General Damages 2020-2021 - Page 2 of 2 - Irish Legal Guide (2023)

Cases

Tayyad v Rilta Environmental Ltd

[2020] IEHC 251

JUDGMENT of Mr. Justice MacGrath delivered on the 1st day of April, 2020

1. By virtue of the provisions of the Personal Injuries Assessment Board Act 2003, (“the Act”), it is necessary to make application to the Injuries Board prior to the institution of proceedings in certain actions where damages are claimed for personal injuries. Section 12 of the Act empowers the court to make an order, inter alia, for the preservation of evidence in advance of such proceedings.

2. The applicant alleges that he was involved in an accident at work on his employer/respondent’s premises on 7th January, 2019. It occurred while he was ascending a ladder/climbing structure and from where he was dropping a hosepipe to ground level. He alleges that he lost his footing and fell, in consequence of which he suffered injuries.

3. On 24th February, 2019, pursuant to s. 11 of the Act application was made on his behalf to the Injuries Board in the prescribed form (Form A). Under the heading “Brief description of how the accident occurred” the following was inserted:- “Claimant tripped on a wet surface while ascending a ladder in his workplace.”

4. The applicant now seeks an order pursuant to s. 12 of the Act requiring the respondent to preserve certain items of evidence (“the items of evidence”) in advance of the issuing of proceedings. These are as follows:

a. The incident report form compiled in relation to the accident giving rise to the injuries sustained by him on 7th January, 2019;

b. CCTV footage of the incident;

c. The cleaning roster for the respondent’s premises from the 6th January, 2019 to the 8th January, 2019.

5. The application is grounded on the affidavit of Ms. Georgina Robinson, solicitor for the applicant, and sworn by her on the 13th May, 2019. She contends that the items of evidence should be preserved so that they can be made available to the applicant in the conduct of his proceedings. A letter of claim was sent to the respondent on 30th January, 2019, in which it was alleged that the accident occurred as a result of the company’s failure to maintain the climbing structure in a safe condition. Ms. Robinson also advised that the hazard in question was of a slippery, oily nature. Having called upon the company to admit liability she cautioned that, if necessary, proceedings would be instituted. In the event that liability was not admitted by way of open letter within ten days from the date of her letter, Ms. Robinson required the respondent company to preserve the items of evidence. This motion was threatened in the event that her letter was not replied to. A reply was not received.

6. Ms. Robinson wrote a second letter on the 12th April, 2019, again requiring the respondent to preserve the items of evidence. A reply was not received. She wrote on the 28th May, 2019 advising that in the absence of a response, an application pursuant to s. 12 of the Act would issue. Again, a reply was not forthcoming. This application duly issued on 30th May, 2019.

7. Although the respondent has not filed an affidavit in response, the court was informed that in a letter sent after the application was brought, solicitors representing the respondent informed Ms. Robinson that CCTV footage is not available.

Section 12

8. Section 12 provides, inter alia, as follows:-

“(2) Nothing in subsection (1) or any other provision of this Act is to be read as affecting the right of a claimant or a respondent to invoke, subject to and in accordance with this section, the jurisdiction of any court to make an order referred to in subsection (3) that could be made if proceedings, but for subsection (1), were to be brought or were about to be brought in respect of the relevant claim and the court shall, accordingly, have jurisdiction, subject to and in accordance with this section, to make such an order despite the enactment of subsection (1).

(3) The order mentioned in subsection (2) is any order of an interlocutory kind or power to make which is provided for by rules of court or otherwise inherent in the court’s general jurisdiction in civil proceedings and, in particular, an order restraining the transfer of assets to a place outside the State for the purpose of defeating the rights of another arising out of the relevant claim or the dissipation of assets for that purpose and an order requiring evidence to be preserved.

(4) In relation to the invocation of the foregoing jurisdiction of the court the following provisions have effect—

(a) the application for the order concerned shall be made by motion on notice or, as appropriate, ex parte motion,

(b) without prejudice to the principles or rules that govern generally the exercise of that jurisdiction, the court shall not exercise that jurisdiction to make any order (not being an order relating to the transfer or dissipation of assets) unless it is satisfied that—

(i) the making of the application therefor is bona fide and for the sole purpose of ensuring the fair and just disposition of any proceedings that could be brought in the event of the issue of an authorisation referred to in subsection (1), and

(ii) the making of the order is required so as to enable the fair and just disposition of those proceedings,

and the court shall ensure that the manner in which any such application is dealt with does not prejudice any procedures which are being or may be followed under this Act in relation to the relevant claim,

(c) on the hearing of any such application the court shall have power to grant the relief sought or, subject to this section, make any other interlocutory order that is appropriate to the application or may adjourn, from time to time, the hearing of the application or dismiss the application and, in any of the foregoing cases, may make such order as to costs as it considers appropriate,

(d) the person making any such application shall be subject to the same duties as he or she would be subject to if the application were to be made in the course of proceedings brought in respect of the relevant claim and may (in addition to any undertaking he or she may be regarded as having given by operation of law) be required to give such undertakings as the court may specify in the circumstances,

(e) in the event of proceedings being brought in respect of the relevant claim pursuant to an authorisation referred to in subsection (1), any order made in exercise of the foregoing jurisdiction shall be deemed to be an order made in the course of those proceedings and the court may, accordingly, continue to exercise jurisdiction in respect of the order, and

(f) in the event of no proceedings being brought in respect of the relevant claim, the court may make such order as to the discharge of the order referred to in paragraph (e), to any other matters in consequence of the order so referred to and to the costs of the matter as is necessary or appropriate in the circumstances.

The applicant’s submissions

9. Counsel for the applicant, Ms. Murphy B.L., submits that the jurisdiction of the court under s. 12 to order the preservation of evidence arises independently of and is not dependent on circumstances in which there is a risk of the transfer of assets to a place outside the State or where there is a concern about the dissipation of such assets. This is not seriously contested by the respondent.

10. Counsel refers, by way of analogy, to the principles applicable to the preservation of evidence in criminal proceedings, as discussed in Braddish v. DPP and His Honour Judge Haugh [2001] 3 IR 127:-

“The authorities establish that evidence relevant to guilt or innocence must so far as is necessary and practicable be kept until the conclusion of the trial. These authorities also apply to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence.”

11. It is submitted that the applicant is doing no more than seeking the protection of the court to enable and ensure a fair trial of the issues between the parties in the event that it is necessary to institute proceedings and liability contested. A concern is expressed that the failure to preserve the items of evidence could fatally prejudice the position of the applicant.

12. It is submitted that the criteria outlined in s. 12(4)(b) are fulfilled. Regarding the first limb of the test, it is submitted that the repeated unanswered correspondence illustrates the bona fide nature of the application which is made to ensure the fair and just disposition of any potential proceedings. It is argued that the items of evidence are relevant, and in the event that liability is not admitted, it is highly likely that a court would order discovery of them in any future application.

13. It is submitted that the second part of the test is satisfied because, if proceedings are instituted, the items of evidence will be necessary to enable the fair and just disposition of the proceedings. If they are then unavailable to the applicant, he will be considerably disadvantaged in the presentation of his claim. It is also submitted that the applicant might be criticised for not taking steps to seek the preservation of such material, pending the processing of the claim.

14. Reliance is also placed on O. 50, r. 4 of the Rules of the Superior Courts, which provides:-

“4. The Court, upon the application of any party to a cause or matter, and upon such terms as may be just, may make any order for the detention, preservation, or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid may authorise any person to enter upon or into any land or building in the possession of any party to such cause or matter and for all or any of the purposes aforesaid may authorise any samples to be taken or any observations to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence.”

15. It is contended that the items of evidence, in respect of which preservation is sought, are items “as to which any question may arise therein”.

16. Regarding the third limb of the test, Ms. Murphy B.L. emphasises that the application is brought to preserve, not to inspect or discover. To make the orders sought would not place an undue burden on the respondent and there is no departure from the regular process such as, for example, requesting the respondent to take some step or action which is not expressly provided for by the Act.

The respondent’s submissions

17. Counsel for the respondent, Mr. Kitson B.L., in resisting the application, stresses that there is currently no lis in existence between the parties.

18. A suggestion in written submissions, that the jurisdiction of the court to make a preservation order only arises in the context of an application for an order restraining the transfer of assets outside the State for the purposes of defeating the rights of another arising out of the claim, or the dissipation of those assets, was not advanced at hearing. It is accepted that the jurisdiction to make an order requiring evidence to be preserved is not dependent on those issues and it is accepted that the matters referred to in s. 12(3) should be read disjunctively. It is submitted, however, that the type of orders referred to in s. 12(3), and the principles applicable when such orders are sought, should inform the approach of the court to the exercise its jurisdiction under s. 12 of the Act, and that an approach which is no less restrictive should apply to an application made in advance of proceedings under s. 12 of the Act.

19. Reliance is placed on the decision of Ryan J. in SoftCo v. DHL Information Services (Europe) S.R.O. [2013] IEHC 623 as being illustrative of the restrictive type of approach which must equally apply on this application. The court there considered an application to permit the plaintiff to attend at the defendant’s premises to conduct an audit of computer files and programmes. The application was made under O. 50, r. 4 before the matter was fully pleaded. Ryan J. observed at para. 13 of his judgment:-

“The plaintiff’s case is that it needs inspection of the defendant’s computers in order to draft the statement of claim. It is accepted that it is unusual to order inspection or other interlocutory procedure at this early stage of an action. Counsel for DHL, Mr. McDowell SC argues that it is wholly inappropriate to order any such procedure at this early stage. It is obvious that SoftCo would like to find out what happened to its software and what happened to the data stored in it and how HP managed to extract the data from the system but that does not mean that inspection is necessary in order to draft the statement of claim.”

20. Noting that inspection would not normally be ordered until pleadings are closed and that the right of a party to seek inspection or discovery is in no way dependent on the strength of the plaintiff’s claim, Ryan J. accepted that, in principle, there should not be an order for inspection until it has been shown to be practically necessary and it will normally be difficult to show that until the pleadings have been closed. The plaintiff’s argument give rise to a question of when a party is entitled to inspect in advance of setting out his claim “in order to find out the true situation?”.

21. Ryan J. rejected the application. He accepted that there is no rule that a party is not entitled to examine another’s property, records or computers before pleading its case and that there may be circumstances in which a person is entitled to inspect to see if his rights have been infringed but “it is obvious that a significant element of necessity would have to be established.” He did not regard it as being necessary to order inspection at that time but accepted that if an application for inspection be made at a later stage of the proceedings that the consideration of such application would be “very different from the present request.”

22. Ryan J. also noted that inspection, if ordered, would be impossible to police. The court would not be able to say when enough was enough, because it would not know just what was in dispute. He continued:-

“43 .… it would be a matter for the plaintiff to keep digging until it was satisfied it had got the evidence it needed; the defendant would not be able to stop the process because it would not know the terminus of the examination.

44. The court would find it difficult if not impossible to circumscribe the compass of the inspection without conducting the very exercise that would happen in the course of the proceedings in the exchange of pleadings and particulars and in the process of discovery of documents.”

In conclusion, he decided that the answer was not ‘no’ to an inspection but ‘not yet’ to an application for inspection because the time was not ripe for that procedure.

23. Counsel for the respondent submits, by analogy, that given the high level of proof of necessity required in an application in which proceedings are in being, the standard should be no less where proceedings have not yet been instituted.

Discussion

24. It seems to me that the rules concerning the preservation of evidence in criminal matters, where the obligations of the parties are neither coterminous nor coextensive with those of parties to a civil action, are of minimal assistance in the interpretation of s. 12 of the Act. The type of application in SoftCo differs in many respects from an application under s. 12. The application was made following the institution of proceedings where authorisation was not required. The special jurisdiction conferred on the court by s. 12 of the Act did not arise for consideration. Nonetheless, counsel for the respondent submits that SoftCo concerned the application and interpretation of the provisions of O. 50, r. 4 which, given the provisions of s. 12(3) of the Act, are equally applicable on this application. Therefore, he submits that this court should adopt a no less rigorous approach than that in SoftCo; and that the approach of Ryan J. ought to inform the approach to be adopted in an application under s. 12 of the Act. He also submits that the principles applicable to applications for interlocutory orders, such as for inspection and discovery, must, a fortiori, apply in the context of an application made prior to the institution of proceedings.

25. In my view, there is much merit to this submission. It is clear from the provisions of s. 12(4) that the statutory power is framed in restrictive and negative terms and can only be exercised when the court is satisfied of the existence of the criteria outlined in s. 12(4)(b)(i) and (ii). Therefore, I believe that the power of the Court under s. 12 of the Act should be construed strictly not least because a respondent to such an application has not yet become a party to litigation and thus his or her position ought not be any less favourable than that of a defendant in extant proceedings.

26. There are a number of factors which ought to be considered. The order sought is confined to the preservation of evidence. It may be that no great burden will be placed on the respondent by the making of the order – no evidence of such burden has been adduced. The preservation of such evidence may also aid the respondent as much as the applicant. Nevertheless, in balancing the rights of the parties, it must be borne in mind that proceedings may never be instituted against the respondent, albeit the Act provides for the mechanism of discharge of such an order in s. 12(4)(f).

27. The parties are to some extent ad idem regarding the interpretation of certain expressions and words in s. 12(3). The applicant seeks the preservation of evidence, something which is expressly provided for in subs. (3). It is not therefore necessary to consider whether the words “in particular” in that subsection implies any further restriction or extension.

28. The exercise by the court of its jurisdiction under s. 12(3) on an application for the preservation of evidence is circumscribed by the provisions of s. 12(4)(b) which prohibit the court from making an order unless it is satisfied:

1. That the application is bona fide and for the sole purposes of ensuring the fair and just disposition of any proceedings that could be brought in the event of the issue of an authorisation; and

2. The making of the order is required so as to enable the fair and just disposition of the proceedings.

The court is also obliged to ensure that the manner in which any such application is dealt with “does not prejudice any procedures which are being or may be followed” under the Act in relation to the claim.

29. In this case it is clear that the only procedure activated is the application to the Injuries Board under s. 11 of the Act. I do not see how this application for preservation of evidence can be said to prejudice the application under s. 11. None has been identified.

30. The court is also satisfied on the basis of the evidence and the contents of the affidavit of Ms. Robinson and the exhibits thereto that the application is bona fide. Further, in my view, it cannot be said that the application is for any purpose other than ensuring a fair and just disposition of the proceedings. No other purpose is suggested or identified. In arriving at this conclusion, I have taken into account the failure of the respondent to reply to not one, but three letters, in advance of this application.

31. The applicant is an employee of the respondent who claims to have suffered an injury at work. The items referred to in the notice of motion, in my view, are potentially relevant evidence in a case such as this.

32. The court is disposed to make an order in terms of para. 1 of the notice of motion, the incident report form, and para. 2 the CCTV footage (although I note that the respondent states that none such is available – if that be the case then there is nothing to preserve). With regard to para. 3 however, it appears to me that requiring the respondent to preserve the cleaning rosters for its entire premises for three days is unnecessarily broad and is not required for the fair and just disposition of any proceedings that may be instituted. An order for preservation of evidence made under s. 12 of the Act cannot be of greater extent than that which the court has jurisdiction to make within extant proceedings under the provisions of O. 50, r. 4 where, fundamentally, the court must be satisfied that what is sought is relevant, necessary and proportionate. In my view, this same general guiding principle applies with equal if not greater force to an application under s. 12 of the Act.

33. Counsel for the applicant invited the court to consider making an order for the preservation of the cleaning roster on a more restrictive basis and it appears to me that the balance of justice requires that this be done. Making an order for the preservation of cleaning rosters in connection with the ladder/climbing structure and the area of ground in its immediate vicinity and/or within the room within which the ladder/climbing structure is situate, ought to meet the justice of the situation.

Summary and Conclusion

34. I am satisfied that the court has jurisdiction to make the order sought, that the application is bona fide and for the sole purpose of ensuring the fair and just disposition of any proceedings that could be brought following the issue of an authorisation under s. 12(1) of the Act. Further, I am also of the view that the making of the order does not prejudice any procedures which are in being or may be followed under the Act in relation to any claim which may be pursued.

35. The court therefore, makes the following orders:

1. An order pursuant to s. 12 of the Personal Injuries Assessment Board Act, 2003 requiring the respondent to preserve any incident report form compiled in relation to the injuries sustained by the plaintiff on the 7th January, 2019.

2. An order pursuant to s. 12 of the Personal Injuries Assessment Board Act, 2003 requiring the respondent to preserve any and all CCTV footage of the incident on the 7th January, 2019.

3. An order pursuant to s. 12 of the Personal Injuries Assessment Board Act, 2003, requiring the respondent to preserve the cleaning roster in respect of the ladder/climbing structure on which the plaintiff was working at the time of his fall, and the area within the immediate vicinity of the ladder/climbing structure and the room in which the climbing structure/ladder is situate, for the period requested.

36. The parties shall have liberty to apply.

Result: Reliefs sought pursuant to Personal Injuries Board Act, 2003, section 12, granted.

