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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Brennen v. Lissadell Towels Ltd. [2000] IESC 72 (15th November, 2000) URL: http://www.bailii.org/ie/cases/IESC/2000/72.html Cite as: [2000] IESC 72 |
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1. After
the hearing of this appeal on the 2nd November, 2000, the court indicated that
it would dismiss the appeal and affirm the order of the learned trial Judge
(McGuinness J9. The court stated that its reasons would be given at a later
date and this I now do.
2. The
Plaintiff suffered personal injuries as a result of falling over a timber
planter or flower container which had been placed on the footpath leading from
3. The
Plaintiff is a married lady, born on the 12th May, 1955. She was accordingly 40
years old at the time of the accident. She married at the age of 33 and had
three children who at the time of the accident were aged 6, 5 and 3½
years. Her husband is a mechanic. She had excelled at art in Secondary School
and had been accepted for a place in the National College of Art and Design
Foundation Course, but she did not take it up. At the time of the accident she
had been employed in the defendant company for some 22 years, first as an
assistant designer and subsequently as a designer. The work related to the
computer assisted design of towels.
4. It
was common case that she was good at this work and, apart from her wages,
derived considerable satisfaction from it. It appears to have been a position
which was uniquely suitable to her talents.
5. The
most obvious injury she suffered in her fall was an undisplaced fracture of the
right radial neck i.e. a fracture of the right elbow. This would normally take
six weeks to heal. She was also immediately conscious of pain in her back and
of banging the right side of her head off the ground. While recovering from the
arm fracture she developed persistent pain over the neck, aggravated by any
movement. In the very early days of her recovery she also developed
paraesthesiae of her hands and headaches. She continued to complain of these
symptoms and of associated clumsiness and loss of grip.
6. The
elbow injury healed satisfactorily but with a slight limitation of movement.
Her other injuries have continued to trouble her.
7. The
Plaintiff was unable to work in the immediate aftermath of the accident. As the
months went by her condition appeared to worsen, she had difficulty in holding
a pen and said that she would not be able to sit at a stool in front of a
computer, and move her neck. She was unable to continue her hobby of painting
(she had previously exhibited locally) and tried and failed to produce posters
on a few occasions.
8. In
this context, as her condition failed to improve and as she was beginning to
come to terms with the restrictions on her lifestyle, she began to
9. The
cause of the Plaintiffs neck pain, loss of grip and clumsiness have been
thoroughly investigated by a number of doctors including Mr. T.W. Scannell,
Consultant Orthopaedic Surgeon, Mr. Daniel Rawluk, Consultant Neurosurgeon and
Dr. Brian O’Moore, Consultant Neuro-Physiologist. MIRI investigation has
established that she had disc degeneration at the C5/6 and C6/7 levels with
annular bulges and small central disc prolapses. This was at all times a
degenerative condition and will be further discussed below. However, there was
no evidence of compression of the spinal chord or of the nerve roots. It was
also considered whether her neck and hand symptoms were referable to a carpal
tunnel syndrome, but there was no evidence of this condition on Dr.
O’Moore’s electrical tests. This condition corresponds clinically
to the symptoms described but has not been positively diagnosed due to the lack
of objective evidence.
10. These
conditions have given rise to pain and insomnia which also fed into the
depressive condition. She also has a condition of the jaws involving
11. There
was no serious challenge to the description of the symptoms or their having
been caused by or (in the case of the neck and associated injuries) accelerated
by the accident. Nor was there any contradiction of the evidence that the
Plaintiff is now a chronic pain sufferer.
