High Court of Ireland Decisions
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URL: http://www.bailii.org/ie/cases/IEHC/2004/147.html
Cite as: [2004] IEHC 147
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Lyden v. McBreen & Anor [2004] IEHC 147 (30 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/147.html Cite as: [2004] IEHC 147 |
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HC 277/04
NO. 2001/16113 P
BETWEEN
PLAINTIFF
DEFENDANTS
JUDGMENT of Mr. Justice Diarmuid B. O'Donovan delivered on the 30th day of July, 2004
The plaintiff in this case, Rosaleen Lyden, is a married lady now nearly 52 years of age, having been born on the 7th day of August, 1952. She resides with her husband, who is a taxi driver, at Shercock, Co. Cavan, and they have four children ranging in age from 32 years to 16 years.
Prior to the events which gave rise to this claim, Rosaleen Lyden was, as they say, a lady of many parts. She operated a Bed & Breakfast business from her home, did some part-time taxi work and, generally speaking, lead a very active life, in that, she was accustomed to walking five miles a day and, indeed, in the relatively recent past participated in a number of mini-marathons. She played indoor bowls, had an interest in the theatre and had just completed an exam which entitled her to receive an international transport licence which entitled her to manage a transport business which it was intended that her husband was going to operate.
Rosaleen Lyden comes to court seeking damages for injuries which she suffered in a traffic accident in which she was involved, through no fault of her own, on the public highway near Kings Court in the Co. of Cavan on the 9th day of June, 2000. On that day, while driving her own car, Mrs. Lyden was confronted by two oncoming cars which approached her side by side; one of them being on her side of the road; in other words on its incorrect side of the road. As the two cars approached, Mrs. Lyden noticed that the respective drivers were looking at each other rather than at the road in front of them and, accordingly, to get out of the way of the car which was on her side of the road, she pulled into the left and stopped. However, notwithstanding that manoeuvre, her car was struck violently by one of the oncoming cars which, apparently, was also in collision with the other oncoming car and the end result was that all three cars were so badly damaged that they had to be written off. One of the consequences of the collision was that Mrs. Lyden was struck on the right side of her face by the wing mirror of her car. Not surprisingly, the defendants have admitted liability for the above occurrence and Mrs. Lyden's claim proceeded as an assessment of damages only.
Mrs. Lyden told me that, quite understandably, she was very shocked by what had happened and, indeed, so shocked that she vomited and soiled herself and was so embarrassed by her condition that she asked her husband, who had been called to the scene, to take her home to clean herself up rather than attending a doctor. However, shortly afterwards, she became conscious that the right side of her face was very painful, that some of her teeth were loose, that her vision was blurred and that she had double vision, that she experienced dizziness and pains in her head and experienced pain in her neck, shoulders, chest, lower back, right knee and right ankle. She said that she was very upset and had the feeling that there was something in her eye though, subsequently, she was referred to the Eye & Ear hospital where she was examined by an eye specialist who, apparently, advised her that she had not suffered a serious injury to her eye and who prescribed drops which, apparently, had the effect of settling down the symptoms which she had been experiencing in her eyes. Nevertheless, for some time after her accident, she experienced blurring in her right eye and what she described as "electric shocks" in the eye which persisted for some time. Other sequelae of her injuries of which Mrs. Lyden complained were headaches and shooting pains in her jaw. She said that the pain in her back radiated into her right knee and right ankle and that the pain in her neck radiated into her arms. She complained that her hair fell out; that she became nervous and afraid to drive a car and very depressed. Furthermore, she experienced nightmares, flashbacks of her accident and was given to bouts of crying.
