THE SUPREME COURT

Keane J
Murphy J
Lynch J

97/98
BETWEEN
MARY CURRAN
Plaintiff/Appellant
and

JOHN FINN
Defendant/Respondent
[Judgments by all 3 Judges]

JUDGMENT delivered on the 20th day of May 1999 by LYNCH J.

This is an appeal on damages by the plaintiff/appellant from an order of the High Court (O’Donovan J.) made on the 27th March 1998

(2)

whereby the learned trial judge found that the defendant/respondent was 100 per cent negligent and liable accordingly to compensate the appellant in respect of a fall which she suffered on the 9th of March 1993 in the respondent’s shop premises in Cork. The learned trial judge assessed damages at £100,000. There is no cross-appeal by the respondent on the issue of liability and consequently the issue on this appeal is as to the adequacy of the damages awarded to the appellant. As to the issue of the adequacy of the damages in the sum of £100,000 the only real point is whether or not a condition of multiple sclerosis which the appellant had developed over a year before the accident was aggravated and progressed by the accident as a result of which the appellant became wheelchair bound and in a very helpless and pitiable condition within a year of the accident. The learned trial judge found that the aggravation and progression of the appellant’s multiple sclerosis was not associated with

(3)

the accident. The appellant accepts that if the aggravation and progression in her multiple sclerosis was not associated with her accident of the 9th of March 1993 then the sum of £100,000 was adequate, if not indeed generous, compensation in respect of the undisputed injuries which the appellant in fact suffered in that accident.

THE FACTUAL BACKGROUND

The appellant was born on the 27th of December 1955. She is a married lady living in Blarney, Co. Cork with her husband and three children, the youngest of whom was born on the 4th of December 1989 and was therefore 3¼ years old at the date of the accident. The appellant led a full and active life up to the latter end of 1991 when she developed a sensation of stiffness in the legs and pins and needles. From November 1991 the appellant attended her general practitioners, doctors John and

(4)

Bernie O’Riordan (a husband and wife medical partnership) and in March of 1992 she was referred to Dr. Noel Callaghan, a well-known Cork neurologist.

On the 13th of April 1992 (eleven months before the accident of the 9th of March 1993) the appellant was admitted for the first time to Cork Regional Hospital for investigation of her complaints of various sensory disturbances which were subsequently diagnosed as attributable to the onset of multiple sclerosis. No issue arose as to the correctness of this diagnosis, but the hospital admission notes of that day setting out her complaints as of that time were very important in so far as they gave a description of the extent to which the disease had progressed eleven months before her accident.

During her detention in Cork Regional Hospital at that time the appellant was under the care of Dr. Noel Callaghan and she was

(5)

discharged after a week during which time various tests had been carried out and thereafter she resumed her normal lifestyle up to the time of the accident. She was at the end of 1992 and into 1993 no longer visiting her general practitioners but she was seen socially by Dr. John O’Riordan around the neighbourhood where they both lived and he verified that she appeared to be in good health and reasonably active during that year or so. On the 9th of March 1993 the appellant called into the respondent’s shop to make a purchase having with her youngest child of 3¼ years. When coming out from the shop she was holding her purchases in one hand and her young son with the other hand when her feet shot forward from under her and she fell heavily backwards onto her buttocks and flat on her back hitting the back of her head off the ground.

The following day the appellant visited Dr. Bernie O’Riordan and thereafter Dr. John O’Riordan. She was back in the Cork Regional

(6)

Hospital in June 1993 and later on again that year and in the Winter of 1993. She had a thoracic disc operation on the 25th of January 1994 and thereafter she was detained for some ten months or so in hospital. Ever since the end of the year 1993 the appellant has been largely wheelchair bound and totally dependent on others to look after her.

In the course of her medical care up to the time of the trial of this action the appellant was treated for various aspects of her condition by a total of some seven or eight doctors - the most notable being Dr. Callaghan the neurologist and Mr. Marks the neurosurgeon who performed the thoracic disc operation. Only one of these treating doctors was called to give evidence on behalf of the appellant. Dr. Callaghan was indisposed but a commission to take his evidence was ordered and assembled but neither party was willing to call him as their witness and consequently he gave no evidence. The only treating doctor called on behalf of the

(7)

appellant was one of the general practitioners namely, Dr. John O’Riordan.

