up Medico-Legal Report. The plaintiff told him that his headaches were then minimal but that he continued to be anxious when travelling on roadways. Professor Phillips did not notice any overt evidence of anxiety or of personality change in the plaintiff. He found no abnormalities on examination of the plaintiff other than the site of the surgical scar on the right side of his head, which he considered to be a minor associated cosmetic defect. He considered that the plaintiff had a chronic low grade anxiety state related to the incident, which made him nervous when travelling on the roadway or in the vicinity of motor cars, and that this anxiety state was likely to persist. He considered that Mr. Rogers was particularly well motivated and disposed towards his recovery. Professor Phillips concluded that the long-term prognosis was satisfactory and that further neurosurgical assessment was not required. The plaintiff is now 58 years of age, having been born on the 4th November, 1945. He continues to be employed in the landscape and gardening department of the County Council. No claim is made for any past or future loss of income in this case.
To compensate him, so far as money can for the pain, distress, suffering and loss of the ordinary amenities of life which he has endured since 27th May, 1996, a period of seven and half years, while at the same time acting reasonably and with due regard to the rights of the defendant, the Court will award the plaintiff the sum of €72,000. For future pain, discomfort, and interference with his enjoyment of life, the Court will award the plaintiff the sum of €40,000. Special damages are agreed in the sum of €8,700. I will direct that judgment be entered for the plaintiff in the sum of €120,700.