Keating v Mulligan

[2020] IEHC 47 (24 January 2020)
Mr. Justice Cross delivered on the 24th day of January, 20201. The plaintiff is a housewife born on 19th June, 1955, she was a passenger on the Luas on15th June, 2016, heading towards town when near Heuston Station the defendant’s taxicollided with the tram and the plaintiff sustained injuries. The defendant did not denyliability for the accident. The case was scheduled to last two days.2. The plaintiff’s claim is that in the collision she struck her shoulder against the bar and wasshaken, she had to assist elderly passengers and felt somewhat trapped in the tram thatshe sat down on a seat and was told to get on another tram heading to town as she didnot think she was significantly injured at the time she went to the Jervis Shopping Centre,got off the tram, was nauseous, nearly fell and vomited a number of times, was given aglass of water, decided to return home on a tram heading the other way but on that tramfell ill and went off to St. James’ Hospital complaining of soft tissue injuries.3. The plaintiff was shocked, felt nauseous and weak and somewhat dizzy, had pain in herright shoulder and neck and weakness and numbness in her right arm. She went to theEmergency Department of St. James’ Hospital complaining of pain in her cervical spineand of pins and needles and numbness in her right upper limb, it was noted that she hadhit her right subclavicular area against the bar in the accident and there was swelling inthat particular area. She also complains of weakness and paraesthesia, at C6/C7. X-raysand studies were performed on her chest, right elbow, right hand, right wrist, rightshoulder, cervical spine and thoracic spine which were all normal and a CT scan of herbrain and cervical spine was normal also. She attended accident and emergency in St.James’ Hospital on a number of occasions and was given medication. She underwent acourse of physiotherapy which were of little benefit for her. On 20th June and MRI scanwas undertaken which showed multilevel degenerative changes. She had difficulty insleeping and her physical injuries are continuing and she also suffered psychologicalinjuries and depression.4. Initially the plaintiff’s credibility as to the accident was questioned by the defendant. Thedefendants suggested that the CCTV did not show a significant impact but the plaintiffwas not clearly visible in the CCTV film as she was at the rear of the tram and she wasthe last person leaving the tram with two elderly passengers. The injuries that she hascomplained of were supported by Mr. Paul Nicholson, surgeon from St. James’.5. The plaintiff was also questioned on what I believe to be some small irrelevantdiscrepancies between her evidence and the account in some of the medical notes of thecircumstances of the accident. Medical notes do not have as their purpose a forensicPage 2 ⇓account of accidents but record in general terms how injuries accrued. Any suchdiscrepancies are usually irrelevant and in this case the plaintiff’s account of the accidentis almost exactly mirrored by her GP’s records. Whether she fell or stumbled and almostfell is of no significance.6. I form the view that the plaintiff was entirely truthful person in relation to thecircumstance of the accident. She did not exaggerate her symptoms. At the time of theoriginal hearing dates on 28th, 29th and 30th May, 2019, the plaintiff appeared in someconsiderable emotional distress. When the case resumed in January 2020 the plaintiffwas to external appearances much more robust and as she said herself had turned acorner.7. The plaintiff’s past history is of relevance. The plaintiff was involved in an accident in theUnited Kingdom when she suffered injuries to her lower back following a slip and fall andunderwent surgery, the case was settled in 2002 for the sum of £400,000.8. The plaintiff was also involved in a road traffic accident, some years ago, when she wasrear ended and suffered some bruising but no claim was made in relation to the matter.She was treated by Dr. Fitzgerald in Ireland in respect of her lower back injuries. Theplaintiff said that at the time of this accident her back was only giving her troubleoccasionally.9. After the accident the subject matter of these proceedings the plaintiff became veryagitated and vigilant, she ceased driving a car and her mood became low as she lostinterest in her usual affairs and became more irritable and had little patience with herfamily and was irritable with her sons and grandchildren and had difficulty in sleeping.10. The plaintiff had a number of tragic incidents in her life. A son died by suicide inNovember 2004 at the age of 21 and a nephew was mugged and murdered some 15years ago and after that another nephew began to get into trouble and the plaintiff’ssister asked her to take him in which she did and he lived with her family for some threeyears however he caused further trouble and later this nephew also committed suicideone month after her son and she was grieving for these losses. The plaintiff was treatedby her GP for depression. One of her sisters was admitted to St. Loman’s Hospitalfollowing the murder of her son. Then another son passed away in March of 2015 fromcancer and a further sister passed away from lung cancer later in 2015. Clearly theplaintiff was a poor candidate in relation to any psychological sequelae and in September2017 having returned from a wedding in Portugal she was in low mood and had suicidalideations herself.11. Professor Thakore, the psychiatrist, gave evidence that the plaintiff fulfils the DSM-Vcriteria for major depressive disorder with an index of moderate severity and he of theopinion that stressor for his diagnosis was the accident subject matter of theseproceedings. I find that the other incidents as described must have contributed to hermood disorder as well. Accordingly, the depressive disorder must be counted asmultifactorial.Page 3 ⇓12. Doctor Das, the consultant pain physician, is of the opinion that the plaintiff suffers fromsevere neck and back pain, complex in nature, which has resulted in a number ofinjections which have provided for some but temporary relief and he intends furtherinjections which he is hopeful might relive the symptoms by as much as 50%. On his firstexamination in December 2017 the plaintiff has spasm and tenderness in her trapeziusand deltoid muscles on her right side. Whereas the initial soft tissue injury is describedas grade 2 by Dr. Das and which he would have hoped would have recovered in a numberof months the plain and symptoms are persisting and have become chronic and he cannotsay that there will be a complete resolution. The fact that spasm was found onexamination is an objective sign and indicates that the plaintiff’s complaints cannot bedismissed as merely subjective. Mr. Nicholson is also of the view that it is likely that theplaintiff will be left with residual symptoms that will frustrate herself ongoing into thefuture and that she has a degeneration of her back which would of course have predatedthe accident but the view is that it is being made symptomatic by the accident.13. All of this is well and good. The complication such as it was in this case which resulted inthe two-day case stretching over six days is that in addition to the history as above theplaintiff was involved in another accident on the Luas on 22nd August, 2017, when shewas travelling with a child in a pram and the Luas suddenly stopped due to, it isunderstood, a pedestrian coming in front of it. The plaintiff was thrown forward into therailing and hit her right side of her lower chest, she was taken by ambulance to theEmergency Department and was examined and was x-rayed and was discharged. A fewdays later she coughed at home and collapsed and was taken back to the EmergencyDepartment to have a CT scan and was again discharged home and had difficultysleeping. The plaintiff suffered a suspected fracture of her ribs in this incident.14. The defendant by letter of particulars dated 11th January, 2018, asked inter alia “whetherthe plaintiff had ever suffered an accident or suffered any injuries in any accident eitherprior to or subsequent to the alleged accident referred to in the personal injuriessummons/endorsement of claim…and requested the usual particulars of any suchmatters.” This letter was replied to by the plaintiffs on 29th January, 2018, as follows:“The plaintiff was involved in a previous accident which occurred in November 1996when she was residing in the UK. She suffered injuries to her lower back followinga slip and fall accident and underwent surgery. The case was settled in 2002 forthe sum of STG 400,000.The plaintiff was also involved in a road traffic accident approximately five yearsago when her car was rear ended and she suffered bruising to her front chest fromthe seatbelt. No claim was made in respect of personal injuries in this matter.The plaintiff continued to suffer from low back pain following her accident in 1996prior to this accident.”15. The plaintiff’s solicitors in these proceedings wrote two initiating letters to the Luascompany in relation to the August 2017 incident and the plaintiff was later advised thatPage 4 ⇓because the incident was caused by a sudden breaking due to a pedestrian suddenlyemerging in front of the tram, that she would not have a good chance of recovery andnothing further was done about the case.16. The first time the defendants were advised of the accident in 2017 was when on 17thJune, 2019, before the proposed fourth day of the hearing they received a medical reportfrom the plaintiff’s GP, Dr. Sayed, dated 12th June, 2019.17. Clearly this accident in 2017 occurred prior to the issue of the summons in theseproceedings and prior to the request in replies to particulars.18. The plaintiff in the normal course swore affidavits of verification in respect to thepleadings and the replies to particulars which were verified did not refer to the August2017 accident and therefore the affidavit of verification was incorrect.19. At the conclusion of the plaintiff’s case, the defendants applied to have the case dismissedpursuant to the provisions of s. 26 of the Civil Liability and Courts Act 2004. Counselindicated that the defendant would not be going into evidence.20. Section 26 of the Act provides as follows:“26.—(1) If, after the commencement of this section, a plaintiff in a personal injuries actiongives evidence or adduces, or dishonestly causes to be given or adduced, evidencethat:(a) is false or misleading, in any material respect, and(b) he or she knows to be false or misleading,the court shall dismiss the plaintiff’s action unless, for reasons that the court shallstate in its decision, the dismissal of the action would result in injustice being done.(2) The court in a personal injuries action shall, if satisfied that a person has sworn anaffidavit under section 14 that—(a) is false or misleading in any material respect, and(b) that he or she knew to be false or misleading when swearing the affidavitdismiss the plaintiff’s action unless, for reasons that the court shall state in itsdecision, the dismissal of the action would result in injustice being done.(3) For the purposes of this section, an act is done dishonestly by a person if he or shedoes the act with the intention of misleading the court.(4) This section applies to personal injuries actions—(a) brought on or after the commencement of this section, andPage 5 ⇓(b) pending on the date of such commencement.”21. As Irvine J. held in Nolan v. O’Neill & Or. [2016] IECA 298 the purpose of the 2004 Act isto abandon “a cloak and dagger” approach to litigation in favour of an open and open andtransparent scheme in which any false or misleading assertions or information is notlightly to be tolerated. The burden of proof invoking s. 26 lies upon the defendant on thecivil standard.22. In Nolan (above) Irvine J. held:“43. What is clear from the wording of the section is that the defendant must establishfirstly an intention on the part of the plaintiff to mislead the court and secondly thathe/she adduced or caused to be adduced evidence that was misleading in amaterial respect. Thus false or misleading evidence even if intentionally advanced ifnot material to the claim made cannot justify invocation of the section. Further, anysuch false or misleading evidence must be sufficiently substantial or significant inthe context of the claim that it can be said to render the claim itself fraudulent.That this is so would appear to be supported by the following short passage fromthe decision of Fennelly J. in Goodwin v. Bus Eireann [2012] IESC9 concerning s.26 and where at para. 62 he stated as follows:‘62. For this section to apply, the defendant must discharge the burden ofshowing that some material evidence has been given which is false ormisleading and that the plaintiff knew that it was false or misleading. (Seethe judgment of Denham C.J. of 2nd December 2011in Ahern v Bus Eireann[2011] IESC 44). Counsel for the defendant correctly accepted that thisamounted to an allegation that the claim was fraudulent.’44. However, this does not mean that a defendant must establish that the entirety of aplaintiff’s claim is false or misleading in order to suceed on such an application. It isclear that proof that a plaintiff’s claim for loss of earnings was false or exaggeratedto a significant extent may justify the dismissal in total of an otherwise meritoriousclaim.”23. The decision of Nolan (above) was followed by the Court of Appeal (Irvine J.) in JasonPlatt v. OBH Luxury Accommodation Limited & Or. [2017] IECA 221 and I fully accept andfollow that authority as stating the law in relation to s. 26.24. The defendant submits:a. That the failure of the plaintiff to refer to the 2017 accident in her replies toparticulars was a clear breach of her obligations for disclosure and that theswearing of the affidavit of verification in relation to whether therefore themisleading replies in the particulars was improper.b. That her solicitors were clearly aware of the 2017 accident as they had writteninitiating letters to the Luas tram company in respect thereof.Page 6 ⇓c. It was further alleged that the plaintiff deliberately withheld the GP’s report fromthe defendants until 17th June, 2019, after the plaintiff had originally ceased hercross-examination and that the reason why it was withheld was due to the fact thatthe report disclosed the second incident on 22nd August, 2017, and the defendantagreed that this allegation had two possible implications, either that the plaintiffhad given specific instructions to her legal team to withhold the report or that herlegal team were involved in a deliberate effort to perpetrate a fraud.d. That the plaintiff cannot distance herself from the actions of her solicitor and isbound by what they have done.e. That the plaintiff was cross-examined about her subsequent medical history andfailed when to inform the Court that she was involved in a second accident. It wasexpressly suggested that the plaintiff was asked under cross-examination about hersubsequent medical history and that she “refused” and failed to answer or failed todisclose a relevant incident and that in that regard she deliberately misled theCourt in her evidence.f. That the plaintiff deliberately included details of her medical examination as a resultof the August 2017 instant accident in the discovery in respect of the accidentsubject matter of these proceedings in order to include those injuries with thisclaim.g. That the injuries in the 2017 incident are almost identical to the injuries complainedof and that the Court was misled.25. I will deal each of those allegations in turn:a. The plaintiff clearly failed to disclose the 2017 accident which ought to have beendisclosed by the affidavit of verification.b. Her solicitors clearly knew of the August 2017 accident as they had written twoinitiating letters and indeed had been advising the plaintiff as to that incident.c. The GP’s medical record which was furnished to the defendants dated 17th June,2019, was not deliberately withheld for the alleged or any purposes. The GP’smedical report was dated 12th June, 2019, and had been requested some timerelatively recently before. The report was quite properly furnished to the defendantpromptly on receipt by the plaintiff’s solicitors. There is absolutely no basis of theallegation that either the plaintiff or her solicitors had in any way deliberatelywithheld the letter or acted improperly as was suggested by the defendants.d. I accept and indeed counsel for the plaintiff accepts that the plaintiff cannotdifferentiate from any actions of her solicitors and is bound by what they havedone.Page 7 ⇓e. The plaintiff did not in her evidence mislead the Court or anybody else as to hersubsequent medical history. The plaintiff was asked in great detail about thecircumstances of the accident and possible discrepancies between the way that shehad given her evidence and some of the medical reports or other reports and alsothe severity of the impact, she was also asked about her pre-accident disabilities.The plaintiff was not asked about her subsequent medical history. Her explanationwhen later cross-examined as to why she had not in effect volunteered to informthe court about the 2017 incident, was that she was waiting to be asked about it.Of course given the fact that she should have disclosed her medical history in fullthat is not entirely satisfactory. However, it is not the case that the plaintiff in anyway gave false or misleading evidence, in effect perjury, in her testimony to theCourt.f. The plaintiff’s discovery did include hospital records outlining the fractures to theribs as seen in imaging taken as a result of the 2017 incident. These injuries werenever part of the particulars of injury in relation to this accident. Clearly theplaintiff in this case discovered more material than she was obliged to do so but Ido not believe that this disclosure of the x-ray and film reports in relation to theribs though included with the discovery was in any way an attempt on the behalf ofthe plaintiff bring her ribcage damage into this case.g. I do not accept that the injuries in the accidents subject matter of theseproceedings in any way overlap with the injuries in the August 2017 incident. Theinjuries in the August 2017 incident were injuries to her ribcage withpossible/probable fractures of her ribs as she described them “floating ribs”. Theseinjuries resolved rapidly. The injuries in this case are soft tissue injuries to herneck and shoulder and psychological sequelae.26. Taking the above into account, I must now approach the defendant’s application in thelight of the law as stated by the Court of Appeal in Nolan (above), I do not accept that thedefendant has established any intention on behalf of the plaintiff or on behalf of theplaintiff’s legal advisors to misled the Court or that she adduced evidence or caused to beadduced evidence including the replies to particulars that was misleading in a “materialrespect”. The 2017 accident was in fact irrelevant to the injuries the subject matter ofthis case. Furthermore, insofar as it might arise I do not accept that any evidenceincorrectly stated was substantial or significant in the context of the claims so that itcould be said to render the claim itself fraudulent.27. Accordingly, the defendant’s application under s. 26 must fail.28. A further issue arises in that as a result of the defendant’s application and the manner inwhich the application was made, the plaintiff is claiming aggravated damages.29. Section 26 allows the defendant to make an application which can result in a case, suchas the plaintiffs in which liability is not an issue, being dismissed because of dishonesty.It is in my view right and proper that reasonable latitude is allowed to a defendant toPage 8 ⇓make this case. Were the defendant to have confined the application to the failure of theplaintiff to swear an accurate affidavit of verification and their failure to furnish details ofthe 2017 accident and allege that the failure was misleading and that there was someoverlap in the injuries then though clearly the application would have been dismissed I donot believe an issue of aggravated damages would arise.30. This Court in a number of cases has referred to an award of an aggravated damages asbeing the only real deterrent to a defendant to make unmeritorious applications in thisregard. The statutory remedy to have a defence struck out is usually of no deterrent to adefendant or advance to a plaintiff as a decision on a defendant’s application is not goingto be made until the end of the case which is too late to afford the plaintiff any advantagein having the defence struck out.31. In Nolan (above) Irvine J. stated:“I regret to say that I view the application made by the defendants as a somewhatopportunistic one, and one which was made in a manner that was fundamentallyunfair. The defendants did not take the risk of challenging Mr. Nolan as someoneintent on perpetrating a fraud. Such a challenge might have exposed them to a riskof an award of aggravated damages depending on the manner in which such anapplication was pursued…”32. In this case however the defendant went far beyond either what was required for anapplication under s. 26 or indeed what was supported by any evidence.33. I have already found that there was absolutely no basis to suggest that the medicalreport from the General Practitioner was suppressed in order to disguise the August 2017accident. One look at the dates of the report would clearly have prevented such an attackupon the plaintiff and her legal advisors. Professional misconduct was alleged.34. Secondly, the plaintiff was never asked in evidence in relation to her subsequent injuriesdealing with this accident and accordingly did not swear any false or misleading evidencein that regard. To allege somebody has in fact deliberately sworn false evidence is aserious criminal allegation of perjury. To submit that the plaintiff and/or her legal teamwere involved in a deliberate effort to perpetrate a fraud and that she deliberatelywithheld the medical report from the defendant is a very serious allegation, it clearlydeparts from what is necessary to make submissions pursuant to s. 26. It is not right orproper to make entirely unsubstantiated allegations of professional misconduct against anOfficer of the Court or to accuse an innocent plaintiff of in effect perjury or fraud withoutthe slightest evidential basis.35. For all of these reasons I accede to the plaintiff’s counsel’s application that in addition toher damages she is entitled to aggravated damages.Damages36. When this case was opened it was indicated that there were some small items of specialdamages, travelling expenses and physiotherapy which it was hoped to be agreed but atPage 9 ⇓the conclusion of the case counsel for the defendant indicated that no virtues had beenfurnished, he would not agree any items of special damage and counsel for the plaintiffdid not pursue same.37. Accordingly, the compensatory damages are general damages only.38. I have outlined the plaintiff’s injuries above as indicated I believe the plaintiff to betruthful witness who did not in any way exaggerate her complaints. She was clearly whenfirst giving evidence in a distressed state and I do not believe that this was just becauseof the nature of the cross-examination. The plaintiff’s psychiatrist, Prof. Takore, hasgiven the diagnosis of major depressive disorder but believes that she should takeCognitive Behaviour Therapy or Behaviour Therapy for a number of sessions and alsocertain antidepressants and believes that she should symptom free within a period of ninemonths after commencing same. As stated above I believe that the cause of herpsychiatric trauma is multifactorial but I accept that the accident triggered thesesymptoms and that the plaintiff was a bad candidate for any such trauma.39. The plaintiff’s physical injuries are soft tissue in nature which normally would recover in amatter of relatively short time but as Dr. Das has said sometimes they persist and in thiscase have become chronic. It is clear that the plaintiff’s injuries are not just subjectivegiven the medical findings such as spasm. Dr. Das is hopeful of at least a 50% resolutionwith his new medication but I find that the plaintiff is going to be left with some ongoingsymptoms into the future indefinitely.40. I also accept that the plaintiff has had a nasty time and has had a significant change inher lifestyle.41. Accordingly, I will assess the plaintiff as being in a moderate rather a severe categorythough the nature of the injuries has been far longer lasting than had been anticipated.42. Being fair and reasonable to both plaintiff and defendant I will assess her generaldamages to date at €60,000 and general damages into the future at €10,000.43. The total compensatory damages are €70,000 and in addition to that I award a sum of€10,000 for aggravated damages totalling the sum of €80,000.

Griffin v Hoare

[2020] IEHC 40 (24 January 2020)