12. The
Plaintiff was in receipt of a gross weekly wage of £191.00 at the time of
the accident. At the time of the trial she was in receipt of £90.30 per
week disability benefit which the learned trial Judge disregarded in making the
appropriate calculations and from this decision no appeal has been taken. She
was purportedly made redundant by the Defendant in March, 1996, though this was
denied in evidence by Mr. Nolan, an officer of the defendant company, in
cross-examination. In further cross-examination it was established that a lady
who was formerly the Plaintiffs assistant was taken on by the company (despite
financial difficulties which it experienced) on a part time basis, and was
being paid £40.00 a day in this capacity. Significantly, it was agreed by
him that the Plaintiff should have been contacted about this opportunity and if
19. The
Appellant has complained of each of the sums awarded for general damages and of
the sum awarded for future loss of earnings. £70,000, the Appellant said,
was excessive for three years pain and suffering, and it was logically
inconsistent to award a greater sum for the past than for the future. It was
said that the prospect of recovery had been understated by the learned trial
Judge, particularly in relation to the depression. In relation to future loss of
20. The
last submission related to the facts proved by the medical witnesses in
relation to the Plaintiffs pre-existing degenerative condition, described
above. This raised the issue of the extent to which, and the time at which, the
Plaintiffs neck and associated symptoms would have arisen in any case. Mr.
Scannell agreed with an opinion expressed by Mr. Rawluk that “in this
regard, the symptoms provoked by her accident could represent a premature onset
by approximately five to ten years”. That, in fact, is the most
favourable statement of the position from the Defendant’s point of view:
Mr. Scannell himself had originally said that “she would pro bably just
have been aware that she has more stiffness in her neck probably in five to ten
years from the date of her injury......”
21. The
role of this Court on the hearing of appeals such as the present has been
authoritatively considered in the case of
Hay
v. O’Grady
[1992] 1 IR 210. The matters are usefully dealt with in five numbered
paragraphs in the judgment of McCarthy J. commencing at page 217. These include:-
22. In
this context it may be noted that the Defendant called no medical evidence and
did not seriously challenge the main lines of the Plaintiff’s evidence.
23. The
learned trial Judge made a number of findings of fact of which the following
appear to be central:-
25. I
believe that these findings of fact are perfectly reasonable and indeed
moderate. There was of necessity an element of speculation as to when
degenerative changes would have become seriously symptomatic. The learned trial
Judge rejected the Plaintiff’s contention that she was entitled to
damages for loss of earnings for a full working life and instead opted for the
longer of the periods envisaged by Mr. Rawluk and Mr. Scannell before, as a
mafter of probability, serious symptoms would have arisen. She was quite
entitled to do this on the evidence.
26. In
relation to loss of earnings the learned trial Judge was quite entitled to
accept the evidence of Miss Keenan, Rehabilitation Consultant that, had the
Plaintiff been made redundant while uninjured, she would have got alternative
employment, probably in the desktop printing trade. She held:-
27. On
all the evidence, in eluding that of Miss Keenan of the Plaintiff’s
excellent work record and talents, it was a moderate assumption.
28. In
relation to the significant general damages awarded, it seems to me that there
was strong medical evidence. Mr. Scannell stated that she had
30. Dr.
Peter Fahy’s evidence was to much the same effect. His prognosis was if
anything more pessimistic. He said:-
31. In
these circumstances it appears to me that the learned trial Judge’s award
for general damages were by no means excessive. The Plaintiff has a condition
of constant pain, a significant loss of function and insomnia, all of which
contribute to depression and have made it impossible for her to work. This in
turn feeds back into the depression. She has in effect suffered the loss of her
previous lifestyle, of her independence and her physical integrity. These are
serious matters and must have been acutely felt in the earlier stages. With the
aid of counselling and medication she has come to terms with them to some
degree. She is suffering considerable pain some thirteen years earlier than, on
32. Considering
the sum awarded for general damages as a whole, it seems impossible to
criticize it in light of all the evidence. The consequences of this relatively
simple accident on the particular Plaintiff were indeed severe. Whether one
regards the peak of severity as having already occurred, during the
Plaintiff’s period of adjustment to her dramatically altered lifestyle,
or as occurring in the future due to the continuation of certain of her
symptoms is to some extent a question of impression. Since the overall figure
seems proportionate to the complaints, I would not disturb the findings of the
learned trial Judge, who saw the Plaintiff and her advisers, on the basis that
consideration of the case on paper might suggest a greater incidence of pain
and suffering into the future.
33. It
should be emphasized that, in this case, the substantial sum awarded to the
Plaintiff was justified by the exceptional and, on the whole, uncontested
evidence of comprehensive destruction of the Plaintiff’s quality of life,
which was quite out of proportion to the original comparatively minor injury to
her