On the day following her accident, Mrs. Lyden attended her general practitioner, Dr. Kieran McMahon, who prescribed painkillers and, thereafter, Mrs. Lyden has been referred, as I calculate, to some twelve medical specialists, including an orofacial pain specialist, two chronic pain specialists, a rheumatologist, an orthopaedic surgeon, two psychiatrists, two physiotherapists, a psychologist and a rehabilitation consultant. These specialists have initiated and prescribed a variety of treatments and medication to which Mrs. Lyden has been subjected during the last four years; treatment which included:
(a) painkilling medication, antidepressant medication, anticonvulsant medication, sleeping tablets and medication to counter stomach problems associated with the ingestion of the other medication, (as I interpret her evidence, even to the present day, Mrs. Lyden continues to avail of most, if not all of that medication),
(b) the use of a bite splint to counter the problems with her left jaw,
(c) a vast amount of physiotherapy, (sometimes as frequently as two to three times a week), which was extremely painful, with an obligation to perform home exercises prescribed by her physiotherapist,
(d) painkilling injections administered by her G.P., by Dr. Dermot Canavan, the orofacial specialist and by Dr. Hugh Gallagher, one of the pain specialists, who treated her, (the injections administered by Dr. Gallagher included Stellate Ganglion Blocks to the neck which, according to the plaintiff, were extremely painful),
(e) The use of durogesic patches, which she uses frequently
and
(f) The attendance at a pain management programme.
In addition, she has attended 55 sessions of counselling by Ms. Joan Clinton, her psychologist and has travelled from Shercock to Dublin on 82 occasions to visit the several doctors, who she was attending. Notwithstanding all that medical attention and all that treatment, Mrs. Lyden told me that she continues to experience all of the problems which she experienced in the immediate aftermath of her accident. While some of the treatments to which she was subjected have given her short-term relief, it has not lasted and, at the present time, she claims that the pain which she experiences as a result of the injuries which she says that she suffered as a result of the road traffic accident in which she was involved on 9th June, 2000 is no less today than it was in the aftermath of that accident.
In addition to the evidence of the plaintiff with regard to the problems which she has experienced since her accident, I have been furnished with a vast number of medical reports from the several doctors and other quasi medical personnel, who have attended and treated Mrs. Lyden since her accident. In addition, I have heard evidence from one of her pain specialists, Dr. Declan O'Keeffe, from her orofacial pain specialist, Dr. Dermot Canavan, from one of the psychiatrists who attended her, Dr. Patrick M. Kelly, from her counselling psychologist, Ms. Joan Clinton and from her orthopaedic surgeon, Mr. Owen Barry F.R.C.S.I. In addition, I heard evidence from Mr. Jack Phillips F.R.C.S.I, a consultant neurosurgeon, who examined the plaintiff on behalf of the defendants. It is not necessary, in my view, for the purpose of this judgment, that I review in detail all of those medical reports or, indeed, all of the viva voce evidence which I heard from those doctors. It is sufficient to note that, as I interpret the medical evidence, the views expressed by the several doctors, who have treated this plaintiff are essentially based on an acceptance by them of the accuracy of her description of the symptoms which she is experiencing. Certainly, there were objective findings which support some of the plaintiff's complaints, in particular, MRI scans of her neck and lower back manifested degenerative changes which, while in the view of Mr. Barry they antedated the plaintiff's accident, had been asymptomatic and, accordingly, as I interpreted Mr. Barry's evidence, the plaintiff's complaints with regard to her neck and back indicate that those changes have been aggravated by the trauma of her accident with the result that they have become symptomatic and while, irrespective of the accident, those degenerative changes might well have become symptomatic some time in the future, the onset of the symptoms which Mrs. Lyden is currently experiencing in her neck and back were accelerated by her accident. It was also suggested; in particular by Dr. O'Keeffe, that the fact that the plaintiff's body moved in response to pressure at particular points (points which Dr. O'Keeffe described as tender points) and that Dr. McCarthy, the plaintiff's rheumatologist expressed the view that she manifested physical de-conditioning, which, apparently, is a loss of muscle bulk and weakness, were objective signs supporting the symptoms of which the plaintiff complained. However, while I have no reason to doubt that, when she examined the plaintiff, Dr. McCarthy found that she was suffering from physical de-conditioning, I am not persuaded that tender points are an objective manifestation of physical injury because, as I understand it, the diagnosis that a person is suffering from tender points merely means that they react to complaints of pain when pressure is exerted to certain parts of their anatomy. In my view, that is a subjective complaint because no one but the person on whom such pressure is exerted can say that it causes pain and, therefore, the diagnosis of pain is totally dependant on the say so of that person. In this regard, Mr. Phillips, who examined the plaintiff on behalf of the