JUDGMENT of Mr. Justice Barr delivered on the 24th day of January, 20201. This action arises out of a road traffic accident which occurred on 25th November 2014 at06:50 hours on the Caherciveen to Killorglin road in County Kerry. The plaintiff wastravelling in his Mitsubishi Lancer car going in the direction of Killorglin, when he crashedhead-on into the defendant’s lorry, which was travelling in the opposite direction.2. The section of the road on which the accident occurred had a number of bends and wasquite narrow. The width of the carriageway on the plaintiff’s side was 9’4″. To its leftthere was a gap of 3’6″ between the broken yellow lines and the Armco fencing, beyondwhich there was a sheer drop down to the sea. However, the Armco fencing wasembedded in shrubbery, such that the only usable surface on the plaintiff’s side was thewidth of the road carriageway itself.3. On the defendant’s side, the carriageway measured 10’8″. There was a margin of 2’3″between the yellow road markings on the side of the road and the mountainside, whichrose steeply to the left of the defendant’s vehicle. Again, due to vegetation and theproximity of the rock face, the defendant effectively only had the use of the carriagewayon his side of the road.4. The defendant was driving a lorry which was made up of a DAF cab and an articulatedtrailer attached thereto, which was going to be used to transport a consignment of treeswhich have been cut into logs. The trailer was empty at the time of the accident, as thedefendant was on his way to a forest to pick up the logs. The overall length of the lorry,including the trailer, measured 49 feet.5. It was common case between the parties that at the time of the accident, it was pitchdark and it was a damp and misty morning. The surface of the road was wet.6. There is a complete divergence between the plaintiff and the defendant in relation to thecircumstances which led to the head-on collision between the vehicles. In summary, it isthe plaintiff’s case that when he came around a right hand bend, he was met with a “wallof lights” which was taking up the entirety of the road. The plaintiff stated that he had noopportunity to take any evasive action but that he kept his vehicle driving in a straightline and collided with the front of the defendant’s lorry, and then spun around so that hisdriver’s side was wedged tight up against the front of the lorry, with the front of his carfacing out towards the sea. The plaintiff maintains that he was blinded by the lights onthe defendant’s vehicle because both the dipped headlight bulbs and the full headlights onthe front of the vehicle were on, as were the lights above the cab of the lorry. The plaintiffPage 2 ⇓stated that he was travelling at approximately 75km/h prior to the accident. He statedthat the speed limit on the road was 100km/h.7. The defendant’s account is that as he was driving along this stretch of winding road, hecould see the oncoming lights from the plaintiff’s car before he actually saw the vehicle.He saw the plaintiff’s car coming around the bend on its correct side of the road, but at aterrific speed. He states that the plaintiff then lost control of his vehicle, veered over ontohis side of the carriageway and then collided head-on with his lorry. The defendant statesthat when he first saw the approach of the plaintiff’s lights, he dipped his headlightswhich automatically turned off the lights on the roof of his cab.8. The defendant was adamant that, while the rear wheel of his trailer was partially over thecentre white line on the road, the cab itself was always on its correct side of the road. Hestated that he was not in any way responsible for the accident, as he had been travellingat approximately 30 – 40km/h and had slowed to approximately 20km/h at the time ofthe impact. He was of the view that the plaintiff was entirely responsible for the accident,as he had simply lost control of his car due to the fact that he was travelling far too fasthaving regard to the condition of the road surface and the fact that it was a narrow roadwith a number of bends.9. It is common case that after the collision, the plaintiff managed to get out of the frontpassenger door of his vehicle and was able to move away from the vehicle. Anothermotorist who had arrived on the scene, Mr. O’Sullivan, came to the plaintiff’s assistanceand brought him to sit in his van. The defendant had alighted from his lorry and as theplaintiff appeared to be in considerable pain and was shivering with cold, the defendantgot a jacket from his lorry and put it around the plaintiff’s shoulders. He then returned tohis lorry to await the arrival of the gardaí and the ambulance, which had been called toassist the plaintiff. The defendant did not suffer any injury in the accident.10. The Court heard evidence from the driver who had come to the assistance of the plaintiff.Mr. Dónal O’Sullivan lives in Caherciveen. He was travelling in the same direction as theplaintiff but was a considerable distance behind him. He stated that when he came aroundthe right hand bend as shown in photograph number one of the engineer’s photographs,he saw a lot of lights ahead of him. He did not know what it was. He just saw a lot oflights together. He slowed his van and almost came to a stop. He approached quite slowlyand then he saw the plaintiff walking on the road.11. Mr. O’Sullivan stated that he pulled his van in to the right hand side and was parked some6 feet behind the plaintiff’s car which was sideways at the front of the defendant’s lorry.He parked on the right, so as not to block the left carriageway of the road. He stated thatwhen he got out of his vehicle all he could see were lights coming from the front of thelorry. He stated that they were very bright. The lights were up high and were on.12. In cross-examination, Mr. O’Sullivan accepted that in a statement which he had made tothe gardaí on 6th January, 2015, he had not mentioned seeing any lights on any of thevehicles. He explained this by stating that he only answered the questions which thePage 3 ⇓garda had put to him. He had not been asked any questions about lights. He justanswered the questions so that he could get out of the Garda Station as fast as he could.13. It was put to the witness that in a telephone conversation which he had had with thedefendant’s solicitor on 15th March, 2019, the solicitor had made a memo of theconversation in which he recorded that the witness had said “he didn’t notice anything atall about the lights on the truck”. Mr. O’Sullivan stated that he had merely returned thecall to the defendant’s solicitor, when he saw that he had received a missed call on hismobile phone. He could not recall making that comment about the lights to the solicitor.However, when pressed on the matter, he conceded that if they defended and thesolicitor stated that he had made that comment, he would accept it, but he did not recallmaking that comment.14. He accepted that other portions of the memo were correct, in particular that he had notactually seen the collision and that the accident had occurred on a “dirty morning”.However, he took issue with the memo where it said that “he was driving behind the car”,as he had not been driving behind the plaintiff’s car, he had merely been going in thesame direction.15. Mr. O’Sullivan stated that he had not seen the damage to the plaintiff’s car. It was put tohim that having regard to the extensive frontal damage to the plaintiff’s vehicle, as shownin the Garda photographs, it was implausible for him to say that he was not aware of thatdamage. The witness stated that when he pulled in his car, he saw the plaintiff walkingaway from his vehicle in obvious pain. His primary concern was to aid the plaintiff. It hadbeen a very dark morning and he had approached the vehicle from the passenger side.For all of these reasons he had not taken account of the extensive frontal damage to theplaintiff’s car.16. Mr. O’Sullivan stated that while he did not know the plaintiff, he had known the plaintiff’sdeceased father and also knew the plaintiff’s mother.17. Evidence was given by Mr. James O’Brien, a forensic collision investigator retained onbehalf of the plaintiff. He stated that he had been a member of An Garda Siochána for 37years, until he retired in July 2019. He had spent the first 10 years in Dublin andthereafter he had been the PSV Inspector and the forensic collision investigator (FCI) inCounty Kerry. In 2001 he had become a specialist forensic collision investigator. He haddone a level 7 course in police forensic collision investigating in London. That was done inthe City and Guilds Institute and was a four-year long programme. He had also done amechanical engineering degree in LIT. Since 2001 he had been part of the forensiccollision investigation team for Munster. They have regularly examined accident scenes.They would be called out to look at approximately 25 accident scenes per year. This wasonly in respect of fatal accidents, accidents in which there were life changing injuries,meaning loss of a limb, or accidents involving state vehicles. Since his retirement he hadbeen in private practice as a forensic collision investigator working with a company calledAssess Ireland.Page 4 ⇓18. Mr. O’Brien stated that the Garda photographs were “live” in that they had been taken atthe scene of the accident in the immediate aftermath thereof. It was clear fromphotograph number two that the rear right wheel on the defendant’s trailer was over thecentre white line. He was of the view that on close inspection of photograph number one,it was just about possible to make out the centre white line directly in front of thedamaged portion to the front of the plaintiff’s car as shown in that photograph. Thatindicated that at that point the front of the defendant’s lorry was some 8 – 10 inches onthe plaintiff’s side of the road.19. Based on photographs one, two and three, he was of the view that the defendant’s lorrywas slightly at an angle pointing to its left, towards the mountainside. This indicated tothe witness that the lorry had been in the process of moving to its left, into its correctlane, in the moments prior to and at the time of the impact between the vehicles. Thedirection of travel of the lorry was back in towards the left margin.20. In relation to the lights on the defendant’s lorry, there were four lights at the front of thecab. These were made up of the dipped beams which would point downwards onto theroad surface and slightly to the left. There were also the full headlight beams which wouldpoint directly straight in front. On this lorry there were also four lights mounted on theroof of the cab. These were activated by a switch on the steering column, which meantthat they could be turned off completely so that they would never come on, e.g. whenone is travelling in a city or built-up area, or they could be switched on such that theywould become operational whenever the full headlights were put on. The lights mountedon the cab would point downwards onto the road so as to illuminate an area ofapproximately 100m in front of the vehicle.21. It was also necessary to have regard to the wet surface of the road which will act in areflecting manner such that the lights from the vehicle would also be reflected back fromthe road surface itself, as could be seen with the Garda vehicle shown in photographsnumber six and seven.22. In relation to the respective weights of the vehicles, he estimated that the defendant’slorry weighed approximately 20 tonnes and the plaintiff’s car weighed approximately 1tonne.23. Mr. O’Brien stated that if the plaintiff had been travelling at the speed stated by him of 75km/h and the defendant had been travelling at approximately 40 km/h, reducing to 20km/h at the time of the impact, that would give a closing impact at the point of collisionof approximately 100 km/h. Having viewed the Garda photographs showing the damageto the plaintiff’s vehicle, it was clear that the overall damage had been caused by acombination of two impacts. The first impact had been between the front of the plaintiff’scar and the front of the defendant’s lorry, with the damage thereto being primarily in thecentre of the front of the lorry extending to its left. The secondary damage to theplaintiff’s car had been caused to the driver’s door and was due to the spinning of the carafter the initial impact and it becoming wedged against the front of the defendant’s lorry.Page 5 ⇓24. He was satisfied that the estimate of a closing speed of approximately 100 km/h at thepoint of impact was accurate having regard to the damage done to the vehicles, and inparticular the damage done to the plaintiff’s car. In this regard it was important to notethat all of the initial impact had been absorbed by the frontal zone of the car which hadcrumpled and had been extensively damaged, as shown in the photographs. However, theA pillar holding the windscreen had not been extensively damaged, nor had there beenextensive damage to the driver’s compartment of the car, nor had the windscreenshattered. He was satisfied that the damage to the plaintiff’s vehicle was consistent withthe speed as described by the plaintiff in his evidence. He would not estimate theplaintiff’s speed as being any greater, because if it had been greater he would haveexpected to have found damage to the A pillar, damage to the floor of the plaintiff’svehicle and damage to the front passenger door.25. Mr. O’Brien stated that if the lights on the defendant’s vehicle, including the cab lights,had been fully illuminated, that would have been dazzling and disorientating for the driverof an oncoming vehicle, particularly as such lights would also have been reflected fromthe wet road surface.26. In cross-examination Mr. O’Brien accepted that the accident had happened on theplaintiff’s incorrect side of the road. He accepted that the plaintiff had hit the portion ofthe defendant’s lorry that was on its correct side of the road as the impact had occurredto the centre and left side of the front of the lorry. He did not accept that the end positionof the lorry was straight, but was nosed slightly to the left. He accepted that he had notmentioned that in his report. He confirmed that he had visited the location in advance ofgiving his report.27. He accepted that each of the vehicles would have had a sight distance of in or about100m given the locus of the accident as identified by the plaintiff in photograph numbertwo of the engineer’s photographs. He accepted that on a dark morning one would beaware of the lights of an oncoming vehicle before one actually saw it. He thought that thelights might have been visible up to 150m. He confirmed that there had been no breakmarks at the scene from either vehicle, but that was not significant, given that the roadsurface had been wet. He accepted that the plaintiff was incorrect when he stated in hisevidence that he thought that he had at all times stayed on the correct side of the road.He believed that the plaintiff had veered to his right in an effort to avoid the oncomingvehicle as he knew that he had the ocean to his left.28. Mr. O’Brien did not accept that there was plenty of room for the plaintiff to pass thedefendant’s lorry had he stayed on the correct side of the road. He did not accept thatsuch proposition was feasible having regard to the position of the oncoming cars as shownin Garda photographs number two and three. He pointed out that those cars wereproceeding at a slow pace and in a controlled environment under Garda supervision.29. He did not accept that the plaintiff would have been aware of the approach of thedefendant’s vehicle from seeing its headlights, because given the contour of the road asshown in photograph number two of the engineer’s photographs, the headlights of thePage 6 ⇓oncoming lorry would have been pointing into the mountain until it rounded the righthand bend which it made before coming to the portion of the road shown in photographnumber two.30. In re-examination, Mr. O’Brien stated that having regard to the length of the lorry, andthe position that it was in, as shown in the Garda photograph number 12, he was of theview that it was pointing in towards its left at the moment of impact. This suggested thatthe direction of travel of the lorry in the seconds prior to the impact had been bringing thelorry from the incorrect side over onto the correct side of the road. This suggested thatapproximately 15m back, the lorry would have been more out onto the incorrect side thanat the point of impact.31. Evidence was also given by Mr. Vincent Kelly, consulting engineer. He confirmed thewidths of the carriageways on either side of the road as outlined earlier in the judgment.He confirmed that each vehicle would have had a sight line of the other of approximately120m. He stated that Garda photograph number two showed that the rear of thedefendant’s vehicle was approximately 1 foot over the centre white line. He was not sureabout the wheel of the cab of the lorry. It may have been inside the centre white line.32. He felt that the core issue in this case was whether the plaintiff had been blinded by thelights on the defendant’s lorry. If they had been illuminated, then an oncoming drivercould have been blinded, such that a person’s decision-making would be taken out of syncbecause they would not prepared for such an eventuality. It was an uncertain situationbecause the driver would not know what was behind the wall of lights. In suchcircumstances they were likely to make errors. Their capacity to deal with the emergencywould have been reduced.33. In cross-examination he accepted that some of his evidence-in-chief had not beencontained in his report. He accepted that he had not commented on the position of thelorry, but he had only had black and white photographs of poor quality at the time that hemade his report. He had since been furnished with colour copies of the Gardaphotographs. Even with the benefit of these photographs he could only say that the rearwheel of the lorry appeared to be outside the centre white line. He could not saydefinitively where the front wheel was located on the road surface. He could not saywhether there was a white line visible in Garda photograph number one. He accepted thatit was not possible for him to give an opinion as to what speed the vehicles weretravelling at the time of the impact from the photographs that have been supplied to him.He was not able to understand how Mr. O’Brien could give such an opinion.34. Having considered carefully all of the evidence given by the plaintiff and the defendant,together with the evidence given by the independent witnesses and having regard to thephotographs that have been furnished to the Court, together with the reports which havebeen handed into the Court, it has been possible for the Court to reach a decision in thiscase. There is no real controversy as to the point of impact between the two vehicles.This was a head-on collision between the front of the plaintiff’s car and the front of thedefendant’s lorry, primarily to the centre of the front of the lorry and extending to its left.Page 7 ⇓It is clear from Garda photograph number one that the right-hand portion of the front ofthe defendant’s lorry was not damaged. In particular the front headlight appears to havebeen undamaged and was working after the impact.35. In relation to the point of impact on the road, the Court is satisfied that contrary to theplaintiff’s evidence the collision occurred on the defendant’s side of the road. It is clearthat after the frontal collision occurred the plaintiff’s car spun around and came to restwith its driver-side wedged against the front of the cab. It is clear from the Gardaphotographs that the plaintiff’s side of the road remained largely, though not completely,clear.36. The Court is satisfied that the defendant’s lorry was partially on the incorrect side of theroad. This is clear from photograph number two of the Garda photographs, which showsthe rear of the trailer extending over the centre white line onto the incorrect side of theroad. Indeed, the defendant himself accepted that that was likely having regard to thefact that he had just made a right hand turn coming around a bend and due to the factthat the vehicle was an articulated lorry. However, the Court does not accept thedefendant’s evidence that at all time the cab remained on its correct side of the road andwas so positioned at the time of the impact. The Court is satisfied that from a closeexamination of photograph number one, the centre white line can be seen running almostcontinuously under the cab and proceeding towards the camera under the front rightheadlamp and in front of the damaged portion of the plaintiff’s car. While that is notentirely clear from photograph number one, such position is clear from photographs 12and 13, which were taken in daylight hours and show the white line immediately in frontof the damaged portion of the plaintiff’s car.37. That being the case, the Court accepts the evidence of Mr. O’Brien that the direction oftravel of the defendant’s lorry was probably proceeding from a position that was more onthe incorrect side of the road to a position on the correct side at the time of the impact.Accordingly, the Court accepts the view put forward by Mr. O’Brien that in the secondsprior to the impact, the defendant’s vehicle was, on the balance of probabilities, more onthe incorrect side than at the time of the collision.38. The Court is satisfied that neither vehicle was going excessively fast at the point ofimpact. The Court accepts the evidence of the defendant that he was travelling circa 30 –40km/h, slowing to circa 20km/h at the time of impact. The Court also accepts theplaintiff’s evidence that he was travelling at circa 75km/h as he came around the bend asshown in photograph number one, and proceeded onto the slight straight stretch inphotograph number two. In this regard, the Court accepts the evidence of Mr. O’Brien. Heis a witness with specialist forensic collision investigation skills. He has been trained to avery high degree in this area and has many years’ experience investigating suchaccidents. It seems to the Court that he is correct when he states that the entirety of theinitial damage, which is caused by the initial impact, was to the frontal portion of theplaintiff’s car. The Court accepts his evidence that there does not appear to be significantdamage either to the A pillar, or to the driver’s compartment, or to the floor thereof, or toPage 8 ⇓the front passenger door, and that the absence of such damage is indicative of the factthat the plaintiff was not travelling at a speed greater than that stated by him. The Courtis satisfied that the damage to his vehicle is consistent with his evidence in relation to hisspeed.39. The only evidence in relation to the applicable speed limit on this road, was that given bythe plaintiff, which was to the effect that the applicable speed limit was 100km/h. Thatevidence was not contradicted.40. In these circumstances the Court is satisfied that the plaintiff was not travelling at anexceedingly fast speed as he rounded the corner as maintained by the defendant. It isalso significant that the defendant accepted that the plaintiff was on his correct side of theroad when he first saw the plaintiff’s vehicle. Both parties are in agreement that the locusof the collision was somewhere on the road as shown in photograph number two of theengineer’s photographs at approximately the point from which the photographs weretaken in photographs number three and four.41. The question which therefore arises is: if the plaintiff was not travelling at an excessivespeed and was on his correct side of the road when first seen by the defendant, whatcaused him to veer across the road onto his incorrect side and collide head-on with thedefendant’s lorry? It seems to me that the only rational explanation is that he was blindedby a wall of light emanating from the front of the defendant’s lorry, due to the fact thatthe full headlights were on, together with the lights on the roof of the cab, and that thoselights were also being reflected from the wet surface of the road. Accordingly, I accept theplaintiff’s evidence that he was met with a “wall of light” when he rounded the bend asshown in photographs number one and two of the engineer’s photographs.42. I accept the evidence of Mr. O’Brien and Mr. Kelly, which indeed was accepted as aproposition by the defendant, that if his full headlights and cab lights were on, anoncoming driver would be dazzled and would become disorientated and could possiblylose control of his vehicle. I am satisfied that this was the most likely explanation for whya car that was not travelling at excessive speed should veer across the road and collidehead-on with an oncoming lorry.43. While there was no specific evidence given on this, my rough calculations would suggestthat if the plaintiff was travelling at 75km/h and the defendant was travelling at 40km/h,reducing to 20km/h at the point of impact, and given that they had a sight line ofapproximately 120m, the two vehicles would have met one another in a time of in orabout four seconds.44. The plaintiff’s account of the full lights being on on the defendant’s vehicle as he roundedthe bend, is supported by the evidence of Mr. O’Sullivan. His clear evidence was that thecab lights on the lorry were illuminated when he came upon the scene. While it iscertainly true that Mr. O’Sullivan is known to the plaintiff’s mother and was known to hisdeceased father and while he appears to have been recorded as having said something tothe contrary to the defendant’s solicitor in a telephone conversation on 15th March, 2019,Page 9 ⇓I am satisfied on the balance of probabilities that this witness has done his best to tell thetruth in his evidence to the Court. Having seen and listened to this witness, I am satisfiedthat he has not told a series of untruths with a view to assisting the plaintiff in making anunfounded claim against the defendant. I accept his account of what he saw when hecame on the scene.45. Having watched and listened to the plaintiff give his evidence I am satisfied that he is anhonest gentleman and that his account of being met with a “wall of light” was a truthfulstatement of evidence and correctly described the situation with which he was confrontedas he rounded the bend on the morning in question.46. Taking all of these matters into account, I am satisfied that this accident was caused bythe negligence of the defendant in driving partially on the incorrect side of the road andmore importantly, in driving with his full headlights and roof lights on at a time when itwas unsafe and dangerous to do so, having regard to the presence of oncoming traffic onthe road at that time. Accordingly, liability for this accident must rest with the defendant.47. As I’ve already found that the plaintiff was not travelling at an excessive speed at thetime of the accident and as I am satisfied from the evidence given by Mr. O’Brien and Mr.Kelly that once the plaintiff was dazzled by the lights coming from the defendant’svehicle, the ensuing consequences, whereby he veered across the road and collided intothe defendant’s vehicle, was not due to any negligence on the part of the plaintiff.Accordingly, I do not find any contributory negligence against him.48. I turn now to consider the plaintiff’s injuries. The plaintiff is a young man of 27 years ofage, having been born on 27th December, 1992. At the time of the accident he wasnearing the end of his apprenticeship as an electrician. On the day of the accident he wastravelling to Cork Institute of Technology for a final lecture, before an exam on thefollowing day. Notwithstanding the injuries sustained in the accident, he managed tocomplete his apprenticeship and qualified as an electrician in Spring 2015.49. As a result of the accident, the plaintiff suffered a comminuted fracture of his left patella,a fracture of his right clavicle and multiple abrasions and soft tissue contusions. He wasadmitted to Kerry General Hospital, where he was admitted for four days. During thisperiod he was brought to the operating theatre, where the knee fracture was stabilisedwith open reduction and internal fixation. The clavicle fracture was treated conservativelyby immobilising the shoulder in a sling.50. On 24th April, 2015, the plaintiff was brought to theatre for removal of the tension bandwiring. His knee was also manipulated under general anaesthetic. A left knee arthroscopywith debridement was carried out on 6th May, 2015. He had a further manipulation underanaesthetic in November 2016. His knee was also injected on one location.51. The plaintiff has experienced significant pain and disablement as a result of the fracturesand in particular as a result of the patellar fracture. Prior to the accident he had been akeen footballer playing with his local club, St Michael’s/Foilmore GAA Club. He has notPage 10 ⇓been able to play Gaelic football since the accident. Of perhaps more concern to him, isthe fact that he has been unable to pursue his chosen career as an electrician as a resultof the injuries sustained in the accident.52. He was able to manage the completion of his apprenticeship due to the fact that he wasworking with his uncle, who was aware of his injuries and was accommodating in relationto his work requirements. The plaintiff gave evidence to the Court that he had tried on anumber of occasions to return to work with his uncle as an electrician. He had onlymanaged to do a few days here and there, but had had to desist from such efforts due tosevere knee pain. In particular, he is not able to squat or kneel without experiencingsevere knee pain. This makes work as an electrician almost impossible for him. Inaddition, he has difficulty using ladders and is fearful when working with them due toinstability in his knee.53. The plaintiff did two periods of bar work, the first lasting for 6 – 7 months and the secondlasting for approximately 8 months. He was able to manage the work, but he found itdifficult due to prolonged periods of standing. In 2016, the plaintiff did some farmingwhen he rented a neighbour’s farm, which was 50 acres, but much of that was bog. In2017 he took over working his mother’s farm. He finds that he is able for this workbecause he can manage what jobs he does and he can take breaks as necessary. Inaddition, he uses a quad bike and tractor to get around the farm. The farm consists of drycattle and sheep, so the work is not too strenuous. He brings in a contractor to do thesheep shearing.54. In relation to his present condition, the plaintiff stated that his right shoulder wasrelatively good. He has a full range of movement in it. He gets occasional pain in theshoulder, which can come on spontaneously, or if he does overhead work.55. The plaintiff stated that his knee was still very bad. It would be painful when standing orsitting for a long time. He had had more than 20 sessions of physiotherapy, but was nothaving any treatment at present. He was not taking any medication. He has beendischarged from medical care and has been told that with the exception of possible futureinjections to the knee, no further surgical treatment is anticipated.56. He has difficulty lying in certain positions in his bed and the knee can stiffen if he is sittingwatching television for too long. The knee can be stiff when getting up in the morning. Hehas been told that arthritis will be a problem for him.57. The Court had the benefit of two medical reports, being a report from Mr. Kieran Barry,consultant orthopaedic surgeon in Cork, based on an examination on 5th July, 2018, anda report from Mr. Tony Higgins, consultant orthopaedic surgeon at University HospitalKerry, who was the treating surgeon and who examined the plaintiff on 19th December,2018. Both reports confirm the injuries as outlined above and the surgical treatment aspreviously described.Page 11 ⇓58. Mr. Higgins noted that the plaintiff was unable to kneel on his left side. He was of theopinion that the plaintiff will not be able to work as an electrician which will obviouslyrequire squatting and kneeling on a regular basis. He noted that further treatment in theform of injections to the knee may be indicated. Both doctors were in agreement that asthere had been disruption of the articulating surface of the patella, the plaintiff was placedat risk of developing post-traumatic patella femoral osteoarthritis in the longer term.59. The Court was impressed with the plaintiff in his account of his injuries. He did notattempt to exaggerate either the level of his symptoms nor the extent of his ongoingdisablement. The Court is satisfied that he has given a truthful account both of his injuriesto date and as to his present condition. This young man suffered a serious injury to hisleft knee together with a less serious fracture to his right clavicle.60. He has been disabled in the work aspects of his life, in that, while he can pursue someforms of employment such as farming, he has been deprived of the ability to pursue hischosen career as an electrician. In fairness to the plaintiff, he did not make a great dealabout that, but the Court appreciates that it must be a source of some sadness ordisappointment to him. The Court is also mindful that as a young man, he has beendeprived since the accident of the ability to pursue his sporting career as a Gaelicfootballer. In a rural community, that is a serious loss to a young man who was engagedin sporting activity with his local club. The Court is satisfied that the plaintiff continues toexperience the pain and suffering which he described in his evidence. The medicalevidence before the Court is that he will experience symptoms in his knee into the futureand is likely to develop post-traumatic osteoarthritis in the future.61. Taking all of these matters into account, the Court awards the plaintiff the sum of€85,000 for pain and suffering to date and the sum of €70,000 for pain and suffering intothe future, together with agreed special damages of €5,968 giving a total award in favourof the plaintiff of €160,968.