Numerous other doctors were called on behalf of the appellant. These were doctors who had read the medical and hospital documentation and then examined the appellant and offered expert opinions as to the association of the progression of the multiple sclerosis with the accident of the 9th of March 1993. The medical witnesses called on behalf of the respondent gave their evidence on a like basis but the contrary effect. The appellant’s experts said that the pre-accident symptoms of her multiple sclerosis were sensory symptoms not motor symptoms and were therefore benign and if it were not for the fall she would probably never have been seriously disabled. The respondent’s experts accepted that the pre-accident symptoms of the appellant were sensory but they did not accept that this meant that the multiple sclerosis was a benign form: on the

(8)

contrary they said that the progression which had occurred was a usual course for the disease to take and that the accident had nothing to do with it and moreover that there never is an association between trauma and multiple sclerosis.

There was ample evidence to support a finding by the learned trial judge either way namely, that the aggravation and progression of the multiple sclerosis was or was not attributable to the appellant’s fall in the respondent’s shop on the 9th of March 1993. The learned trial judge found that the aggravation and progression of the appellant’s multiple sclerosis was not in fact attributable to the accident.

In this context the appellant’s admission notes to Cork Regional Hospital on the 13th of April 1992 (eleven months before the accident) become crucial. The appellant was admitted under Dr. Callaghan. The admission notes were in manuscript made by a junior doctor and the notes

(9)

used various signs and hieroglyphics to indicate the presence or absence of complaints or symptoms. The learned trial judge quoted these manuscript notes but the appellant says that he misquoted them and that he attributed complaints and symptoms to her which were in fact negatived by the notes. This led the appellant’s legal advisors to bring a motion to the Supreme Court to admit further evidence in the form of an affidavit sworn by Dr. Callaghan on the 26th of April 1999 and containing a translation of the admission notes of the 13th of April 1992. Counsel for the respondent very properly did not object to the admission of this affidavit because he accepted that Dr. Callaghan’s typed translation is correct.

The relevant part of those admission notes comprise the appellant’s complaints on admission to the Regional Hospital on the 13th of April 1992 and they read as follows:

(10)

“Present complaints:

Elective admission for investigation of abnormal sensation in back and lower limbs. History of present complaints.

Before birth of second child developed low back pain about seven years ago with pain radiating in the right lower limb - this resolved with bed rest. (NB The plaintiff in evidence said that the reference to her second child should be her third child which would have been a shorter time before). Paraesthesia or hot feeling of lower back radiating down both lower limbs to toes for six weeks. Cold sensation from knees down, dragging left lower limb when walking, and subjective weakness and stiffness of lower limbs. Has no sphincter disturbance. Has subjective weakness of left upper limb.
Has no numbness or paraesthesia of upper limb.
Has no headaches.
Has no convulsions
Has normal eyesight.

(11)

Has normal hearing
Has no tinnitus.
Has no vertigo.”

The portion of the above admission notes which I have underlined are those which the appellant says were misquoted by the learned trial judge.

The learned trial judge delivered a very careful judgment in which he reviewed in detail all the evidence. At p. 14 of his judgment he considers the appellant’s condition on her admission to hospital on the 13th of April 1992 as follows:

“The hospital notes from the Cork Regional Hospital on the plaintiff’s admission on the 13th April 1992 indicated that, at that time, she was complaining of paraesthesia and a ‘hot feeling’ of her lower back radiating down both lower limbs to her toes and that these symptoms had been present for the previous six weeks. They also indicate that

(12)

she was complaining of a cold sensation from her knees down, that she dragged her left leg when walking, and that she had weakness and stiffness of both lower legs. She was also complaining of numbness and paraesthesia of her upper legs and of headache, convulsions, problems with her eyesight and hearing, tinnitus and vertigo which suggests to me, that at that time, from a symptomatic point of view, the Plaintiff was in a very poor condition. It was unfortunate that Dr. Callaghan was not available to give evidence with regard to the implications of these multitudinous complaints. For his part, Dr. O’Riordan gave evidence that he did not attend the Plaintiff professionally from the month of April 1992 until after her accident in March 1993 and neither did she attend his wife during that period. However, he said that he would have met the plaintiff socially on many occasions throughout the latter part of 1992 and that, on those occasions, she appeared to him to be in very good health which seems to corroborate her own evidence

(13)

that she was back to normal and doing everything that she wanted to do for many months prior to the accident. However, with all due respect to Dr. O’Riordan's powers of observation, I am not convinced that that was so.”