defendants on a number of occasions, was firmly of the view that she manifested no evidence of physical injury. Indeed, he described her as walking briskly without apparent discomfort and he said that the fact that her muscles were soft, which I assume is the de-conditioning adverted to by Dr. McCarthy, was due to inactivity. As I interpreted Mr. Phillips evidence, while he was not prepared to say that Mrs. Lyden was imagining the symptoms of which she was complaining, it was his view that they were more in her mind than in her body. However, Mr. Phillips did accept that the plaintiff had pre-existing degenerative changes in her neck and lumbar spine which, while he maintained that those changes had not been advanced by any injury which she suffered as a result of the incident which gave rise to this claim, he conceded that they could have given rise to the symptoms in her neck and back of which she subsequently complained. In this regard, I think it is significant that Dr. Canavan conceded that there were no independent objective signs which supported the complaints of pain which Mrs. Lyden made to him and that, therefore, when making his diagnosis, he was entirely dependant on what Mrs. Lyden had told him. However, he was satisfied that, as far as she was concerned, the symptoms of which she complained were genuine and real and he did not believe that she was trying to mislead him in any way.
In the light of the foregoing, I am persuaded that there is a physical reason for the complaints which Mrs. Lyden makes with regard to her neck and back i.e. that pre-existing but asymptomatic degenerative changes in those areas were aggravated by the trauma of her accident and, as a result, have become symptomatic. However, I am not persuaded that there is a physical reason for the vast majority of the balance of the ongoing complaints which she makes. Moreover, in the light of the evidence of Mr. Phillips in that behalf, I am not convinced that Dr. Geraldine McCarthy's diagnosis; a diagnosis which, incidentally, is supported by Dr. O'Keeffe, that the plaintiff is suffering from a condition known as fibromyalgia is well founded; i.e. insofar as it is suggested that that condition is based on physical injury. In my view and, again, I am influenced by the evidence of Mr. Phillips in that regard, what Dr. McCarthy and Dr. O'Keeffe are calling fibromyalgia are pains which have a psychological rather than a physical basis and are precipitated by stress which the plaintiff has experienced over the last four years. In this regard, I am satisfied by the evidence of Dr. Kelly and that of Dr. James Maguire that Mrs. Lyden is, indeed, stressed and I accept that that stress is, in part, attributable to the problems which she is experiencing in her neck and back due to the aggravation of the pre-existing degenerative changes in those areas. However, it seems to me that that stress must also be related to her experiences at the hands of the medical profession for the last four years. Indeed, while, naturally, no doctor ever said so, it is my belief that Rosaleen Lyden is, to some extent, at least, a victim of the medical profession. As I have pointed out, the physical manifestations which support her ongoing complaints of pain are relatively minimal. Yet, over the last four years, she has been sent from doctor to doctor and has been subjected to a variety of painful treatments and filled with a cocktail of drugs; all, if one believes Mrs. Lyden, to no good end because, as I have indicated, she maintains that, despite everything, she is now no less symptomatic than she was in the immediate aftermath of her accident. No wonder; given what she has had to put up with for the last four years, she is stressed. However, apart from the ongoing problems in her neck and back of which she complains, I am not persuaded that the balance of the pains of which she complains are related to the result of any physical injury which she suffered, and I cannot accept, as I interpret to be the views of Dr. O'Keeffe and Dr. Canavan, that Mrs. Lyden has chronic pain which can never be cured but can be controlled to the extent that, with appropriate therapy, she will be able to cope with it. In other words, that she will learn to live with her pain. I prefer the view of Dr. Maguire that one would expect ultimate resolution of Mrs. Lyden's problems which; a view which to some extent was supported by the views of Dr. Kelly although Dr. Kelly seemed to think that some of Mrs. Lyden's psychological problems will persist for a long time to come. In this regard, Mrs. Lyden impressed me as someone who thinks of nothing else but the problems which she believes are attributable to the accident in which she was involved four years ago. However, like Mr. Phillips, although I watched her carefully throughout the hearing of this action, she did not present to me as someone who is in physical pain although she undoubtedly presented as someone who is very stressed. Rightly or wrongly, however, I believe that, when the trauma of these proceedings is over, she will make a gradual improvement and, ultimately, a very good recovery. This is not going to happen overnight and it may well be that she will experience ongoing problems with her neck and back for the rest of her days although, as Mr. Barry indicated, that could have happened irrespective of any accident. Nevertheless, I am persuaded that, in the not to distant future, Rosaleen Lyden will be able to lead a relatively normal life and that, to a large extent, she will be relatively free of pain and freed from the psychological problems which currently trouble her.