Result: Plaintiff’s claim for damages arising out of a personal injury successful

Duffy v McGee

[2020] IEHC 704 (04 December 2020)

JUDGMENT of Mr. Justice Kevin Cross delivered on the 4th day of December, 2020

1. The plaintiffs in these two proceedings are husband and wife. Mr. Duffy was born on the 11th April, 1975 and he worked prior to the indexed instances as a delivery man sometimes holding down two jobs, and resides with his wife and family in Annagry in West Donegal.

2. Mrs Duffy was born on the 9th June, 1977. She attained Leaving Cert standard but did not sit her Leaving due to some health issues and when she returned the following year she decided not to proceed as all of her friends had moved on. She was employed in various jobs including in the post office, spent a time in New York, she was also employed full-time in a well-known Donegal solicitor as a book-keeper and after the crash of the economy in 2008 she went part-time.

3. The two plaintiffs married on the 25th June, 2005 and after some years trying for a child, a daughter, Charlie Jo, was born in August 2013.

4. The couple set about building a fine house at Annagry which was built primarily by Mr. Duffy and his family and friends. The house comprises four bedrooms, one on the ground floor and three upstairs, a living room and kitchen, sitting room and a dining room/sunroom off the kitchen.

5. Both Mr. and Mrs. Duffy took great pride in their house and moved in before all rooms were finished, gradually decorating the other rooms and later built a large garage to the side of the house.

6. After the birth of Charlie Jo Mrs. Duffy suffered from post-natal depression and gave up work. Mrs. Duffy was certified on one occasion as being permanently unfit for work but she herself says that she intended to return at least part time when Charlie Jo went to school.

7. In January 2016 the plaintiffs decided that they would further insulate the house including the sunroom with a spray foam known as Icynene and engaged the first named defendant for this purpose.

8. Icynene is a product manufactured in Canada and imported and distributed in Ireland by the second named defendant.

9. Icynene is sprayed from a spray gun in the form of foam which hardens after contact with the area of the roof or walls to be insulated. The foam is a union of two compounds which unite in the spray gun. Compound A consists of Isocyanate which is a well-known highly toxic substance and compound B, the exact makeup of which is not clear is also toxic but less so than compound A.

10. The compound was sprayed by the first named defendant’s workers on the 18th February, 2016. Originally the job was expected to be a two day one but was in fact completed in just one day.

11. Mr. Duffy was out of the house working during the spraying and there is a dispute as to whether Mrs. Duffy and Charlie Jo were present in the house during the spraying but in any event Mr. Duffy returned from work sometime around 5 pm and the Duffys stayed in the house that evening having noticed a smell. They were advised to leave the windows open and did so for some time. Each of the plaintiffs noticed some symptoms next day which they made little of putting it down to usual colds or flu and Charlie Jo also suffered some symptoms eventually they took Charlie Jo to hospital and on examination were questioned as to whether she and they had been exposed to any chemicals.

12. The plaintiffs allege that as a result of their exposure to the chemicals inserted by the defendants and due to the negligence of the first named defendant in the manner of application and in their failure to properly ventilate the house and in their failure to require the plaintiffs to be out of the house for the requisite period that each of the plaintiffs have suffered what are undoubtedly significant serious and life affecting injures.

13. Charlie Jo was apparently also injured due to the same alleged exposure and has brought separate proceedings which are not before me.

14. The defendants deny liability and submits that Icynene nor neither component A or B could, as a matter of scientific certainty, have caused the problems suffered by the plaintiffs and suggest as an alternative that they may have been exposed to the fiberglass or plasterboard after their removal from the roof or in the walls of the sunroom. There was little if any agreement on any matter between the parties and the case lasted for seventeen days full hearing.

15. At the conclusion of the first named defendant’s case counsel on behalf of the second named defendant applied for a direction and indicated that if I refuse that they would go into evidence and I ruled that I would refuse the application for direction at that stage and hear any evidence that they might want to tender. At the end of the second named defendant’s case the application for a dismiss was renewed and I granted same on the basis that there was no evidence against the second named defendant.

16. Accordingly, the issues in this case on liability is whether the plaintiffs’ undoubted injuries were caused by reason of negligence of the first named defendant in the application of the chemical foam and/or their actions or inactions after the application.

17. It will first be necessary to determine the main facts of the case as they relate to liability, as these are just as much in issue as the scientific and technical theories as to why the plaintiffs were injured.

18. Having determined the factual issues, I will then determine whether the first named defendant was negligent or in breach of duty and if so I will address the issue of causation and as to whether any negligence found was responsible for the plaintiffs’ injuries before considering should it be applicable the issue of damages.

The facts

I find the following facts-

19. I find that prior to the indexed events both of the plaintiffs did suffer from some respiratory ailments that may or may not have made them more vulnerable to exposure to irritants.

20. Mr. Patrick Duffy was an exceptionally highly regarded diligent worker who when he ceased working, after the index events, his employer was very distressed that he had to give up work. After his initial injury his employer was prepared to accommodate him doing lighter work which Mr. Duffy was unable to complete.

21. Mrs. Duffy was clearly a very bright intelligent person who in effect trained herself up to being a bookkeeper in a well-known busy solicitor’s office. She did suffer from post-natal depression after the birth of Charlie Jo and this depression was probably greater than she herself believes and whereas there is a question mark as to whether she would have returned to work I accept her evidence that after Charlie Jo went to national school it was her intention to attempt at least some work.

22. I find that prior to the indexed events both of the plaintiffs enjoyed active life and hobbies and Patrick Duffy enjoyed not inconsiderable sporting achievements, earlier in his career, in Donegal football playing for his county at the under 21 level. While his football may have been coming to an end I have no doubt that life was very good for both of the plaintiffs prior to the indexed events. Both of the plaintiffs were fit and active and Mrs. Duffy’s postnatal depression did not prevent her from a reasonably full and active and enjoyable life.

23. I find that both Duffys took great pride in their house that they built in Annagry and would have continued to live in it where it not for the indexed event.

24. I note that they had placed the house on the market with an auctioneer some years prior to the indexed events but I accept their evidence and find that this was because they were fearful that a “rogue builder” who had bought land in front of them was going to attempt to build houses to spoil their view of the sea without planning permission but it does not seem that they took the possible sale of their house beyond placing the property with an auctioneer who valued the property. The “rogue builder” was stopped from building in front of the plaintiffs’ house and nothing further was done in relation to a sale. The plaintiffs from then on until the indexed events were happy to be in their house.

25. I also find that the garage which was subsequently built beside the property was built without planning permission and they had to get retention thereto and also that the septic tank they constructed was not in accordance with regulations and that when they sold the house they had to agree a reduction of price because of this fact.

26. I find that the plaintiffs had originally insulated the attic and roof of their house with a conventional fibreglass insulation but decided to give themselves extra comfort by installing the defendant’s product having researched same on the internet.

27. I find that Mr. Duffy contacted the first named defendant the local supplier of Icynene and he reassured the plaintiffs that the product was safe. In January 2016 Mr. McGee inspected the house and went into the attic with Mr. Duffy to take measurements.

28. The work in the roof involved removal of fibreglass wool installation in the roof, the cutting open and later resealing of three holes, one in the landing area and two in the bedroom areas as well as the application of the Icynene.

29. I accept the evidence of Mrs. Duffy and Mr. Duffy and I find that, in January 2016, Mrs. Duffy asked Mr. McGee whether the product was safe and he reassured them that it was. Mrs. Duffy’s main concern was that Charlie Jo was a baby and Mr. McGee said the product was fully safe, breathable and water blown doesn’t off gas and that it was it the best product on the market.

30. Mr. and Mrs. Duffy are adamant that at no stage was there mention that they would have to vacate the house during the installation or do so for any time thereafter. Mr. McGee is adamant that he advised the Duffys that they would have to be out of the house for two hours after the spraying had finished.

31. Issues of liability will be considered later but I have no doubt and so find that Mr. and Mrs. Duffy were not at any stage appraised that their absence from the house was required as a matter of personal safety for themselves or Charlie Jo. I have no doubt whatsoever that had they been so appraised that Mrs. Duffy would have left the house with Charlie Jo before the spraying commenced and none of the Duffys would have returned until they were assured it was safe to do so.

32. I come to this conclusion not just because I have no doubt that the Duffys are rightly particular in relation to their own safety and even more rightly particular in relation to the child’s but it is clear that Mr. McGee’s recollection of the entire event is less than accurate. Mr. McGee was apparently still under the impression in 2019, when consulting his then expert, that the job had taken two rather than one days. If Mr. McGee could not recall until presumably he later consulted his records that it was just a one-day job, I have no doubt that his recollection in relation to the minutiae of what occurred is defective and I prefer the evidence of Mr. and Mrs. Duffy on whose minds the events are clearly etched.

33. I fully accept that Mr. McGee believes at this stage that he did tell Mr. and Mrs. Duffy that they should not be in the property during the spraying and for two hours thereafter. I accept that this is Mr. McGee’s usual practice. Mr. McGee at all stages remains convinced of the absolute safety of his product in any circumstances and I find if he did mention to Mr. and Mrs. Duffy the desirability of them being out of the property it was not so mentioned as a matter of safety concern and Mr. McGee made no attempt to enforce the absence of the plaintiffs from the house for the two-hour period.

34. Mr. McGee accepts that he did not cordon off the house with any signs while the process was taking place and he did not furnish Mr. or Mrs. Duffy with the data sheets or safety dockets or get them to sign any of same.

35. I find that when he was upstairs in the property during his inspection in January 2016, Mr. McGee indicated that due to the configurations of the house he would have to remove the old insulation from the eaves behind the plasterboard upstairs and his product would have to be applied there as well as the roof, and that as part of the attic space could not be accessed from the main opening he would have to cut three holes in the ceilings. Mr. McGee indicated that his workmen would repair the openings subsequent to the installation and that it would be a clean job.

36. Mr. McGee contends that it was always part of his contract with the plaintiffs that an alternative contractor should repair the openings in the ceiling and Mr. Duffy insists that this was only agreed on the evening of the day of the installation. I accept Mr. Duffy’s evidence as it is supported by the evidence of the contractor Mr. D. who says that he was contacted by Mr. Duffy on the evening of the installation to ask him to repair the opening on the next day.

37. Having inspected the upstairs of the house Mr. Duffy then asked about the sun room downstairs which was always cold and difficult to heat and Mr. McGee indicated that the ceiling would have to be removed as well as the old fibreglass insulation and that specialised contractor would be required to do this. Mr. McGee asked that the other contractor should remove the plaster work in the sun room on the day of the spraying before the spraying could commence, and then reinstate it on top of his product. I find that this was the first mention of another contractor and Mr. Duffy later engaged Mr. D. for this work in the sun room.

38. A price of €4,000 including VAT was agreed and it was agreed that the work would commence on the 18th February and take two days.

39. On the morning of the 18th February the other contractor Mr. D. arrived with two workmen to work on the sun room and then Mr. McGee arrived and his two workmen arrived separately with their van and spraying equipment.

40. I find that at that stage Mr. Duffy was present with Mrs. Duffy and Mr. D. commenced work on the sun room putting a plastic sheet over the double door between the sun room and the kitchen to protect the main house from the dust caused by Mr. D’s work.

41. Again I accept Mr. Duffy’s evidence as his recollection is clearly far superior to that of Mr. McGee’s that when Mr. McGee arrived at the house on the 18th February, Mr. McGee walked through the job upstairs with Mr. Duffy and indicated that as his workman was small in stature that the holes to enable him to get access into the roof would be small and that while Mr. D. was working on the sun room Mr. McGee’s workers could be removing the existing fibreglass insulation in the roof. I accept that in fact what Mr. McGee’s workmen did was not to remove the fibreglass in the roof but to relocate the fibreglass onto the floor of the attic to provide some extra insulation and there is no criticism of Mr. McGee’s workers use of this fibreglass.

42. I find that Mr. Duffy then departed for his work for the day leaving Mrs. Duffy and Charlie Jo and Mr. D’s workmen and Mr. McGee’s workmen on the site and Mr. McGee left the house himself to do other pricing work.

43. Mr. McGee is of the opinion that Mrs. Duffy said that she was leaving for her mothers and that he took this as being confirmation that she would be out of the house during the spraying and for two hours thereafter. I find that Mr. McGee is mistaken in this conclusion as Mrs. Duffy’s trip to her mother’s was only ever going to be of short duration whatever Mr. McGee thought.

44. I find that when Mr. McGee left the property Mrs Duffy and Charlie Jo were still there and when the first defendant’s workmen were starting work on the ceiling preparing it for the installation and they ought to have been aware that Mrs. Duffy was in the kitchen with Charlie Jo.

45. I accept the evidence of Mr. D. that during the day he saw Charlie Jo walking or running around the outside of the sun room as he worked on it. I accept the evidence that it was Mr. McGee who suggested to Mr. Duffy that Mr. D. and his workmen patched up the holes in the ceiling as Mr. D. was a professional plasterer who would do a better finish than Mr. McGee and his workers and that these holes were plastered the day after the original installation by Mr. D. There was one opening in the master bedroom ceiling, one in the dormer hallway and one in another bedroom.

46. I also accept the evidence of Mr. D. that having removed the fibreglass from the walls and placed it in the garage that he and his men left the sun room and had lunch and the first named defendant’s workers then applied the foam to the sun room. After the first defendant’s men finished the sun room they left to work in the ceiling. Mr. D. and his workmen then returned to the sun room to put back the plasterboard on top of the foam insulation and were never advised that they should wait any two hour or any period or that they should have special breathing apparatus when they were in the sun room.

47. I also accept the evidence of Mrs. Duffy that the first named defendant’s workmen or one of them was seen by Charlie Jo with his protective equipment and he made some joke to Charlie Jo to the effect that he looked like a spaceman. I have no doubt that this was to reassure the young child but it is indicative of the fact that the first named defendant and his employees were aware that Mrs. Duffy and Charlie Jo were present in the house at the time that the spraying was going on.

48. I find that Mrs. Duffy left the kitchen with Charlie Jo to go to her mother’s house which was nearby. This was only ever for a short social visit and then she returned to the house by which time Mr. McGee’s men were upstairs. Mr. McGee may have been advised that Mrs. Duffy was going to visit her mother and may have taken it that this visit was for the entirety of the day but that was a wrong impression and Mrs. Duffy never told Mr. McGee that she would be out of the house for the day as she was not aware that this was necessary for safety. Mr. McGee’s workmen were or ought to have been aware that Mrs. Duffy and Charlie Jo were in the house during the main part of the spraying and took no steps to insure that Mrs. Duffy and Charlie Jo left the site or to cordon off the house to prevent anyone accessing same.

49. I accept the recollection of Mr. Duffy that when he returned home at approximately 5 o’clock Mr. McGee was back in the property and his men where finishing up. At that stage Mrs. Duffy and Charlie Jo were in the kitchen and Mrs. Duffy indicated that the workmen were cleaning up.

50. Mr. McGee denies that he met Mr. Duffy on the evening of the work. There is no doubt that Mr. McGee did return himself at around 5 pm when his workmen were clearing up but as outlined above I accept that he did meet Mr. Duffy in the house and that it was on this occasion that it was agreed that Mr. D’s workmen should repair the openings the next day and on being advised by Mr. Duffy that he could smell a smell he was then reassured by Mr. McGee and told that he should leave the windows open.

51. Also I find it was at this meeting between Mr. McGee and Mr. Duffy that Mr. Duffy expressed surprise that the job was finished in one day rather than two but was advised that this was explicable by the fact that the work was carried on quicker than had been anticipated.

52. I accept that Mr. and Mrs. Duffy left the windows open that night but had to close them later due to the cold and that the window in bedroom 2 in which Mrs. Duffy was sleeping with Charlie Jo, who had generally difficulty in sleeping in an ordinary bed at the time, was incapable of being opened.

53. In relation to ventilation I find that while neither Mr. or Mrs. Duffy was aware of any ventilation or extraction machine and Mr. D. indicated that when he and his men came back to the sun room to put back the plasterboard after the insulation was completed that there was no ventilator and at no stage did he see any ventilator in the property, I accept that Mr. McGee had one ventilator, the dimensions or capacity of which are not at all clear working in the sun room while his workmen were applying the insulation and once they had finished they removed this ventilator to the landing. I accept the evidence of Mr. KG, the plaintiff’s engineer and so find that the structure of the roof, which required three separate openings because different areas were isolated from the main, also required that each of these areas be separately ventilated. I accept that the nozzle of the ventilator was placed in each of the spaces in which the foam was being applied and then the extractor was left working in the landing for an indeterminate period of not more than two hours until approximately 5 pm. The foaming work was apparently finished at approximately 3 pm.

54. The next day Mr. D. closed the opes and skimmed over them and plastered them and finished them.

55. The first named defendant was paid by Mrs. Duffy the next day who complimented him on a good job and a warranty was given.

56. On the night of the installation I find that there was a pungent smell and Mrs. Duffy and Charlie Jo went to bed in the room in which the window could not be opened. Charlie Jo had difficulty in sleeping in an ordinary bed and Mrs. Duffy used to sleep with her. I find that next day both plaintiffs felt some symptoms as in a head cold, sore throat, burning sensation, sore eyes and runny nose and chestiness. I accept that these symptoms continued and worsened over time and Charlie Jo had similar complaints. I accept that during the weekend Mr. Duffy contacted Mr. McGee complaining that the smell was still there and mentioned that the family had bad “doses” but Mr. Duffy reassured them. The family continued to have symptoms and were not improving and treated themselves with Uniflu or cold tablets. It was not until May that there is the first note of complaints by Mr. Duffy to his GP who was a friend of his. Mr. Duffy was anxious in relation to what was happening and its relation to the indexed events but was reassured by his GP that normally if it was anything to do with the indexed event that the symptoms should pass.

57. The first record of Mrs. Duffy reporting symptoms to her GP, who was different from Mr. Duffy’s, was in March. As Charlie Jo’s symptoms were worsening Mrs. Duffy was recommended by her GP to take Charlie Jo to Letterkenny hospital at which stage she was kept in for two nights and the specialist in Letterkenny the doctors inquired about irritants and were advised that the family’s symptoms commenced immediately after the indexed events, requested details from a data sheet in relation to the product that was used and Mr. Duffy contacted Mr. McGee in some considerable distress. I accept as Mr. McGee said that Mr. Duffy’s words were to the effect that his product had “poisoned” their child. Clearly Mr. Duffy was and indeed remains highly distressed. In any event as a result of the conversation Mr. McGee forwarded a data sheet to the Duffys but apparently got that data sheet from the internet. He did not get the data sheet from his own records.

58. This is important as the data sheet supplied to the Duffys indicates that nobody should be in the house for 24 hours after the spraying. It was only during the course of the trial that it became clear that the actual product inserted by Mr. McGee had a two hour (with appropriate ventilation) rather than the 24-hour period before a safe return to the house could be recommended.

59. Having heard all the evidence, I accept Mr. McGee’s evidence and find that this data sheet suppled to the plaintiffs refers to an earlier product and that some time prior to the installation of the Icynene in the Duffy’s property a modification had been invented by the manufacturer, known as “light density low VOC Icynene” with the same Icynite in component A but a different product in component B which resulted in the American and indeed European authorities certifying that with the appropriate ventilation the period of absence from the dwelling house could be reduced from 24 to two hours.

60. The confusion as to what product was actually utilised was such that the second named defendant’s consulting engineer apparently produced reports referring to the product with the 24 hour rather than the two hour waiting period.

61. The plaintiffs do not accept that the defendants have established that it was the new “light density low VOC Icynene” that was inserted but I accept the evidence from Mr. McGee and from the second named defendant that at the time of this installation that all Icynene in Ireland was the low density one.