Again in quoting the learned trial judge I have underlined those parts of his judgment which misquote the admission notes. It will be seen that the learned trial judge attributes serious complaints to the appellant from which she was not in fact suffering and which were specifically negatived in the admission notes as translated by Dr. Callaghan. Her complaints on admission were highly relevant to the issue as to whether she was suffering from a benign form of multiple sclerosis or not. The learned trial judge returned to this topic later on in his judgment to be found at p. 27 of the typescript of the judgment and I quote:

“Professor Findley agreed under cross-examination that the symptoms of which the Plaintiff complained

(14)

	in 1992 were similar to those of which she complained following her fall in 1993 but he said that 	after her fall there were changes in her physical manifestation. In this regard, as I interpreted the 	evidence, it seems to have been accepted by all of the medical witnesses, who addressed the subject 	that the symptoms of which the plaintiff complained in 1992, which are the symptoms on which the 	diagnosis that she had developed multiple sclerosis at that time is made, were only of a sensory 	nature and, to that extent, the disease was then benign. If it was, however, as I have already indicated, 	the hospital notes on the plaintiffs admission to Cork Regional Hospital on the 13th April 1992 	indicate, that symptomatically, she was then a very sick woman and I think that it is not without 	significance that, in the course of his evidence, Professor Behan said that he was satisfied that the 	Plaintiff had developed multiple sclerosis in April 1992 and, given the symptoms of which she was 	then complaining, he was surprised that Dr.

(15)

	Callaghan had not diagnosed it at that time. As a layman, I would have thought that the symptoms of 	which the plaintiff was then complaining were indicative of anything but a benign disease and, as I 	have said, I regret that Dr. Callaghan was not available to express his views on the implications of the 	Plaintiff’s symptomatic complaints at that time. However, whatever view I might have, I must accept 	the medical opinion that the symptoms of which the plaintiff was complaining in 1992 were sensory 	only.”

In this passage it seems to me that the learned trial judge virtually rejects the possibility of the appellant’s multiple sclerosis being of a benign nature on the basis of the complaints that she is recorded in his belief as having made on her admission on the 13th of April 1992. Moreover having included convulsions, problems with her eyesight and hearing, tinnitus and vertigo as he did at p. 14 of his judgment these could not be

(16)

sensory only and his acceptance that the plaintiff’s symptoms were sensory only at p. 27 can be no more than a token acceptance.

What a pity that Dr. Callaghan was not called as a witness to give inter alia his evidence as to the meaning of these admission notes instead of having to adduce this evidence by way of an affidavit at the appeal stage only.

I cannot be sure that if the learned trial judge had known that the appellant had no “numbness orparaesthesia of the upper limbs: no headaches: no convulsions: normal eyesight: normal hearing: no tinnitus: and no vertigo” that he would not have associated the progression of her multiple sclerosis with the accident.

In these circumstances I feel that I have no option but to set aside the judgment insofar as it awards £100,000 damages to the appellant and to send the matter back to the High Court for a retrial on all the various issues related to damages.

(1)

JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 20TH DAY OF MAY 1999

This is an appeal against the judgment and order of Mr Justice O'Donovan given and made herein on the 27th March 1998.

The proceedings herein - commenced originally by way of Civil Bill dated the 8th day of February 1995 - arose out of an accident suffered by Mary Curran (the Appellant) on the 9th day of March 1993 whilst shopping in the Respondent’s grocery shop at Coburg Street in the City of Cork. The learned trial Judge held that the accident was caused by the negligence of the Respondent and he awarded her the sum of £100,000 to compensate her for the significant injuries which he concluded had been caused by the accident. However he rejected the Appellant’s contention that the multiple sclerosis from which she had been suffering for approximately one year before the accident was aggravated by the trauma.