In the light of the foregoing and taking into account all that the plaintiff has had to put up with during the last four years including, her inability to take physical exercise which resulted in her putting on a stone weight, her inability to run her Bed & Breakfast operation, her inability to drive because she was forbidden to do so on account of the medication which she was taking and, generally speaking, her inability to live a normal life, I will allow a sum of €50,000.00 for general damages. As for the future, allowing that, while I believe that, in the long term, the plaintiff will become relatively asymptomatic although, as I have indicated, I think that there is a likelihood that she will always have some problems with her neck and back, I accept that this will be a gradual process and, accordingly, I think that an appropriate sum for general damages in the future would be another €50,000.00. Insofar as special damages are concerned, the parties are agreed that Mrs. Lyden is entitled to a sum of €8,122.00 in respect of expenses legitimately incurred to date. In addition, however, she is claiming a sum of €2,789.00 in respect of fees claimed by Dr. Hugh Gallagher, €1,982.00 in respect of fees claimed by Dr. Canavan and €5,500.00 in respect of travelling expenses. While accepting that, in fact, the plaintiff may be liable for those fees and that she did incur a sum of €5,500.00 in respect of travelling expenses, the defendants protest their liability to discharge those matters on the grounds, as they maintain, that no useful purpose was served by much of what Drs. Gallagher and Canavan did for Mrs. Lyden and that very many of the trips which she made to Dublin for medical treatment were unnecessary. I accept that Drs. Gallagher and Canavan achieved very little insofar as their treatment of the plaintiff was concerned. At least, she does not think that they did her much good. I also accept that she seems to have got very little benefit from all the trips which she made to Dublin. However, the reality of the matter is that it was not Mrs. Lyden who chose to attend Drs. Canavan and Gallagher. She was referred to them by members of the medical profession. Neither was it Mrs. Lyden's decision to attend Drs. Canavan and Gallagher as frequently as she did. That was done at their insistence. Moreover, it was not Mrs. Lyden's decision to attend medical appointments in Dublin as often as she did. Again, that was the decision of her doctors. Accordingly, it seems to me that she reasonably acquiesced in all that was required of her by her doctors and that all of that flowed, whether justifiably or not, from the fact that she was involved in the traffic accident which gave rise to this claim through no fault of her own. Accordingly, I do not think that she should be punished by having to pay for doctors or by having to incur travelling expenses which arose through no fault of hers. I will therefore allow the fees claimed by Drs. Canavan and Gallagher and the travelling expenses of €5,500.00 claimed by the plaintiff.
Although, in the course of the hearing, counsel for the plaintiff endeavoured to pursue a claim for loss of opportunity on behalf of the plaintiff; a claim which was vigorously opposed by the defence, in the circumstance that no claim in that behalf was made on behalf of the plaintiff before the hearing, I am not disposed to allowing any damages under that heading.
In the light of the foregoing, there will be judgment for the plaintiff for €118,393.00 and costs.