62. From time to time before this case came to trial the defendants continued to furnish various data sheets which still referred to their original product and these data sheets advised that the property should be vacated for 24 hours after spraying. This caused confusion and annoyance which was added to by the second named defendant’s engineer whose reports identifying the 24-hour absence requirement were referred to though that expert was never called to give evidence.

63. It is clear from all of the data sheets for Icynene products that the chemicals in both the A and B side and in the final “cured” product are potentially hazardous and that in order to mitigate against risk the manufacturer and the regulatory authorities in the United States of America, Europe and in Ireland require that during spraying full PPE including a respirator are required that no one is to come within 50 feet of the spray foam without the specified PPE and respirator during the spraying that everyone other than the certified sprayers are to leave the site for the duration of the spray and for 24 hours after the spraying is completed unless it is the low VOC product (and the requisite 40 air changes per hour is achieved), when the absence must be for the duration of the spray and for two hours after the spraying. Also there must be adequate active negative pressure ventilation during the spraying and for 24 hours after the spraying is completed unless it is the low VOC product and the requisite 40 changes per hour is achieved for the duration of the spray and two hours thereafter. There are “no exceptions” to this rule.

64. Accordingly, I find with the low VOC product, which is the product in question there may be access to the site two hours after spraying if, and only if, the requisite 40 changes per hour has been achieved during the spray and for two hours thereafter.

65. I find that all the data sheets for the product graphically highlighted the nature of the potential damage to individuals’ lungs and larynxes unless the required precautions were taken.

66. Clearly the change in Icynene which allowed for entry after two hours due to or alterations to the B side was a great commercial benefit to the manufacturers and distributors of Icynene.

67. I find that the plaintiffs abandoned their house soon after receiving the data sheets from the defendants and remained outside notwithstanding the air quality report undertaken in August which found that there were no chemicals present in the house at that time. They have not been able to return.

68. I further find that the first named defendant was fully trained by the manufacturers and distributors of the product in the safety requirements for the product.

Liability

69. I find that the first named defendant was clearly negligent in a number of matters.

70. I accept that Mr. McGee was an installer with great experience who clearly believed in his product and in the general safety of the product. However, I find that this general belief seems to have resulted in an extremely lax approach to the necessary safeguards. The product itself is I find essentially safe if properly applied with the proper safeguards.

71. However, I find that the first named defendant was negligent in that:

i. He failed to advise the Duffys that they were required to be out of the house during the spraying and for at least two hours thereafter.

ii. He failed to communicate with the plaintiffs as to the potential risks and hazards involved in the product if the safeguards were not adhered to.

iii. He failed to cordon off and secure the property to warn persons that they should not enter during the spraying or for two hours thereafter.

iv. He failed to, on his own admission, measure the extent and outline of the property to be sprayed in order to calculate the 40 air changes per hour required during the spraying and for two hours thereafter.

v. He failed to supply to the plaintiffs the information which the first named defendant’s safety statement required to be furnished to customers which would have alerted the plaintiff to potential dangers.

vi. He failed to comply with the requirements of his own generic risk safety statement and risk assessment.

vii. The first named defendant was further negligent in that he clearly failed to communicate the requisite safety data to his workers in that the operative stated that he always applied a two-hour absence from dwellings rule even before the new product came on the market and that he never heard of a requirement to vacate for 24 hours.

viii. Furthermore, the first named defendant clearly failed to communicate the obligation to have all sites vacated for two hours as he allowed Mr. D. and his workmen to return to the sun room to complete their work immediately the spraying had been finished with no extractor working in the sun room. Fortunately, neither Mr. D. or his workmen were injured.

ix. The first named defendant was in breach of s. 12 of the Safety and Health and Welfare at Work Act, 2005 and indeed the Safety, Health and Welfare at Work (Chemical Agent) Regulations, 2001 of which Mr. McGee was entirely ignorant.

x. Most importantly I find that the first named defendant was negligent in relation to the air extraction and ventilation of the property.

(a) Mr. McGee though aware that roof contained a number of isolated areas that would have to be separately accessed by separate entrance holes made no calculation as to the air extraction rates required to meet the requisite changes necessary to reduce the absence from the house from 24 to two hours.

(b) The first named defendant removed the air ventilator from the sun room immediately after they had finished working on the spray there and there was no extractor present therein for the requisite two-hour period let alone an air extractor that would provide the necessary ventilation and further allowed Mr. D. and his workmen into the sun room when same should have been clear for at least two hours while it was being properly ventilated.

(c) The safety data for the revised product make it clear that it is not safe to allow anyone into the building after two hours unless the appropriate air ventilation rates have been achieved. The first named defendant made no calculation to ensure that this was done. The first named defendant had no separate ventilators or air extractors working for the separate areas in the roof space, which is a necessary requirement given the engineering evidence, merely allowing the extractor to be in each roof area while the spraying was being undertaken and after the spraying transferring the extractor to the landing area where it worked for approximately two hours.

(d) The defendants have not established accordingly that the property was ventilated adequately in accordance with their requirements before they allowed the Duffy family back into the property. I find that the property was not adequately ventilated to 40 air extractions per hour as required, as at the very least the separate areas in the roof were not properly ventilated in accordance with the requirements as stipulated by the plaintiff’s engineer.

(e) In circumstances where they knew or ought to have known that the bedroom in which Mrs. Duffy and Charlie Jo was to sleep could not have its window opened they allowed that room and the other areas to remain with open holes until the next day with the Duffys in the property.

(f) The defendants were in breach of S.I. 619/2001 Safety Health and Welfare at Work (Chemical Agents) Regulations 2001, at Regulation 4 and Regulation 5.

xi. They allowed Mrs. Duffy and Charlie Jo to be and remain in the property while they were spraying in contravention of all safety requirements.

xii. They allowed Mrs. Duffy to sleep in the bedroom without any natural ventilation with Charlie Jo.

I do not find that these breaches are in any way irrelevant to the events or can be excused by Mr. McGee’s claim that he wasn’t good on paperwork as there is clear obligations on Mr. McGee to properly advise the Duffys as to the risks in relation to product and also as to what they must do in order to ensure their own safety.

72. The first named defendant has alleged contributory negligence as against the plaintiffs for their failure to vacate the house while the spraying was in place but as I have found that they were not advised adequately or at all by the first named defendant that they should be out of the house and were allowed to remain in the house this allegation of contributory negligence cannot stand.

Causation

73. The plaintiffs’ case is straightforward. The morning after the foam was sprayed in their house all three family members had respiratory symptoms which did not resolve and have continued.

74. Each of the plaintiffs have been diagnosed by Professor B as having sustained severe pan-airway inflammation and Reactive Airway Dysfunction Syndrome (RADS). Each plaintiff presents with the most severe version of RADS of very inflamed larynxes. The injury was caused by something with huge irritant toxic properties consistent with the known adverse effects of the chemical compounds forming the constituent elements of the spray foam as listed by the manufacturer in the data sheets. Professor B had never seen injuries of the nature caused by fibreglass or dust which are of a chemical type of injury and not a reactive injury. Professor B performed two bronchoscopies on each of the plaintiffs something that he had never done on any of his patients before to confirm that the film which shows the damaged larynx has continued and worsened over time.

75. In consequence of this the plaintiffs and each of them have become highly sensitised to any number of day to day odours which are irritants and have resulted in inability in particular of Mr. Duffy to work. They left their house and put it up for sale, moved into a relative’s property but as this was unsuitable they are now living in a mobile home, have suffered sleep deprivation and areas of irritation on their skin, significant depression on the part of Mr. Duffy and Mrs. Duffy all of which Professor B links to the exposure to either A or B parts in the foam or both of them, most likely Isocyanate (the A part) and further that the injuries are not likely to be referable to any other proposed possible irritant.

76. The defendants rely principally upon the evidence of Dr. T. a toxicologist who came to the defendant’s case reasonably late in the day and whose testimony influenced to some extent the evidence of the defendant’s medical expert Professor H.

77. Dr. T. gave trenchant evidence which concentrated upon the possible exposure to Isocyanate (Part A) rather than possible exposure to the chemicals in Part B which were dealt with only relatively shortly.

78. Dr. T. said that the chemical factors assure that no escaped Isocyanate can remain in the air after spraying as they are heavier than air and settle to the floor when sprayed. He claimed that Isocyanates so reactive that any particles will react with and are bound to air moisture, dust particles, other chemicals in the air or with materials on the floor and that the vapour pressure for Isocyanates (i.e. the evaporation rates) are so low that they cannot evaporate into the air after they have settled. Dr. T. said that the risk of exposure due to Isocyanate after spraying is very limited for a short period of time may be only a matter of “seconds” and that it will not hang around in the air. This risk he said is usually confined to the sprayers and that as neither of the plaintiffs were present in the spraying area at the time or before more than 30 minutes had elapsed after spraying had ceased that therefore the health effects alleged by the plaintiff “could not have been caused by Isocyanates because they were not exposed to this chemical in the spray area in the home during or within less than 30 minutes after the spraying had ceased”.

79. Dr. T. relied upon two studies carried out on a property by Woods et al the first of which indicated no presence of Isocyanates in the air 30 minutes after spraying and the other within an hour after spraying. Whereas both these studies were in properties with ventilation and air extraction in accordance with the manufacturer’s requirements, Dr. T. was not of the view that the ventilation was a real issue.

80. Dr. T. also relied upon a study which he was informed was undertaken by the first named and second named defendant on two properties.

81. Whereas the defendant is not required to prove anything Dr. T. was insistent that the likely cause of the plaintiffs’ injuries was exposure to the fibreglass/plasterboard which had been taken down in the sun room and the plasterboard put back up by Mr. D. and the fibreglass removed to the garage.

82. Dr. T. regarded the fact that he felt the plaintiffs did not advise immediately of this other potential source of irritation as being an attempt by the plaintiffs at “deception”.

83. The plaintiff has been highly critical of Dr. T’s evidence and his status as an independent expert and the first named defendant has been critical of Professor B’s independence or more particularly upon his reliance on the plaintiff’s descriptions.

84. I regret that I have come to the conclusion that Dr T was not acting as an independent witness in accordance with the obligation of experts in these courts. I have come to the conclusion that not alone was he advocate but that he was a very partisan advocate who sought to denigrate the character of the plaintiffs.

85. The two studies of Woods et al upon which he relied, relate to circumstances in which the appropriate ventilation has been given to the product. The need for air extraction at the prescribed rate during installation and for two hours thereafter is a specific non-negotiable requirement of the manufacturers supported in America by the EPA which states:

“vapours in aerosols can migrate through the building if the area is not isolated and properly ventilated.

After application vapours may linger in a building until properly ventilated and thoroughly cleaned.”

The EPA further states:

“Cutting or trimming the foam before it is truthfully cured may cause exposure to unreacted SPF chemicals”

86. The curing process is when Parts A and B merge and the soft foam hardens and the gases become inert.

87. The manufacturer’s data sheets all indicate by means of graphic drawings potential damage to internal organs including the larynx and throat due to exposure and the manufacturers in their technical bulletins state inter alia “if the entire building is not vacated consider the potential for SPF chemicals to migrate to other floors containment and ventilation methods may help to prevent migration. Discuss with property management or other contractors which floors will be occupied.” The manufacturer’s data sheets originally prescribed a blanket 24-hour vacating of the property after spraying and then with the low product modified this to two hours but indicated that this is subject to the proper and correct ventilation being undertaken.

88. Apparently the second named defendant in conjunction with the first named defendant after this litigation undertook some study on Mr. McGee’s property which they first insulated and which they say indicated that with or without ventilation there was no presence of Isocyanate in the air.

89. I do not accept this exercise can in any way be described as scientific. I do not accept the validity of lay witnesses giving reports from one study. No evidence from an expert was given to suggest how the study was conducted or how scientific it was. In any event accepting the fact that in Mr. McGee’s property there were no adverse chemicals present on one specific occasion does not invalidate the manufacturer’s stipulations, the regulatory authority’s requirements in the United States of America, in Europe and in Ireland all of whom highlight the possible dangers and consequences if the required safety measures are not properly undertaken.

90. The EPA in its paper on the “potential chemical exposure from spray polyurethane foam” states:

“Research data indicate that inhalation and exposures during SPF insulation will typically exceed Occupational Safety Health Administration (OSHA) occupational exposure limits (OELS) and require skin, eye and respiratory protection.

Vapors and aerosols can migrate through the building if the area is not isolated and properly ventilated.

After application, vapors may linger in a building until properly ventilated and thoroughly cleaned.

…

Cutting or trimming the foam as it hardens (tack-free phase) may generate dust that may contain unreacted isocyanates and other chemicals.

After application, dust may linger in a building until properly ventilated and thoroughly cleaned.”

91. I accept these observations and the manufacturers requirement as being indicative of the fact that Dr. T’s opinion that there is a no risk and can be no risk from these chemicals a matter of a few minutes after application is incorrect. I prefer the specifications and requirements and opinions of the manufacturers and of the EPA to the opinions of Dr. T.

92. In relation to the two studies by Woods et al both of these were conducted after the ventilation and air extraction required by the manufacturers were put in place which is of course precisely what did not occur in the case of the plaintiffs. Whereas it is correct that Professor B is of the view that the exposure that caused the problem was to component A (Isocyanate) rather than component B, it was always the plaintiff’s case that the injuries were caused by exposure to both components and the united foam. And it does not matter much to the plaintiffs’ case as to which of the compounds are caused the plaintiffs’ injuries or whether they were caused by a combination of compound A and B.

93. Whereas component B carries the precisely the same warnings in relation to its toxicity as component A the evidence seems to suggest that it is in fact less potentially harmful but its potential effects, as identified by the manufacturers in the data sheets, are to the same area of the body as component A. Dr. T. however said when asked by the court in relation to component B that the chemicals in side B are all in very reduced concentrations “ so the individual chemicals involved in side B although a number of them are irritants the concentration for exposure is significantly reduced” and that the intense injuries sustained by the plaintiffs could not in his opinion have come from side B.

94. It is of relevance contrary to Dr. T’s view that side B cannot be responsible for what occurred that it was apparently a modification of side B chemicals, rather than any modification to side A, that resulted in the reduction from 24 to two hours’ absence from the property in the more recent product. Accordingly, side B must be viewed as a significant potential hazard.

95. Throughout his evidence I came to the conclusion that Dr. T. was proceeding as an advocate on the basis of a paper he had delivered to the industry on how “To avoid a law suit”.

96. I am fully supportive of the idea that a judge should decide as little as is necessary and conscious as I am that I have already decided that Dr. T’s evidence cannot be accepted as being in any way the unbiased evidence of an expert, I feel obliged to go further and I have come to the opinion that m The fact that Dr. T. in his evidence ignored or downplayed the central importance of adequate ventilation in the Woods et al studies and also in the manufacturer’s data sheets renders his impartiality as being highly suspect and ultimately is sufficient to ignore his findings. An expert may descend into the realm of the advocate due to excess of enthusiasm for the cause that he expounds. I have experienced this on only a very few occasions in my time as a judge. I am afraid that I must record that Dr. T’s partisanship went much further.

97. For example, at Table 7 of his report Dr. T. lists as facts that the Duffys were ordered to stay out of the house until 6 pm and accepted as a fact what undoubtedly Mr. McGee told him that Mr. Duffy said that he did not finish work until about 6 and that Mrs. Duffy was going to spend the day with her mother and specifically said that she left the house at 9.30 am.

98. Further at Table 8 of his report Dr. T. heads the Table with the words “ Plaintiff misrepresentations of the SPF installation process.” Dr. T. lists in one column the plaintiff’s complaints as quoted by Dr. M. the defendant’s psychiatrist on the second column he heads it “ Independent expert observations” which is a list of matters taken from Mr. McGee’s statements and clearly are not independent and on the third column he lists the “ standard/actual process”.

99. Accordingly, Dr. T. has listed as being “independent” what the defendant’s case is and has taken the plaintiff’s case not as his evidence but rather what Dr. M. recounted the plaintiff saying to him.

100. At Table 9 Dr. T. lists what he describes as “ Duffy contradictions for SPF installation timeline – 18th Feb. 2016” and lists in one column Mrs. Duffy’s timeline and in another Mr. Duffy’s timeline. Dr. T. takes all of these statements from the defendant’s respiratory report from Professor H. suggesting that there is a significant contradiction between for example Mrs. Duffy saying at 8 pm four workmen arrived and Mr. Duffy saying a crew of two operators arrived to install the installation. In fact, I find that there is no substantive contradiction between how they reported the instant to Professor H. Professor H. was not recording complaints as a private investigator but to ascertain the cause and extent of what the plaintiffs have suffered.

101. Then at Table 10 of his report Dr. T. heads it “ Professor B’s false exposure assumptions”. He lists Professor’s B’s statement on the one hand? and in the other the “alternative perspective” at best Table 10 is argumentative.

102. Further as previously stated Dr. T. referred to the fact that he believed Mr. and Mrs. Duffy had not referred to the installation work by Mr. D. as being “deception”.

103. The fact that Dr. T. is prepared to attempt to blacken the plaintiffs’ testimony (unfairly) of itself entirely undermines his credibility as an independent witness. It must be forcibly pointed out that it is no role for an expert to attempt to act as a barrister in the case suggesting inaccuracies or to describe matters as deceptions.

104. I find there was no deception on the part of the plaintiffs in relation to the work carried out by Mr. D. The first named defendant and his workers were fully aware of this work and in fact on the initial occasion in January when Mr. McGee was looking over the property he told Mr. Duffy that he would have to have another contractor to remove the plasterboard and fibreglass from the sun room. Mr. McGee was at all stages aware of this fact.

105. At no stage did the plaintiffs in these proceedings disguise from anybody that Mr. D. and his workmen had done what they did as it was well known. Dr. T’s complaint seems to be that once he became aware of the use of Icyanate Professor B. did not refer to the fibreglass plasterboard as possible sources of the plaintiff’s injuries. It is entirely true that Professor B. did not refer to these matters in his reports because as he stated in his evidence the fibreglass was in effect a non-runner.

106. The fibreglass was removed from the sun room by Mr. D. and put into the garage. There was a reasonably effective plastic barrier between the sun room and the rest of the house and the type of injuries and irritation caused by fibreglass is of a mechanical nature mainly caused by physical contact and I accept the evidence of Professor B. and indeed agreed by Professor H. on behalf of the defendant that the type of injuries suffered by the plaintiffs were chemically caused.

107. In his evidence Professor B. discounted the alternative theory colourfully saying that in a two horse race the fibreglass theory was “not at the races”. I accept that description as being correct.

108. I do not accept that the fibreglass or the panels could have been the cause of the irritation to the plaintiffs as the medical evidence from both Professor B. and Professor H. on behalf of the defendants indicates that the type of damage or irritation likely to be caused by fibreglass is of a mechanical nature (e.g. if you rub up against it) and that the injuries sustained by the plaintiff was of a significant chemical exposure. I also find that the sun room was reasonably cut off from the rest of the house and it is highly unlikely in the extreme that any fibreglass escaped from the sun room to the rest of the house and I do not find this to be credible.

109. It is not of course the obligation of the defendant to establish any alternative cause for the plaintiffs’ injuries. However, I have come to the conclusion beyond any doubt whatsoever that each of the plaintiffs sustained their life altering serious injuries as a result of exposure to chemicals, either or both component A or B and as a matter of probability from exposure to chemicals in component A.

110. I have come to this conclusion because of the failure of the first named defendant to properly ventilate the property in accordance with the requirements of safety.

111. The second named plaintiff was present in the property during the spraying to the knowledge of the first named defendant.

112. The chemicals that cause the damage were as a matter of probability not the chemicals that were sprayed in the sun room as there was a door and a plastic sheeting likely to prevent contamination from that source but rather the probable cause was the foam that had been injected into the roof.

113. I do not find that the first named defendant, his servants or agents was in any way negligent in the manner in which they sprayed the foam but rather in their failure to properly ventilate and as a result Mrs. Duffy was exposed throughout the day and Mr. Duffy was exposed when he returned to the property at 5 pm and throughout the night. The fact of the smell (even though its precise nature could not be identified) is likely to be indicative of the fact that chemicals had indeed escaped and were in the property due to the lack of proper ventilation. Mrs. Duffy together with Charlie Jo then slept throughout the night in the room underneath an opening and in respect of which the window could not be opened and there was no natural ventilation or indeed the possibility of natural ventilation.

114. Accordingly, I find that the plaintiffs’ injuries were caused beyond a reasonable doubt by the exposure to the product as sprayed by the defendants. And on the balance of probabilities I find that due to the nature and extent of the plaintiff’s injuries it was due to exposure to Isocyanate.

115. The defendants submit that the evidence of Professor B. in relation to causation was tainted by “ misleading information he was told by the plaintiffs” and that he was given the impression that the plaintiffs had been exposed to Isocyanates “ on an industrial scale” and they referred to his report in relation to Mr. Duffy to the effect that he has a “ history of significant exposures as outlined not only for the few hours in the day of the installation of these materials on the 18/02/16 but also during the following approximately eight weeks when he continued to live in the house and during which period he tells me that the engineers he has commissioned suggest that further exposure was likely”.