(2)

The problems of analysing and reviewing the medical and scientific evidence which may be presented in support of the proposition that trauma may aggravate, and has in a particular case, aggravated the condition of multiple sclerosis has been considered in this Court as recently as the 4th July 1997 (see O'Leary v. Cork Corporation). It is a very troublesome issue indeed. In the present case the task of the learned trial Judge was magnified by the fact that the parties to the litigation - no doubt acting prudently in their own best interests - failed to call expert medical witnesses who had examined and treated the Appellant and were in a position to speak with authority on her medical condition and changes in it at different times. The fact that records and documents prepared by these potential witnesses were put in evidence by agreement did not solve the problem. Indeed it exacerbated it. The facts of this case underscore the dangers and difficulties of examining or analysing documents provided on discovery or put in evidence by agreement without the sworn testimony of the author and his explanation of the records made by him.

Of the many doctors who treated and examined the Plaintiff, Doctor Noel Callaghan, a distinguished neurologist, was perhaps the most important. Apart from his professional expertise he had the advantage of examining the Appellant as far back as March 1992 at a stage when the condition of multiple sclerosis was apparently developing but had not as yet been diagnosed. Doctor Callaghan carried out a variety of investigations and engaged in correspondence with other medical experts in relation to the Appellant’s medical problems. More particularly a series of notes on the occasion of the Plaintiff’s admission to the Cork Regional Hospital on the 13th April 1992 were made under the direction of Dr Callaghan. It appears from the judgment of Mr Justice O’Donovan that Doctor Callaghan was unable to attend court but such was the concern of the trial Judge that he made arrangements in the 

course of the hearing to have the evidence of Doctor Callaghan taken on commission and whilst the Doctor did attend before the Commission both parties declined to call him as a witness. In those circumstances the learned trial Judge was deprived not only of Doctor Callahan’s expertise but he was required to consider the documentary evidence without adequate explanation of its meaning or significance.

The learned trial Judge quoted from the notes prepared for Doctor Callaghan (see page 14 of the transcript) in the following terms:-

“The hospital notes from the Cork regional Hospital on the Plaintiff’s admission on the 13th April 1992 indicated that, at that time, she was complaining of paraesthesia and a “hot feeling” of her lower back radiating down both lower limbs to her toes and that these symptoms had been present for the previous six weeks’. They also indicate that she was complaining of a cold sensation from her knees down, that she dragged her left leg when walking, and that she had weakness and stiffness of both lower legs. She was also complaining of numbness and paraesthesia of her upper legs and of headache, convulsions, problems with her eyesight and hearing, tinnitus and vertigo which suggests to me, that at that time, from a symptomatic point of view, the plaintiff was in a very poor condition. It was unfortunate that Doctor Callaghan was not available to give evidence with regard to the implications of these multitudinous complaints.”

That statement was based on what appeared to reflect the clear terms of the hospital notes but in fact represented a serious misunderstanding of the notation used in those records. The

-3-

Appellant sought leave to introduce by way of further evidence an affidavit of Doctor Callaghan sworn on the 26th April 1999. With the consent of the Respondent that affidavit was admitted in evidence in this Court. What it establishes clearly is that the most serious of the complaints which the learned trial Judge listed as having been made by the Appellant on her admission to hospital did not exist. As Doctor Callaghan explained in his affidavit the symbol “o” was placed in front of many of the words in those notes for the purpose of indicating the absence rather than the presence of the particular symptom. Accordingly the hospital note as revised in accordance with the evidence of Doctor Callaghan should read as follows:-

“Paraesthesia or “hot feeling” of lower back radiating down both lower limbs to toes for six weeks’. Cold sensation from knees down, dragging left lower limb when walking, and subjective weakness and stiffness of lower limbs. Has no sphincter disturbance. Has subjective weakness of left upper limb. Has no numbness or paraesthesia of upper limbs. Has no headaches, has no convulsions, has normal eyesight, has normal hearing, has no tinnitus has no vertigo.” (Emphasis added)

Whilst the statement by the learned trial Judge in his judgment of the symptoms displayed by the Appellant on her admission to hospital in April 1992 is in fact radically different from what the distinguished neurologist intended to convey it does not necessarily follow that this error invalidated the reasoning contained in the judgment.

The Appellant’s medical condition in April 1992 was of importance for two reasons. First it would have been of assistance in determining whether the multiple sclerosis suffered or originally suffered by the Appellant could be classified as “benign” and secondly, an

-4-

alteration in the condition as it existed in April 1992 as compared with April 1993 (or subsequently) was clearly relevant in assessing the effect (if any) of the trauma on the pre-existing condition.