116. Such criticism is in my view misplaced as Professor B. in these extracts was dealing with the seriousness of the plaintiffs’ injuries in this extract. His opinion in relation to causation was that this chemical can cause this type of injuries and that person’s reaction varies as to their vulnerability but that the injuries sustained by the plaintiffs and each of them was highly significant and were likely to have been caused by exposure to the chemicals in the spray.

117. The defendants also rely upon the fact that Professor B. stated in his report that each plaintiff attended their GP shortly after the incident which is not the case. Professor B’s evidence however was that as the symptoms had come on in the day after the exposure or the night of it and that these symptoms had continued that this is the reason he came to his conclusion and as Professor B. stated “ once I knew he was exposed for more than minutes it was sufficient to explain his clinical presentation…”.

118. I do not accept therefore that Professor B’s theories were based upon any substantial incorrect assumptions and indeed when under cross examination and alternative timelines were put to him Professor B. maintained his opinion.

119. I do not understand the submission on behalf of the defendants that because each of the plaintiffs did not have the exact same exposure to Isocyanate mean that Isocyanate could not have been the cause. That submission is not supported by the facts of this case. Both plaintiffs were exposed to the product and both have remarkably similar objectively found symptoms which as I have stated has been caused by this exposure which is the result of the negligence of the first named defendant.

Exaggerated/misleading claim, Section 26 of the Civil Liability and Courts Act, 2004

120. It was clear from the defence of this case and not just the evidence of Dr. T. but throughout that the plaintiffs were being accused of making an exaggerated or misleading claim and the defendants in their submissions, rely upon the provisions of s. 26 of the Civil Liability and Courts Act, 2004 to dismiss the proceedings. Section 26 provides:

“(1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that—

(a) is false or misleading, in any material respect, and

(b) he or she knows to be false or misleading,

the court shall dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.

…

(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court….”

121. The defendant submits that the plaintiffs have “completely exaggerated the consequence of their injuries”. They complain about the level of special damages sought including the level of the loss of earnings, personal hygiene products and home care for Mr. Duffy. The defendants complain as well about the loss of earnings claim for Mrs. Duffy (which the defendants take exception to as she was not working at the time and they submit unlikely to work again) as well as damages for hygiene products and domestic assistance and other matters and it is submitted by the defendants that this level of damages are completely unwarranted and demonstrate the lack of bona fides in relation to the claim.

122. The defendant further submits that the plaintiffs’ credibility is undermined by alleged inconsistencies in their evidence both in court and to various experts which has had the effect of “plaintiffs adducing misleading evidence on their behalf”.

123. The defendant’s submissions list at length the alleged inconsistencies and submit that the survey that they have taken and given evidence of by a private investigator demonstrate that the plaintiffs are fully capable of going about their daily lives and further suggest that Mr. Duffy’s presentation while attending court without coughing contrasted with his evidence and his submissions to the experts. The defendant submits that the plaintiff suggested that they had gone to the GPs earlier than they actually had and that Mr. Duffy’s complaint of suicidal tendencies contrasted with an absence of him seeking help in this regard. The defendants submit that the plaintiff failed to disclose the air quality report that they had undertaken on their property or include it in discovery. They submit that the plaintiffs had told their experts that there was no extraction machine or ventilator in the property on the day of the installation that the particulars suggested that Mrs. Duffy was still in employment at the time of the accident and had advised one of the experts that she had given up work because of the indexed event and that Mr. Duffy had told Professor B. that he had an engineering report which claimed that there were Isocyanates in the house for a period of eight weeks after spraying and no such report existed. That he gave evidence that he had borrowed money from Mr. K. to finance his car but that Mr. K. denied this. That while Mr. Duffy claimed he could not stand fumes he was able to “operate his gas bbq” that the claim that the plaintiffs made that they would be unable to occupy their house as it was not suitable for occupation due to contamination was inconsistent with the air quality report. The defendants submit that the plaintiffs obtained a valuation report from their auctioneer Mr. J.G. saying that the house had a nil value if supported by a report confirming contamination. Further the defendants contend that the plaintiffs had a claim for rebuilding a new home being the amount of €250,000 and that they claim for their clothes that were in the house although there was “nothing wrong with them”. The defendants claim that these items are exaggerated. That Mrs. Duffy claimed that the mobile home cost more than it did though it accepted that the difference is not very significant (“nearly €20,000” when it only cost €19,300). This the defendant contends demonstrated the plaintiff’s desire “to exaggerate at every possible turn”. Further the defendant contends that the fact that a separate set of proceedings was issued seeking damages for the diminution in the value of the property although this was also maintained in these proceedings represents a clear process in “attempting to recover on the double” that they made a claim for diminution in the value of their home on the basis of a market value of €380,000 when the actual guide price was only €265,000 when the property was being sold and that the sale was actually for €235,000 on the open market and finally that the plaintiffs called evidence in relation to personal cleaning products supported by Ms. S.

124. Having considered all of these submissions numbered by the defendants (a) to (u) I find that there is absolutely no basis for invoking the provisions of s. 26 of the Civil Liability and Courts Act, 2004 and indeed that none of the plaintiff’s claims can be said to be exaggerated if properly understood.

125. Whether any item of special damages are reasonable is a matter to be considered by the court under the heading of damages. The plaintiff in an action is always going to furnish particulars of what is the height of possible claims. The fact that a court may or may not allow all or any of the matters is not suggestive that these claims are exaggerated. A plaintiff’s legal advisors would surely be guilty of negligence if they were to put forward a lower basis of a claim than might be found by a court. Whether the sum claimed by Mr. Duffy for loss of earnings and hygiene products and homecare is or is not reasonable does not mean that even if it is not found to be reasonable that he has been guilty of wilfully attempting to mislead the court. Whereas Mrs. Duffy is claiming a specific sum for loss of earnings with actuarial evidence her claim for loss is also made out on the basis of loss of opportunity.

126. I do not accept that these claims indicate any lack of bona fides in respect of the claim in general and certainly no such matters as would invoke the provisions of s. 26.

127. To deal with the defendant’s submissions at para. 74 (a) to (u) I say that the surveillance pictures and the evidence given by the private detective on behalf of the defendants of one day’s surveillance show the plaintiffs moving around outside their mobile home, Mr. Duffy changing a light bulb outside the cottage and the Duffys travelling to a local shop to buy some provisions and then Charlie Jo moving happily around the outside of the house and indeed possibly dancing. Nothing in this surveillance is indicative of a lifestyle that the plaintiffs had not volunteered. It should be pointed out that the surveillance in respect of which evidence was given was clearly by no means the first time the private investigator had followed the plaintiffs as they had purchased a drone to photograph the private investigator due to his previous visits and the fact that they felt intimidated by him.

128. I agree that Mr. Duffy while in court and not giving evidence was not subjected to prolonged coughing fits though he did cough on a number of occasions but I do not think that there is anything in his presentation which I observed that in any way counters the evidence that he gave and whereas his coughing was described as “habitual” to some extent by some of the experts none of them suggested that the plaintiff was in any way exaggerating or manufacturing his cough and someone who is subject to prolonged coughing due to the nature of his larynx is likely to develop into a habitual cough without any attempt to deceive. Whether the coughing was habitual or caused by the state of his larynx or due to a Pavlovian reaction or a psychological reaction is immaterial in relation to the question of damages and also in relation to the question of the application under Section 26.

129. It is correct that the plaintiffs both advised that they had gone to their GPs relatively soon after the indexed event and the GP’s notes indicated that it was not until May in the case of Mr. Duffy and March in the case of Mrs. Duffy that they attended their GPs and made reference to the indexed event. Given the fact that neither GP gave evidence I must accept that these were indeed the first times that reference was made I do not find that at this remove the fact that they went to their GPs later than they advised other experts is indicative of any attempt to deceive. Both plaintiffs fully agreed in evidence with the records. The plaintiffs went to their GPs when their own attempts to self-medicate did not work.

130. Whereas the evidence of a GP is frequently of great importance in a case and whereas I find that the plaintiffs are fixed with the history as described in the GP’s notes, I do not believe that the failure to call the plaintiff’s GP is in any way sinister as the main evidence in the case in relation to both of the plaintiffs’ injuries was that given by Professor B. who treated the plaintiff and who is the leading expert in Ireland in the field and the plaintiffs were medically referred to Professor B. because of his expertise.

131. Mr. Duffy’s suicidal ideation is supported by his psychiatrist. The fact that he did not seek help and only recently obtained prescriptions for antidepressants may well be evidence as to the nature or extent of the suicidal ideation when it comes to damages or indeed to Mr. Duffy’s embarrassment at revealing it but is not evidence of an attempt to mislead.

132. The plaintiffs did obtain an air quality report on the property in August 2016 which revealed that at that stage there were no chemicals present in the air and this air quality report ought to have been included in the discovery. The plaintiffs however fully accepted that the air quality report indicated that the house was clear but said that they could not live in the property either from psychological or, as Professor B. suggested Pavlovian reasons. Indeed, the air quality report was necessary in order to put the property on the market and avoid it having a nil value.

133. The plaintiffs did tell their experts that there was no ventilation machine on the property on the day of the installation because they did not see any air extractors. Neither of course did Mr. D. see any air extractor. I have accepted the evidence of Mr. McGee that he used one ventilator. The defendant’s reference under this heading must also fail. If a party has an honest belief in a certain series of facts, it cannot be an attempt to deceive within the terms of s. 26.

134. In relation to Mrs. Duffy’s evidence and particulars in relation to her inability to work she at all stages volunteered that at the time of the instant she was off work due to her post-natal depression and accepted that she had been certified as being unable to work into the future and I do not hold that her representation that she had to give up work because of the injuries was an attempt to deceive or to adduce misleading evidence. The plaintiff fully believes that had it not been for the indexed events that she would have attempted to go back to work and accordingly she believes that her present absence from work is due to the indexed event. It must be recalled at all stages the plaintiffs were of the view, supported by the defendant’s documentation, that they had been injured by a product in respect of which they ought to have been out of the house for 24 hours after spraying which incorrect information clearly upset and probably enraged both plaintiffs and they cannot be expected to have approached all matters in a detached and calm manner. Having made that point however I have no hesitation saying that there was no attempt to mislead in accordance with the provisions of s. 26 by Mrs. Duffy in this regard.

135. In relation to Mr. Duffy’s belief that there would be engineering evidence to support the fact that there were Isocyanates in the house for a period of eight weeks that was clearly Mr. Duffy’s belief at the time and it did not as I have previously decided have impact on Professor B’s final conclusion which was based upon the fact that once there was some exposure that the injuries were consistent with this.

136. Mr. Duffy’s belief that he borrowed money from Mr. K., his previous employer, to finance his car was denied by Mr. K. however this is not an attempt by Mr. Duffy to adduce misleading evidence. I accept that this was his belief at the time he gave evidence. Mr. Duffy was of course grateful to Mr. K. for the fact that after the indexed event Mr. K. took Mr. Duffy back in employment and attempted to offer him lighter work to encourage him to return to the workplace but this was unsuccessful.

137. The suggestion that because Mr. Duffy was able to operate his gas bbq that his claims that he cannot stand fumes or is sensitive to smells is a misleading claim would be laughable were it not advanced apparently seriously in the submissions in this case. Mr. Duffy said that he can indeed light his bbq but that he has to stand away from it upwind to avoid adverse reaction.

138. On the 16th November, 2017 the plaintiffs’ then solicitor wrote stating that the plaintiffs had been advised by their GP that the house would “never be suitable for occupation by them due to the contamination of their house”. This letter was explained by the fact that the plaintiffs’ then solicitor was under pressure from the plaintiffs due to the lack of progress in the case and the plaintiffs had threatened to take their file elsewhere (as ultimately they did) and the letter was written at a time when the plaintiffs for good or other reason had decided that they had to leave their house permanently because of what had occurred. This does not amount to anything that would be captured by the provisions of s. 26.

139. The valuation report obtained from J.G. indicating that the house had a nil value if supported by a report confirming contamination was undoubtedly correct. It was in order to ascertain the actual condition of the house that the air quality valuation report was obtained and Mr. J.G. put the house on the market with an asking price of €265,000.

140. Likewise, the fact that the plaintiffs brought a claim for rebuilding a new home or for replacing their old clothes which they abandoned or the claim for diminution in value of their home or cost of personal cleaning products or extra care all are matters which will be dealt with under the items of special damage to be discussed below and are subject to the same provisos in relation to such claims as I indicated above.

141. I must also separately indicate that the submission at para. 74 (r) of the defendant’s submissions that the claim “Mrs. Duffy claimed that her mobile home cost more than it did. Although the amount at play is not significant it further demonstrates the plaintiff’s desire to exaggerate at every possible turn” is entirely without merit. Mrs. Duffy referred to the cost of her mobile home as “nearly €20,000” when in fact it cost €19,300. Mrs. Duffy’s evidence was entirely accurate and to include this as part of a claim under s. 26 is to devalue the entirety of the submissions on this point.

142. The plaintiffs did indeed for some reason issue separate proceedings claiming damages in relation to the diminution of value of their property although that these claims were also maintained in these cases. That separate claim has been struck out with an order for costs against the plaintiff and the explanation for it which was not entirely satisfactory was that it was thought that as each of the plaintiffs had separate claims and as the house was jointly owned that there should be one claim in respect of the house. Clearly the plaintiffs’ legal advisors saw the folly in having that separate claim and consequences have resulted therefrom. Issuing such a claim may well have been ill advised however it is not an attempt to mislead or deceive or make any exaggerated claim. There was clearly absolutely no set of circumstances in which the plaintiffs could recover “on the double”. This is also the case in relation to any items of special damages which are duplicated in the two sets of proceedings before me.

143. I have listed each of the allegations in relation to s. 26 and dealt with them as they have been set out in formal written submissions to the court and lest a generic rejection of same would be criticised. If and insofar as I have not specifically listed all of the particular items, the defendants are complaining about as being “exaggerated” it is because they can all be dealt with under the heading of special damages and none of them are exaggerations and certainly none of them come within the terms of s. 26.

144. False or misleading or exaggerated claims must be discouraged and s. 26 is one of the principle ways to do so. However, s. 26 ought not to be invoked without a firm basis for doing so. To invoke s. 26 is in effect to make an allegation of fraud against a plaintiff. It should not be used merely to cause distress and there are potential consequences to a defendant for improperly invoking this section. The defendant’s claim to dismiss the proceedings under s. 26 must fail.

Damages

145. Counsel on behalf of the plaintiff indicated that notwithstanding the attitude of the defendant throughout the trial and in particular notwithstanding the pleas under s. 26 of The Civil Liability and Courts Act, 2004 they do not seek aggravated or exemplary damages and accordingly the only damages are compensatory. I shall deal with each of the plaintiffs in turn.

(a) Patrick Duffy

General Damages

146. Patrick Duffy is a young man who has suffered an extremely serious injury. As is submitted by the plaintiffs the Book of Quantum is of no assistance. I accept fully the evidence of Professor B. that the plaintiff’s injury is amongst the top 1% of airway damage that he has seen and that he has never performed two bronchoscopies on these patients. There has been no improvement between the bronchoscopies and I accept Professor B’s evidence that the prognosis is for no further improvement.

147. I have seen the photographs of the bronchoscopies produced by Professor B. which contrasts Mr. Duffy’s larynx with that of a normal larynx and the contrast is obvious and stark.

148. Mr. Duffy’s larynx has become highly sensitised to a large number of odours and irritants with resulting implications for his work, social, family and personal life. He is subject to coughing on a regular basis and sleep deprivation. I accept the evidence of the ophthalmologist in relation to Mr. Duffy’s eyes and the evidence of Mr. McH the plastic surgeon in relation to the skin tissue of which I have had the opportunity to view the redness. Mr. Duffy also became significantly depressed and remains so and as is stated by the defendant’s psychiatrist Professor M. his psychiatric illness is tied with his physical prognosis. I fully accept that Mr. Duffy’s depression was such that he researched methods of suicide. He did not put these into practice and did not make reference to his treating doctors at the time.

149. As a result of the plaintiff’s injuries Mr. Duffy was forced to give up work something that he thoroughly enjoyed and clearly on the basis of his employers evidence he was very good at and highly valued.

150. I note that Mr. Duffy’s late father wrote a letter for Mr. Duffy to read at his younger brother’s wedding and he had great difficulty in complying with this. I accept that Mr. Duffy who was a fit young man actively engaged in sports is now limited to moderate walking as an exercise.

151. I accept accordingly that Mr. Duffy is going to go through the rest of his life with a highly sensitised larynx subject to fits of coughing and will have to guard against any exposure to any normal odours which will be a constant reminder of what occurred. Mr. Dufy will not be able to work again for the rest of his life. I note that Mr. Duffy also feels a responsibility for what has occurred as he engaged the defendant.

152. Mr. Duffy personally is an entirely truthful witness who did not exaggerate his complaints. The fact that some of his present level of coughing may be habitual does not affect the nature of his damages as none of the experts made the case that the plaintiff was deliberately exaggerating.

153. The only relevant comment from the defendant’s expert, Professor H. is that he would have expected that the Duffys’ injuries would have improved. They clearly have not improved so that comment is evidence of the serious nature of the injuries. I accept Professor B’s evidence that no improvement is going to occur.

154. It may be that Mr. Duffy because of some early experiences was more susceptible to the exposure than a normal person but in this regard he must be treated as someone having a “egg shelled skull”.

155. As a result of the indexed injury notwithstanding the fact that the air quality control report undertaken for the plaintiff’s house in August 2016 indicated that they were at that stage no chemicals present in the house, Mr. Duffy had already vacated the house with his family to live in a house owned by his brother in law. This in turn proved unsuitable left and he is now living in a mobile home with the intention of building a specially constructed house for his family.

156. The decision to vacate his house and live since then in a mobile home while not caused by any physical presence of chemicals in his own house was not unreasonable and was undertaken because Mr. Duffy and his family were afraid to return. While this item will be dealt with under Mrs. Duffy’s claim for special damages it also forms part of Mr. Duffy’s general damages claim. Whether Mr. Duffy’s reluctance to live in that house which he loved was due to a Pavlovian reaction as suggested by Professor B. or due to psychological reasons is not relevant as I find that his decision is not one that was taken lightly and in the circumstances was reasonable.

157. Accordingly, the plaintiff, a young man, presents himself as being someone with a very serious indeed catastrophic life changing injury near to but not at the upper limits of compensation. It is a permanent injury and being fair and reasonable to all sides I award the sum of €200,000 damages for pain and suffering to date and €200,000 damages for the future.

Special damages

158. The approach in relation to special damages as highlighted by this court in Russell and approved by the Court of Appeal is whether the plaintiff’s claims for any amounts are reasonable. The defendant submits that all of the claims are unreasonable.

159. I will allow the sum of €45 for the PIAB application. A sum for €2,415 is claimed for loss of clothing. This is because Mr. Duffy abandoned his clothes in the house for fear of contamination. I have no doubt that Mr. Duffy would not have abandoned his clothing just on a whim and did so because in effect he could not bear to utilise any clothing that was in his house the entirety of which he believed to be contaminated and accordingly the sum of €2,415 is reasonable.

160. A sum of €69,964 is claimed for loss of earnings to date up to July 2018 and a sum of €497,952 for loss of earnings into the future. These sums are based on actuarial calculations.

161. Given the evidence of the plaintiff’s employer and of his work record I accept the submission on behalf of the plaintiff that any reduction for Reddy v. Bates would not be very significant and I will award the sum of €500,000 for loss of earnings to date and into the future.

162. Mr. Duffy’s claim in the sum of €60,522 in respect of personal hygiene expenses as he requires to utilise special sanitary products, soaps, etc. which are more expensive than the usual type of product. The evidence in relation to this matter calculated by the actuary was not entirely satisfactory but it is inevitable that the plaintiff will incur extra expenses and to allow for some excess in the claim I will award the sum of €40,000, less than €1,000 a year, to include the claim for personal hygiene expenses and household cleaning expenses to date and into the future.

163. In relation to the claim for cost of care it is accepted that while this is claimed for both plaintiffs that it should be divided between the two. In relation to the cost of care and domestic assistance to date and into the future I accept that some extra expenses are going to be incurred as Mr. Duffy will not be able to do the heavy work inside and outside the house and while neither the plaintiff is going to able to work into the future and thus will be available for Charlie Jo, it is also not unreasonable that they will require some respite and whereas the sum of €236,751 is claimed in this heading for Mr. Duffy I find that a sum of €100,000 is fair and reasonable.

164. The plaintiff is going to incur extra expenses for prescriptions and pharmacy as a result of the indexed event and has claimed €102,146 under this heading. The evidence in this regard was not entirely satisfactory but it is reasonable that the plaintiff will for the rest of his life be at an extra expense in this regard and I will award the sum of €50,000 under this heading.

165. The claim for a dual motor riser recliner I do not believe to be reasonable given the evidence from the defendant’s expert which I accept in this regard but the plaintiff is also entitled to a claim for counselling into the future given his psychiatric condition and a sum of €2,660 is claimed and I find that the same is reasonable.

Summary for Mr. Duffy

General damages to date €200,000.

General damages for the future €200,000.

PIAB application fee €45.

Loss of clothing €2,415.

Loss of earnings to date and into the future €500,000.

Personal hygiene expenses and household cleaning expenses €40,000.

Extra domestic assistance €100,000.

Prescriptions €50,000.

Counselling €2,660.

A total of these sums come to €1,095,120 which I hold to be fair and reasonable in respect of Mr. Patrick Duffy.

Anita Duffy

166. Physical injuries sustained by Anita Duffy are mirror images of that suffered by her husband. There is no need to repeat same. The consequences are also similar. I also had the opportunity of viewing her skin complaints as identified by Dr. McH. Mrs. Duffy is also an entirely truthful witness who did not exaggerate and my observations in relation to her husband’s physical injuries and their consequences apply to her as well.

167. In relation to her psychological injuries Mrs. Duffy presented as significantly more distressed than Mr. Duffy but it is clear that Mrs. Duffy had psychological problems prior to the indexed event. It is possible that her failure to complete her Leaving Cert was caused by some psychological difficulties but in any event after the birth of Charlie Jo Mrs. Duffy did suffer post-natal depression.

168. As I have previously stated in this judgment I believe that notwithstanding the post-natal depression which was still a factor at the time of the indexed event Mrs. Duffy was enjoying a good life and in relation to her present problems the psychiatrist Dr. NMCG reported that she cries frequently and profusely, she believes her life has been ruined, her feet swell and she feels hopeless, she has nightmares about her home, gained weight since her respiratory symptoms occurred and doubled in size from eight to sixteen, feels her face is bloated and she weighs more than twelve stone now instead of nine stone. She did have hypothyroidism since her late twenties but believed that this has gone out of control. She had hoped to have more children but has been unable to consider this because of her respiratory problems and I accept Dr. NMCG’s evidence that Mrs. Duffy developed a major depressive disorder of a severe type which is being treated with anti-depressive medication which has not had any therapeutic response and that her prognosis is very poor given her severe respiratory problems. Mrs. Duffy’s fear of contamination was such that she was unable to be present while her father was dying in his house due to a fear of chemical or other irritants and this of course caused her great upset and is indicative of the extent as well of her physical injury.

169. Accordingly, I have come to the conclusion that while indeed Mrs. Duffy did suffer from pre instant psychiatric problems that as her present presentation and ongoing symptoms are now more severe than Mr. Duffys, accordingly I think it is impossible to differentiate between Mr. and Mrs. Duffy’s physical or psychiatric injuries and being fair to both parties I will award the sum of €200,000 damages to date for personal injuries and €200,000 into the future.

Special damages for Mrs. Duffy

170. Sum of €45 for PIAB application and €4,090 for loss of clothing is reasonable and will be awarded.

171. The plaintiff claims a total of €557,000 for loss of earnings to date and into the future. But counsel accepts that these figures are advanced assuming the plaintiff would return to work and are the actuarial figures based upon that.

172. Whereas the plaintiff was prior to the indexed events certified as being permanently unfit by her GP I accept that it is likely that the plaintiff would have attempted some work when Charlie Jo was at school but I will treat the claim for loss of earnings as based on loss of job opportunity and award the sum of €100,000 under this heading.

173. The sum of €144,900 claim for personal hygiene products and €7,245 for household cleaning expenses and under these two headings I will award the sum of €100,000. I have awarded Patrick Duffy the sum of €100,000 in respect of domestic assistance which related to the cost of assistance for heavy chores and inside the house. In the case of Mrs. Duffy, I think a similar sum of €100,000 is reasonable for the extra assistance inside the house and in minding Charlie Jo.

174. I do not find that the claim for the double reclining chair to be reasonable given the evidence of the defendants’ assessor who accepts in this regard. A sum of €3,000 was claimed for the profiling bed which is reasonable. A sum of €12,000 for the steam shower. €300 for the shower seat all of which are reasonable.

The plaintiffs’ house

175. Mrs. Duffy is making the claim in respect of the home.

176. As I have already stated I believe that it was not unreasonable for the plaintiffs to move home notwithstanding the air quality test. I find that the plaintiffs would not have left their much loved home and moved to Mrs. Duffy’s brother’s house and then to the mobile home where they at present reside without very good reason as they sought and I believe in the circumstances that their move was reasonable. The property was sold for €235,000 having gone sale agreed for €250,000 with €15,000 being later taken off in respect of the work that would have to be done because of the septic tank issue etc. The plaintiff claim that the true value of the property was €385,000. In this Mrs. Duffy is supported by the evidence of Mr. C. the auctioneer and valuer who sold the house. When the property had been previously on the market in 2012 with the fear of the “rogue builder” it was priced at €285,000. On this occasion the asking price was €265,000.

177. The defendant’s expert valuer Ms. L. stated that the price of the house obtained was its open market price because it was on the market for some time and a number of persons were interested in it and it ultimately sold at that price.

178. I find that Mrs. L’s evidence is circular in its reasoning. The property did indeed ultimately make €235,000. €235,000 was the value of the house on the market in its condition as it was together with its history. The question remains why it was this value. I accept the evidence of Mr. C. the local auctioneer and valuer who sold the property that the house was given the asking price of €265,000 because of its “reputational damage”. Mr. C. stated and I accept that any purchaser who was interested in the property even if the purchaser was from outside the area would become aware of its history.

179. Mr. C. made a comparison with another property which sold for €374,500 but did not have a sea view. I accept the evidence of Ms. L. that that property is somewhat grander than the plaintiffs’ house and I also note and accept that when the plaintiffs’ house had been briefly on the market in 2012 for €285,000 that there had been an uplift in the market since then.

180. I find that a reasonable valuation of the property at the time was €315,000 but not quite at the level of the given comparator, and taking off the sum of €15,000 in respect of the septic tank issue the open market value of the property was without reputational damage was €300,000 and accordingly there is a loss to Mrs. Duffy of €65,000.

181. In addition, in a rare if not unique example of agreement the defendants accept that the new house which the plaintiffs propose to build would cost an extra €40,000 as a result of having to build same without any volatile organic compounds and any materials that will potentially cause problems and Mrs. Duffy is also entitled to this I note that the Duffys purchased a mobile home but they will presumably continue to have the benefit of that mobile home and will not allow any extra sum in respect thereof.

Summary of Mrs. Duffy

General damages to date €200,000.

General damages into the future €200,000.

PIAB application fee €45.

Loss of clothing €4,090.

Loss of job opportunity €100,000.

Hygiene products and cleaning expenses €100,000.

Domestic assistance into the future €100,000.

Natural profiling bed €3,000.

Steam shower €12,000.

Flip down shower seats €300.

Diminution in value of sale of house €65,000.

Extra expenses in building new house €40,000.

The total of these sums amount to €824,435 which I find to be fair and reasonable.

182. The first named plaintiff is entitled to a decree for €1,095,120 and the second named plaintiff to a decree for €824,435. I believe these sums to fair and reasonable in the circumstances taking into account all matters.

APPROVED

NO REDACTIONS NECESSARY

Mr. Justice Kevin Cross

Delaney v Circle K Ireland Energy Group Ltd (Formerly Topaz)

(Approved) [2020] IEHC 453 (30 July 2020)

JUDGMENT of Ms. Justice Bronagh O’Hanlon delivered on the 30th day of July, 2020

1. Authorisation under s. 32 of the Personal Injuries Assessment Board Acts 2003 and 2007 was granted to the plaintiff to bring the within proceedings on the 26th September, 2018 bearing Authorisation Number PL10032017631552. The plaintiff is 61 years and is a mother and grandmother and is in receipt of a disability benefit. She resides at Castlecomer Road, Co. Kilkenny. The accident, the subject matter of these proceedings, occurred at, what was then known as, “Topaz Filling Station”, Castlecomer Road, Kilkenny when the plaintiff was a visitor for the purposes of the Occupiers’ Liability Act 1995 (“1995 Act”), at the said premises. The said premises is now known as Circle K Ireland Energy Group Limited.

The Plaintiff’s Evidence

2. The plaintiff gave evidence that on or about the 20th May, 2017, when she was lawfully present at the said premises and walking across the forecourt of same, carrying a purse underneath her left arm with milk and a roll of bread in her hands, that her right foot was caused to catch on a lip on the ground and that she fell down with her face and head facing downwards, dropping the items she had been carrying. She described wearing a pair of black laced shoes on the occasion of the accident. The plaintiff informed the court that a man came to her assistance and telephoned her daughter, Lisa, asking her to come and help the plaintiff.

3. The plaintiff gave evidence to the effect that she was taken to the Accident and Emergency Department of St. Luke’s Hospital, Kilkenny where a plaster cast was applied to her left ankle fracture. Difene and Ibuprofen were prescribed. The plaintiff described her face as being “black and blue” and suffering a sore nose that recovered after one week. She also described suffering two broken teeth, which require her to wear a black band coming at the top of the teeth as these teeth are dead despite treatment and she does not have the option of having crowns fitted. She also said that her upper lip was bleeding at the time and that she was left with visible scarring and a slight tick in her lip which occurs once a week. The plaintiff gave evidence of having to use a straw in order to drink liquids for a couple of weeks following the accident and she said that, even now, she would not be able to eat an apple because of increased sensitivity around the teeth. The plaintiff also said that she suffered from bruising and soreness of her left shoulder.

4. The plaintiff sought physiotherapy in St. Luke’s Hospital, Kilkenny and, after two sessions, was given exercises to do at home and she has undertaken these exercises. The plaintiff informed the court that as a result of this accident, where previously she had been able to walk fifteen minutes into the centre of Kilkenny and fifteen minutes back to her home, she cannot now do that and can only do half of that amount either walking in and getting transport home. In the evening times, she suffers from swelling in the ankle and will require more physiotherapy. She has, what is described as, an antalgic gait and has not got full movement in her left foot – it suffers from stiffness as a result of this accident.

5. This accident, the plaintiff claims, has impacted on her life, causing her to have to move apartment and she is hopeful of obtaining an apartment on the ground floor. At the time of the accident, she was minding her grandchildren three days a week but, because of the prolonged recovery period she experienced, her children had to make alternative arrangements for the care of the grandchildren and she felt then that, at a certain point, it would not have been fair to them or to the grandchildren to change the arrangement they now had.

6. The plaintiff was asked about her disability benefit and how that arose and she explained that she had worked in shops when she was younger which involved standing all day and that she stopped working 32 years ago when she was pregnant with her first child and that, ten years ago, she obtained a disability allowance. In the intervening years, she described, however, how she had fostered no less than eight children and had run a crèche with other people but she was not able to stay standing for a whole day. It should also be noted that the plaintiff gave evidence that she had surgery on her left leg when she was fourteen years of age. She has a scar from the operation on her leg at fourteen years of age and she could not stand because of it.

7. Under cross-examination, the plaintiff recalled seeing the gully, being conscious of falling forward, feeling that the grid on the ground was coming up to her face as she fell and being afraid she was going to hurt herself “really badly”. She recalled receiving a great shock as a result of the fall. The plaintiff also noted that she did not fall near the concrete gully because, otherwise, she would have fallen out onto the footpath. She identified her fall as taking place near the side of the entrance proper to the facility where she gave evidence that she encountered a lip at a tarmacadam patch which caused her to trip and fall.

Evidence of Mr. Jack O’Reilly, Chartered Engineer

8. Mr. O’Reilly provided photographic evidence and, in his Photograph 2, it shows a joined line of a repaired surface. Photograph 4 shows a tape measure resting on the new tarmacadam ledge and he said that, from new to old surface, there was twelve millimetres of height. Photograph 7 showed fourteen millimetres or approximately half an inch. He noted chippings on the surface forming bubbles. Mr. O’Reilly was of the opinion that this ledge provided a trip hazard and that there was protruding chipping, that the patch was laid down recently and the defence confirmed that the exact period was four months prior to the accident.

9. Mr. O’Reilly contended that fourteen millimetre difference in height was not acceptable and he said that a neat square was clearly cut out and a two-inch depth of excavation took place and he said it should have been packed to be level and flush but that excess material was used in the reinstatement. He found that there was defective workmanship and that it was especially obvious in the difference in the level, which had potential to cause hazard. Mr. O’Reilly said, in his photographs, Photograph 7 showed a surface and a granular quality of same and he said a flat shoe against a very granular surface will cause a trip hazard and that the resistance of the chips plus the height of the lip together formed the trip hazard.

10. In terms of negligence, he said there was simply too much material rolled in, leaving the surface fourteen millimetres higher than the surrounding surface and that this happened at the reconstruction phase. He said it would be normal to assume a joint should be level.

11. He referred to the Guidelines for Managing Openings in Public Roads (April 2017), this material was presented late to the other side and the court did not find it to be directly relevant but rather was offering comparison and the defence objected to the fact that it was produced so late if it were to be relied on. The court felt it should disregard that portion of evidence.

12. Under cross-examination, Mr. O’Reilly was asked if the left hand square was vertical, that that would be an edged depression and he said he agreed with that but here the reinstatement surface was higher and therein lay the problem. He said surface crowning was not the same as what happened here and was not analogous to what we had. He said it was not a slope up, rather, a lip up and that it was not quite vertical but it was an improper laying of tarmacadam in the first place and it was not remotely similar to surface crowning. He said that there were protruding chippings which also caused a trip hazard and he said it is absolutely common sense that parity of surface level be achieved. Mr. O’Reilly was adamant that, had the reinstatement been properly carried out, there would be no difference in the level between the old surface and the reinstated surface and he referred to the use of the word “level” with regard to the ordinary meaning of that word. He thought that what had probably happened had been the excessive use of tarmacadam to ameliorate the situation concerning the ledge.

13. In his conclusion, in which he reiterated the above points, he also stressed that the existence of the lip on this patch appeared to him to be in breach of the Occupiers’ Liability Act 1995 on the part of the defendant.

Evidence of Mr. Seán Walsh, Consulting Engineer for the Defence

14. Mr. Walsh was of the view that the work itself was satisfactory concerning the particular patch, which the two engineers had inspected jointly, but he said there was a failure to match the level. Mr. Walsh also made the point that, with reference to his Photograph 5, he said the plaintiff stubbed her foot but he said people can trip and fall on flat surfaces, for example, a missed step. He said, with reference to his own Photographs 5 and 6, the area at the left of the tape measure was better but that to the right of the tape it was much worse. Mr. Walsh said that the public footpath is a tarmacadam footpath that is presented in medium to poor condition generally. It has a drainage channel running across the gateway opening with a gully grating towards the southern end. He described Photograph 7 as showing the greatest difference in level between the two surfaces. His evidence was to effect that the difference in level is 0.8 inches but he argued that it was not a question of a lip and it was a gradual rise occurring. Mr. Walsh made the point that normally we are measuring a vertical lip, but he argued that there was none here, rather, a gradual slope upwards and he fundamentally disagreed with Mr. O’Reilly contending that there was a lip, whereas, he said no, it is a changing gradient and that changes may arise from the terrain itself and that it was a very common feature, and he argued that there is no such thing as a flat surface. He made the point that a lip is a recognised hazard, whereas, changing in gradients are not. He said you could criticise that there was an element of crowning in terms of the aesthetics and drainage by millimetres. He said that even if there was crowning, more than was necessary, there were no health and safety implications arising from that. He said that tar, from a watering can, can have an overspill that does not matter because it is hot sticky material and it is a standard reinstatement bar crowning which he said was very high for this piece. Mr. Walsh said that the maximum difference between the levels was 20 millimetres. Mr. Walsh said he could not say how the plaintiff stubbed her toe.

Medical Reports

15. Medical reports were agreed and handed in; the medical report of Dr. Richard Carroll dated the 30th August, 2017 stated, in relation to the plaintiff’s injuries:

“[The plaintiff] had oedema on the left side of her ankle which was painful to touch. Her face showed no nasal deformity but some haematoma was present. She had some oedema of her nose. She had some excoriation in the upper lip area and both middle upper teeth were painful to touch with some swelling of the surrounding tissues. She was referred for x-ray of her left ankle, right knee and nose and dental assessment was also advised due to the tooth impaction as a result of the fall.”

16. The report further stated that at the Accident and Emergency Department of St. Luke’s Hospital, the plaintiff underwent an x-ray of the facial bones and right knee which did not demonstrate any bone injuries. The x-ray of her left ankle showed a fracture of the left lateral malleolus. This was described as an un-displaced Weber A type fracture. The plaintiff was managed with analgesic (pain relief) medication and her left ankle was put in a back slab cast whilst she was referred for orthopaedic clinical assessment. Sulfidine and Difene medication were prescribed. The plaintiff was reviewed on the 26th June, 2017 and was in a walking boot at that time. She had still a lot of swelling in the ankle region and was very stiff with poor range of movement. She was seen in the fracture clinic and the fracture was deemed to be healing well. The Locum Consultant Orthopaedic Surgeon who saw her noted that she had pre-existing deformity of the tibial region following a surgery some 40 years previously. The plaintiff was seen on the 28th August, 2017 for assessment and she had a walking boot for six weeks with two crutches at that stage and she had only in the previous two weeks been mobilising with no crutch and this was very inconvenient for her living as she lived in an apartment up two flights of stairs. She was more or less housebound for quite a while. She said she still had bruising around the right knee and she had hit her two front teeth heavily in the accident, suffering a fracture to the left front tooth and was having ongoing root canal treatment to both front teeth which were still very sensitive causing her to eat from the side of her mouth and she was unable to bite with the two front teeth. Scar tissue was obvious above the upper lip region in the midline.

17. Extensive treatment regarding her dental injuries furnished by REVA Dental and this involved at least nine visits to the dentist. The necessity going forward, two crowns at a cost estimated at €650.00 each. Root canal treatment was administered over the various appointments with a reduction of symptoms as of the 21st September, 2017.

18. Mr. Petr Jemelik, Consultant Orthopaedic Surgeon in Waterford, reviewed the plaintiff and confirmed orthopaedic treatment as set out above. The plaintiff was discharged from the clinic in July, 2017. She was described as having pain and stiffness with long distance walking and no aggravation of a pre-existing condition and, on examination, on the 26th February, 2018, she was found to have a free range of movement on examination with 15° of dorsi-flexion, 40° of flexion, full stability medial and lateral and just minimal local tenderness around the lateral malleolus. There was no clicking, no locking and no swelling at that point. X-rays on the 9th June, 2017 showed a healed fracture of the lateral malleolus Weber A in good alignment. At that stage, the consultant felt that she would feel some limitation and stiffness for another three to five months but she would gradually improve regarding the pain and stiffness. A full recovery post-ankle fracture is up to twelve months post initial injury.

19. Smiles Dental provided a report dated the 16th May, 2018 for the Personal Injuries Assessment Board. It gave an estimated porcelain crown replacement at €800 per tooth each with an anticipated replacement between ten and fifteen years. This report noted that a common result of such trauma is nerve death of the teeth requiring root canal treatment as was the case here. This report also confirmed that internal bleaching was carried out by the treating dentist subsequent to completion of the root canal treatment to improve the colour of the teeth and also confirms the scar on the upper lip which resulted from the accident and a feeling the plaintiff had of “nerve hopping” from the scar a few times a week.

Report of Mr. Robert Din, Consultant Orthopaedic Surgeon

20. Mr. Din provided two reports to the court, dated the 26th May, 2018 and a subsequent report dated the 5th June, 2020. In 2018, Mr. Din felt that the plaintiff had a mild antalgic gait with swelling in her ankle most days and she said that the left ankle is stiff compared to the right ankle and she has difficulty climbing and descending stairs due to the left ankle pain and that she had no complaints regarding her left knee or left hip. He noted how the plaintiff described her teeth being quite sensitive and that she had some mild difficulty biting due to sensitivity of the upper front tooth.

21. He found some swelling over the lateral malleolus and the range of movement of the ankle was restricted at that date in terms of dorsi-flexion at 35° and plantar flexion at 45°. The plaintiff was found to have a full range of motion of the subtalar, midfoot and forefoot joints. In terms of opinion and prognosis, at that stage, she was found to have residual stiffness in the left ankle and would require ongoing physiotherapy to same over a six to twelve-month period but he anticipated a full recovery to pre-injury level of function with regard to the left ankle injury.

22. Soft tissue injuries to the mouth and teeth were likely to resolve over the following six-month period.

23. The plaintiff was found, in Mr. Din’s second report, to have an antalgic gait that she done poorly following the high injury to the left ankle and soft tissue injuries to the mouth in that she has residual stiffness in the ankle and will require ongoing physiotherapy to the left ankle for the next twelve to eighteen months. This report anticipated the plaintiff dealing poorly from her left ankle fracture in view of persistent stiffness within the ankle and that she might be left with permanent stiffness in same, post physiotherapy, and that she has a small risk of posttraumatic arthritis of the left ankle in the region of 5 to 10% at five to ten years post-injury. He gave her a fair prognosis. The antalgic gait continued as well as some swelling over the lateral malleolus and he said that, at this stage, the range of the ankle is restricted on dorsi-flexion at 40°, plantar flexion at 60° and she was found to have a full range of motion of the left subtalar, midfoot and forefoot joints and the left foot was found to be neurovascularly intact.