On the first of these issues the misstatement is, I believe, of little consequence. The learned Judge accepted the medical evidence that the multiple sclerosis suffered by the Appellant was benign. He said:-

“As a layman, I would have thought that the symptoms of which the plaintiff was then complaining were indicative of anything but a benign disease and, as I have said, I regret that Dr Callaghan was not available to express his views on the implications of the plaintiff’s symptomatic complaints at that time. However, whatever view I might have, I must accept the medical opinion that the symptoms of which the plaintiff was complaining in 1992 were sensory only.”

In relation to the comparison between the condition of the Appellant before and after the accident the position is less clear. I am confident that all of the doctors who gave evidence must have been aware of the significance of the hospital notes prepared under the direction of Doctor Callaghan and I am also conscious of the fact that in drawing comparisons between the post and pre accident condition of the Appellant the learned trial Judge expressly referred to “the sensory nature” of the symptoms exhibited prior to the accident.

It may well be that the learned trial Judge was not misled by the passage which he purported to quote from hospital notes. Indeed it would seem clear that if the symptoms which he ascribed to the Appellant in April 1992 had existed they would have indicated not merely the 

-5-

existence of multiple sclerosis but multiple sclerosis of a particularly malignant character; a conclusion which the Judge had rejected.

However, I do not think that it would be reasonable to expect any litigant to accept that the unfortunate error recorded in extenso in the judgment played no part in the conclusion ultimately reached by the Judge even if a careful analysis of the judgment might support that conclusion.

In my view the otherwise thoughtful judgment of the learned trial Judge was so flawed by the regrettable but understandable error that the appeal must be allowed and the matter remitted to the High Court for the assessment of damages.

-6-

JUDGMENT delivered the 20th day of May 1999 by Keane, J. 

The facts in this case, so far as relevant to the issues which have been argued on the appeal, are fully set out in the judgments which will be delivered by Murphy J and Lynch J.

It was submitted by Dr. John White, SC on behalf of the plaintiff/appellant (hereafter “the plaintiff’) that the admitted error in the judgment of the learned trial judge in setting out the contents of the hospital

-2-

notes from the Cork Regional Hospital on the plaintiff’s admission on the 13th April 1992 fatally undermined the conclusions at which he arrived in his judgment and that this could be remedied only by a retrial.

There can be no doubt that if the trial judge had inferred from that summary of the plaintiff’s condition as of the 13th April 1992 that the symptoms of which she was then complaining were not sensory only and that the disease, to that extent, was not benign, there would be no alternative to ordering a retrial. That would not have been a conclusion which the trial judge was entitled to draw from the evidence, since all the medical experts on both sides were agreed that the symptoms of which she was then complaining were sensory only and that, to that extent, the disease was benign. The central issue in the case - on which the experts called on behalf of the plaintiff and the defendant respectively were sharply divided - was as to whether her fall at the defendant’s premises exacerbated that existing condition with the catastrophic results now being endured by the plaintiff.

This case was at hearing in the High Court for eleven days. None of the doctors who gave evidence on behalf of either the plaintiff or the defendant based their opinion as to the extent of the multiple sclerosis from which the plaintiff was admittedly suffering in April 1992 on the symptoms mistakenly referred to by the trial judge in his judgment. All of them were examined and cross-examined at length and none of them made any reference to those

-3-

symptoms, for the very good reason that they would have known that the admission notes, properly construed, did not indicate that the plaintiff at the relevant time was complaining of any of those symptoms.

It remains a mystery as to why the trial judge, who conducted this lengthy and difficult trial with exemplary patience, included in his judgment the reference to those symptoms, based as it was on a misinterpretation of the hospital notes. It may have been no more than a clerical error which he failed to detect when checking the text of what was obviously a careful and considered judgment. It may be that he mistakenly thought that this evidence had in fact been given during the course of the trial, despite the fact that he had available to him a transcript of the entire trial which, as he made clear, he would be relying on when preparing his reserved judgment.

It is, however, clear beyond doubt that, whatever degree of confusion may have crept into the trial judge’s mind as to the extent of the symptoms actually being complained of by the plaintiff in April 1992, he entirely accepted the evidence of the medical witnesses on both sides that the symptoms of which she was complaining at that time were sensory only and that, to that extent, the disease was in a relatively benign mode. His judgment, despite the unfortunate error which it contained, includes the following express and unambiguous finding:-

-4-

“In this regard as I interpreted the evidence, it seems to have been accepted by all of the medical witnesses, who addressed the subject, that the symptoms of which the plaintiff complained in 1992, which are the symptoms on which the diagnosis that she had developed multiple sclerosis at that time was made, were only of a sensory nature and to that extent, the disease was then benign.”

Having gone on to refer to the hospital notes as indicating to him that, symptomatically, she was then “a very sick woman”, he adds:-

“However, whatever view I might have, I must accept the medical opinion that the symptoms of which the plaintiff was complaining in 1992 were sensory only.”

I am, accordingly, satisfied that it has not been demonstrated on behalf of the plaintiff that the admitted error at an earlier part of the judgment vitiated in the slightest degree his ultimate findings.

That brings me to the central issue argued on the appeal, namely, as to whether the trauma sustained by the plaintiff and which the trial judge found to be due to the negligence of the defendant exacerbated in any way the condition of multiple sclerosis from which she was already suffering. There was, as I

-5-

have indicated, an acute conflict of opinion between the medical witnesses called on behalf of the plaintiff and the defendant respectively as to whether a trauma of the nature sustained by the plaintiff could have exacerbated that condition. The trial judge summed up his conclusion on this issue as follows:-

“… It seems to me that, while it may not be established as a general proposition that trauma can exacerbate multiple sclerosis, it is likely that, in an isolated case, the association can be proved and I think that there is support for that proposition in the literature.”

He then went on, after a detailed review of the evidence, to express his preference for the view of the doctors called on behalf of the defendants that the trauma in this case had not exacerbated the existing condition. That evidence, it is necessary to emphasise again, was not in any way based on the symptoms which the trial judge, in the passage already referred to, had mistakenly stated the plaintiff to have been complaining of in April 1992. The trial judge reached this conclusion in part at least because of findings he made as to the credibility of one of the principal expert witnesses called on behalf of the plaintiff, Professor Behan. He also considered it to be in accord with the established state of scientific knowledge on the general issue as to whether trauma of the nature sustained by the plaintiff can either cause or exacerbate a

-6-

condition of multiple sclerosis. These conclusions of the learned trial judge, were, accordingly, supported by credible evidence and cannot be interfered with by this court.

That was not the only consideration taken into account by the trial judge. It was a remarkable feature of this case that, although the plaintiff had been treated by at least nine doctors, only one of them, a general practitioner, was called on her behalf. This yawning void in the case was made all the more astonishing by the fact that one of the doctors concerned, Dr. Noel Callaghan, a neurologist of wide experience, had seen the plaintiff at the time of her admission to hospital in April 1992 and also after the fall which led to the proceedings. Almost as remarkable was the failure of the plaintiff to call Mr. Charles Marks, the neurosurgeon, who operated on the plaintiff some time after the accident for a thoracic disc condition which the trial judge found to have been caused by the accident. The High Court was informed that Dr. Callaghan, at the time of the hearing, was retired and unable to come to court because of ill-health. However, the trial judge was so concerned by the absence of his evidence, which he rightly regarded as of crucial importance, that he adjourned the trial in order to enable Dr. Callaghan’s evidence to be taken on commission if the parties so wished. That was done, but neither party was prepared to place his evidence before the court.

-7-

The trial judge, in those circumstances, drew the inference that, had the treating doctors been called on behalf of the plaintiff, they would have been unable to support the case being made on her behalf. I have no doubt that that was an inference which the trial judge was perfectly entitled to draw. The onus of proof remained at all stages on the plaintiff to establish that her condition had been exacerbated by the fall. The inference which the trial judge drew from the failure of the plaintiff to adduce crucially relevant evidence cannot be set aside by this court. As was the case with the medical evidence adduced on behalf of the defendant, it was not in any way grounded on the symptoms which the trial judge had mistakenly supposed the plaintiff to be complaining of at one point in his judgment.

In these circumstance, I am satisfied that the plaintiff has not established any ground on which this court could order a new trial. I would dismiss the appeal.