Findings of Fact and Application of the Law

24. The court has noted that there are articles of agreement signed on the 26th January, 2017 between Topaz Energy Limited and a third-party herein. The court was informed that this accident occurred post the said agreement. The third-party were not able to take part in the proceedings at this stage due to the Covid-19 restrictions. There is no doubt in the mind of the court having heard all the evidence relevant to the matter and having carefully considered same that there was a trap point of reinstatement where the plaintiff fell. There was a joint inspection carried out and in reality there is not a huge difference between the position of both engineers save on one main issue. The reality of the case is that the plaintiff was at all material times a visitor at the defendant’s premises in accordance with the definition provided in s.1 of the Occupiers’ Liability Act 1995. She was entitled to proceed with safe entry to and egress from the said premises. The reality of the case is that, on the balance of probabilities, from the engineering evidence, there was too much filled bitumen put into this reinstatement operation and a patch of tarmacadam identified was in all probability provided as a repair of pre-existing defective surfacing when the forecourt had been recently refurbished. There was a lip extending across the width of 1950 millimetres. The plaintiff’s engineer noted that this arose by virtue of the fact that fresh black tarmacadam rises above the pre-existing tarmacadam by a height of approximately fourteen millimetres along the joint line and he notes that, in his evidence, while the difference in height is not entirely vertical, the lip includes projecting small chippings which would have the effect of stopping a person’s foot and he further noted in his evidence that the plaintiff was wearing a black laced shoe and that that would stub against the chippings. It is quite clear examining all of the photographs that the lip arises due to the placing of an excessive depth of material in the patched area and it is a reasonable expectation that the level of the fresh surface and the pre-existing surface should be achieved as even. Incorrect workmanship was clearly at fault because this is quite a definite tripping hazard which has resulted. The fourteen millimetre height difference was, in the opinion of this Court, sufficient to present a trip hazard. The court notes the decision of Charleton J. in Allen v. Trabolgan Holiday Centre Ltd. [2010] IEHC 129, where Charelton J. pointed out the necessary care that should be taken in relation to the maintenance and care of a footpath which had accumulated mud. Charleton J., at para.11, stated:

“What care is reasonable in the circumstances depends to a large extent on how visitors could reasonably be expected by the occupier to behave on the premises…Perfection is not called for, simply reasonable care. That would have been present had there, perhaps, been extra gravel on the path or had the path been tarmacademed across with an appropriate surface that provided grip or otherwise treated so that water could run down the slope without the accumulation of mud.”

25. In the view of this Court, it is reasonably foreseeable that a person such as the plaintiff would suffer such an accident in these circumstances as there was a lack of reasonable care in the reinstatement of the pavement. The patch in question forms a distinctive raised surface and raised in an uneven way as was amply demonstrated by the engineers. I do not accept the evidence given that the difference in level takes the form of a slight gradient. It would describe it as rather distinctive.

26. The court assessed the plaintiff as a reasonable individual and, although she obtained a disability allowance ten years, gave evidence of fairly significant periods of work undertaken by her at different times in her life. She came across as a credible witness and did not exaggerate her symptoms in any way. The medical reports were handed in by agreement.

27. The court was addressed and reference was made to a number of decisions on trip and fall accidents which were produced by this Court, but it was pointed out that it was very much felt that this case turned on its own facts (note that reference was made to O’Toole v. Tipperary County Council [2018] IEHC 447; Hampson v. Tipperary County Council [2018] IEHC 448; Furlong v. Wexford Borough Council [2018] IEHC 450; and Kearney v. Tipperary County Council [2019] IEHC 242). An implicit reference was made to Hampson v. Tipperary County Council [2018] IEHC 448, a case in which this Court assessed a similar situation but did not find in favour of the plaintiff. In Hampson, the plaintiff claimed to have suffered injuries after falling as her foot had become trapped in a large hole between two concrete kerbs. In comparison to the factual scenario that arose in this case, the court did not find the plaintiff in Hampson to be reliable as there was a prolonged period before seeking medical treatment after the accident, there had been no recent repairs to the pathway and the court did not find that there was negligent construction of the footpath. These findings are in marked contrast to the factual scenario that was put to the court in this case.

28. Reference was also made to the decision of Cross J. in Loughrey v. Dun Laoghaire County Council [2012] IEHC 502. That case concerned subsidence and refers to a sloped area and to the conclusion in the circumstances as evidenced by the accident itself that there was a hazardous differential of between 5mm and 6mm which was found in that case to be a tripping hazard to the plaintiff and a sort of hidden danger or trap which enabled the plaintiff to be entitled to succeed without any contributory negligence against the defendants.

Quantum

29. The plaintiff suffered facial injuries as set out above with bruising and residual irritation over her upper lip. She suffered an injury to her left ankle as set out in the above medical reports. She suffered injury to her right knee and teeth injuries which require continuous treatment with nine visits to the dentist necessary and indicated to the court that she will probably have to have two crowns fitted which are deemed appropriate further treatment should she desire same. The report of Mr. Robert Din of 5th June, 2020 gives a poor outcome for her high energy injury of her left ankle and soft tissue injuries to her mouth. She has residual stiffness in the ankle and he envisages twelve to eighteen months’ further treatment including physiotherapy but with the possibility of persistent stiffness in the left ankle. He gives her a small risk of posttraumatic arthritis in the left ankle between 5 and 10% in five to ten years’ post-injury and just gives her a fair prognosis. The court has taken into account the fact that the plaintiff had worked at different stages throughout her life and could not resume minding her grandchildren due to the passage of time and ongoing recovery and had to seek alternative accommodation due to the impact her injury had on her ability to climb stairs to her apartment.

30. In all the circumstances, I think there has been significant medical sequelae as set out in the medical reports which I accept fully and consider that €70,000.00 be appropriate sum by way of general damages and the multiplicity of sites of injury as well as the significant fracture and the risk of now healed but with the ongoing stiffness issue and in suffering to date. Some consideration in this figure is given to the fact that a further period of time with no guarantee of full recovery is envisaged. Items of special damage are agreed at €1,770.00 giving a total figure in the sum of €71,770.00.

Quinn v Topaz Energy Group LTD

(Approved) [2021] IEHC 750 (01 December 2021)

JUDGMENT of Ms. Justice Egan delivered on the 1st day of December, 2021

Introduction

1. The plaintiff brings these proceedings against the defendant, Topaz Energy Group Limited, her employer, for damages for nervous shock suffered in connection with a murder in the defendant’s service station, where she worked. The plaintiff’s case is that she suffered avoidable trauma and psychiatric injury because she had no safe means of summoning assistance. In particular, the plaintiff contends that she did not have access to a mobile panic alarm, notwithstanding that the defendant’s safety statements, risk assessments and emergency response plan (to which I shall refer collectively as the defendant’s “H & S protocols”) provided that panic alarms ought to have been available to staff members. In addition, the plaintiff maintains that her trauma and resulting injury were aggravated by a lack of training on how to respond to emergencies.

2. The defendant’s case is that this event, which had all the hallmarks of a contract killing, was entirely unforeseeable; that the defendant cannot be held liable for its consequences; that, the plaintiff should have been wearing a mobile panic alarm at the time of the incident as set out in the defendant’s H & S protocols; and that, as a panic alarm could not have prevented the incident occurring or any resulting nervous shock suffered by the plaintiff, its absence is irrelevant.

3. For the reasons set out in this judgment, I have concluded that the defendant acted negligently and in breach of statutory duty in failing to implement its own H & S protocols and thereby failing to provide the plaintiff with a mobile panic alarm. In addition, I find that, although this extremely violent event was not foreseeable, this is not a good answer to the particular case made by the plaintiff.

Events giving rise to proceedings

4. The plaintiff, who was born on the 30th July, 1986 and was 24 years old at the time of the incident, was employed by the defendant as a deli assistant at the delicatessen counter of the defendant’s service station at Caherdavin, Limerick. On 22nd February, 2010, the plaintiff arrived for work a little before 6 am. One other colleague was on duty, working at the till area, which was equipped with a static panic alarm. The deli area was not so equipped because cash was not directly handled at the deli counter.

5. As the plaintiff commenced her duties, a Mr. Treacy, the bread delivery man who was known to the plaintiff, entered the shop. At approximately 6.34 am, whilst the plaintiff was in conversation with Mr. Treacy, another individual who has since been identified as Mr. Coughlan, entered the shop carrying a bag from which he drew a gun, and in front of the plaintiff, shot Mr. Treacy in the head. On observing this, the plaintiff’s colleague, who had been at the till, vaulted over the counter and left the shop without, it seems, activating the static panic alarm at his station. As a result, the plaintiff was alone in the shop with the assailant and, because she was behind the deli counter, she could not activate the static panic alarm at the till area. Company policy, reasonably enough, was that staff were not permitted to have mobile phones on their person whilst on duty and phones would usually be left in lockers located in a separate part of the shop. However, on this occasion the plaintiff’s mobile phone was in her coat in a cloakroom adjacent to the deli counter. On witnessing the shooting, the plaintiff dropped to the floor behind the deli counter. She then crawled to the cloakroom in order to access her phone. When she got to the cloakroom, she heard more shots being fired in the shop and could smell the gunpowder. The assailant appears to have shot Mr. Treacy several times. The plaintiff retrieved her mobile phone. In a state of dread she called the emergency operator and explained the position as quickly and in as hushed a voice as possible. Because the plaintiff could hear that the assailant was still in the shop, she was terrified that he would hear her. The assailant had made no effort to cover his face. The emergency operator attempted several times to call the plaintiff back. The plaintiff’s mobile phone was not on mute and therefore rang aloud. The plaintiff repeatedly hung up on the incoming calls and attempted to mute her phone as she was afraid that the assailant would hear her phone ringing, find her and kill her. The plaintiff stated in her evidence: “I thought I was going to die”.

6. At one stage during the incident the plaintiff peeped around the door of the cloakroom to see if the assailant was still in the shop and observed him picking up spent cartridges. The plaintiff could not precisely recall if this occurred before or after she had phoned for help but thought that it was the latter. I find that this is more likely to be the case as it makes sense that the plaintiff would have looked around the cloakroom door after calling for help, rather than before. The assailant left the premises just after 6.26 am, although the plaintiff did not know this until 6.27 am approximately when she heard other people enter the store. Roughly five minutes after the assailant had entered the store the Gardaí arrived, having been alerted by a call from a customer in the garage forecourt.

The pleadings

7. The case, as pleaded in the personal injury summons which issued in July of 2012, is somewhat generic. Essentially the plaintiff pleaded that the defendant failed to take adequate or reasonable precautions for her safety and failed to provide a safe system of employment. The plaintiff also pleaded that the defendant acted in breach of the provisions of the Safety Health and Welfare at Work Act, 2005 (“the 2005 Act”), in particular ss. 8, 9 and 10 thereof.

8. After the exchange of notices for particulars and replies thereto, the defence was delivered in December of 2012. Discovery was made in 2015 of, inter alia, documents relating to (a) the defendant’s H & S protocols and (b) the plaintiff’s training.

9. The case was very slow coming to trial. Expert reports were exchanged pursuant to S.I. 391 of 1998 two weeks before the trial wherein the plaintiff disclosed, inter alia, a report from Mr. Martin Stairs, security consultant. The pleadings had not advanced the criticism made by Mr. Stairs concerning the defendant’s failure to equip the plaintiff with a mobile panic alarm. In legal submissions at the end of the case, the defendant relied upon the judgment of the Court of Appeal in Edina Nemeth v. Topaz Energy Group [2021] IECA 252 in which, Noonan J. commented unfavourably on the fact that, as it was being opened before the High Court, the case as originally pleaded was entirely abandoned such that the defendant was faced with meeting a new case. However, the circumstances of Nemeth were more extreme than in the present case. In Nemeth, the case ultimately made at trial was neither pleaded nor defined in the plaintiff’s disclosure pursuant to S.I. 391 of 1998. The defendant in Nemeth had no notice whatsoever of the case ultimately advanced by the plaintiff at trial. In the present case, although the plaintiff’s case emerged very late in the day (eleven years post event), it was exhaustively set out in Mr. Stairs’ report. Crucially, the defendant did not contend that it was unable to deal with the new case and made no objection to Mr. Stairs’ evidence. Furthermore, although the defendant indicated that there had been difficulty in sourcing an independent security expert in the short time available, it did ultimately retain its own security expert to address the issues raised in Mr. Stairs’ report. Therefore, although it is undesirable that the plaintiff’s case in relation to the absence of the panic alarm was first intimated at such a late stage, nonetheless the case presented by the plaintiff at trial was fully defended by the defendant; and I will deal with the case on that basis.

Matters not in issue in the case

10. It may be of assistance to outline those issues which are not in dispute. First, it is common case that the defendant’s policy and the intention of its H & S protocols, is that all employees, including those at the deli counter, should wear portable panic alarms (these are small devices, worn on a belt or on a lanyard, which when pressed, alert the emergency operator to an incident). Secondly, the parties’ respective experts considered that policy to be a reasonable and practicable safety measure for this particular premises. The defendant never suggested that it was not intended that this policy be complied with by its deli staff. Nor was it suggested that compliance was unnecessary or that implementation of this policy would be too expensive, too onerous or otherwise impracticable. None of this was in issue. What was in issue, however, was that the defendant maintained that the plaintiff herself ought to have known that she should wear a panic alarm and that her failure to wear one on this occasion could not be laid at the defendant’s door. Thirdly, it is common case that the terrifying incident which the plaintiff witnessed was entirely unforeseeable. Thus, no case is made by the plaintiff that the defendant could have taken any steps to prevent the assailant from entering the shop and murdering Mr. Treacy in front of her. Fourthly, it is common case that, as a result of these events the plaintiff sustained a recognisable psychiatric illness, post-traumatic stress disorder (“PTSD”). Fifthly, it is not in dispute that this PTSD was shock induced and was sustained by reason of actual or apprehended physical injury to the plaintiff and another person, namely, Mr. Treacy. Sixthly, the plaintiff accepts that she would have sustained a recognisable psychiatric illness, most likely PTSD, in any event, merely by witnessing the shooting and that some injury was unavoidable. However, the plaintiff maintains that her shock, trauma, and resulting psychiatric illness were avoidably aggravated by reason of her vulnerability, isolation and inability to summon assistance.

Legal principles

11. It is convenient to briefly set out the applicable legal principles relating to employer’s liability at common law and under statute, and to the recovery of damages for psychiatric injury for nervous shock.

12. The plaintiff and the defendant rely upon Geraldine Martin v. Dunnes Stores Dundalk [2016] IECA 85 in which, at para. 18, Irvine J. (as she then was) stated:

“Time and time again the courts, in personal injuries litigation, have stressed that the duty of the employer to their employee is not an unlimited one. The employer is not to be taken as an insurer of the welfare of their employees. In Bradley v. C.I.E. [1976] I.R. 217 at 223, Henchy J. stated as follows: –

a. ‘The law does not require an employer to ensure in all circumstances the safety of his workmen. He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances.’

b. The duty owed by an employer of course varies depending upon the knowledge and experience of the employee. Further, the more hazardous the work in which the employee is involved the more stringent the duty of the employer to protect the worker. However, their duty is met once they take reasonable and practicable steps to avoid accidental injury. As has often been stated, it is not possible to eradicate all risks and accidents.”

13. Later at para. 24 of the judgment Irvine J. stated:

“Critical to my conclusions on this appeal is the extent of the onus placed on an employer to take due care for the safety and welfare of their employee. … In the context of this case, it is reasonable to say that the obligation of the defendant was to identify potential hazards likely to affect the safety and health of the plaintiff and then, whether through training or the implementation of procedures and precautions which were practicable in all the circumstances, to guard against those risks: see Quinn v. Bradbury [2011] IEHC per Charleton J.”

14. At para. 36 Irvine J. characterised the obligation of the employer in these terms: “to identify potential hazards and then implement procedures designed to protect the employee from the risks pertaining to such hazards…”

15. Not every failure to comply with a statutory duty entitles a person injured to recover compensation from the party in breach. However, the general scheme and context of the 2005 Act evinces an intention that the duties and obligations which it imposes upon employers are such that their employees are intended to benefit therefrom and that an employee should be entitled to sue in respect of a breach thereof provided, of course, that the employee can establish a causal link between the specific breach of statutory duty and the infliction of damage.

16. Section 8 (1) of the 2005 Act provides:

“Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.”

17. Subsection (2) of section 8 is of particular relevance:

“Without prejudice to the generality of subsection (1), the employer’s duty extends, in particular, to the following:

(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;

(e) providing systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health;

(g) providing the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees;

(h) determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of his or her employees when identifying hazards and carrying out a risk assessment under section 19 or when preparing a safety statement under section 20 and ensuring that the measures take account of changing circumstances and the general principles of prevention specified in Schedule 3;

(i) having regard to the general principles of prevention in Schedule 3, where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;

(j) preparing and revising, as appropriate, adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger;”

18. In this context, it is also relevant to note that the words “reasonably practicable” are defined in s. 2 (6) of the 2005 Act, as follows:

“For the purposes of the relevant statutory provisions, “reasonably practicable”, in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.”

19. It is also important to note that the employer’s duty is balanced in s. 13 (1) (a) of the 2005 Act, by emphasising that it is the duty of every employee while at work to take reasonable care for his own safety, health and welfare.

20. The leading authority on liability for negligently inflicted psychiatric damage is the decision of the Supreme Court in Kelly v. Hennessy [1995] 3 IR 253 which effectively held that, in order to recover damages for nervous shock, a plaintiff must establish:

i) That he or she has actually suffered a recognisable psychiatric illness;

ii) That such illness was shock induced;

iii) That the nervous shock was caused by the defendant’s act or omission;

iv) That the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff; and

v) That the defendant owed the plaintiff a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.

21. In the present case, there is no dispute as to criteria i), ii) or iv). The parties differ on criterion iii), namely whether the plaintiff’s shock was caused by the negligence of the defendant. Although not disputing its obligation to furnish its staff with panic alarms, the defendant maintains that they had made one available to the plaintiff and that she herself was responsible for not wearing one on the occasion in question. For reasons explained below, I reject this argument. In addition, criterion v) is in issue: the defendant maintains that the injury to the plaintiff was not foreseeable and that it therefore did not owe her a duty of care to avoid it. I explain below why I reject this argument also.

Factual evidence on the provision of panic alarms and conclusions in relation thereto

22. As stated, it is accepted that the intention of the defendant’s H & S protocols is that all employees, including deli counter assistants, would wear panic alarms and, further, that this was an appropriate and necessary measure to guard against the risk of criminality. It is not therefore necessary for me to decide whether a failure by the defendant to make panic alarms available to its staff represents a departure from the conduct of a reasonable and prudent employer.

23. Therefore, the relevance of the defendant’s H & S protocols is limited to ascertaining if there is substance in the defendant’s contention that the plaintiff herself knew that she should have worn a panic alarm on the occasion in question and is responsible for any consequences of not having done so.

24. The plaintiff started working for the defendant in 2005, initially at the defendant’s premises at Dock Road, Limerick. Insofar as it is relevant, on 15th January, 2005, the plaintiff completed a training module and thereafter filled out an “ On the job training manual/workbook”. This posed a series of questions to trainees including “ when should you wear your panic alarm?” to which the plaintiff replied, “at all times”. Likewise, the plaintiff signed a safety statement on 20th November, 2008 which provided, inter alia, that station staff will “wear panic alarms”.

25. On the other hand, the defendant’s more recent safety statement/risk assessment dated February 2008 is less clear on this issue. Thus, although the table in the risk assessment identifies the relevant hazards – violence against the person (with a low risk of assault on staff or customers) and criminal activity (with a low risk of robbery) – and states that “staff” should wear panic alarms, it also states that the station manager is obliged to ensure that personal panic alarms are provided to “all staff that work with cash”. This safety statement was, it seems amended in April 2008. As amended it identifies roughly the same hazards – robbery and security incidents – and provides that “ The manager or supervisor in charge is responsible to take the appropriate action” and includes the advice that: “ Only if it is safe to do so should you press your panic alarm”. This document is not site specific and is not signed by any member of staff at the Caherdavin premises, although I understand that it was available on site in a folder for staff to consult.

26. The defendant also produced an emergency response plan, which is similar to the safety statement dated February 2008 and which, in a signed document dated 5th February, 2008, the plaintiff acknowledged that she had “ read and understood”.

27. On considering the defendant’s H & S protocols as a whole, it seems to me that whilst the plaintiff’s initial training documentation was to the effect that all staff should wear personal panic alarms, the written documentation available at the Caherdavin premises was ambiguous on the wearing of panic alarms. Therefore, in assessing the defendant’s argument, the court must have regard to the evidence of both parties about the practical implementation, or otherwise, of the defendant’s H & S protocols relating to panic alarms.

28. The plaintiff’s uncontradicted evidence, was that she had never seen a deli assistant wearing a panic alarm; that she had only ever seen till staff wearing panic alarms; and that her own impression had been that deli staff were not required to wear, and indeed would not be furnished with, portable panic alarms.

29. The plaintiff said that she had never at any stage been given a panic alarm. It was not put to the plaintiff that she had been furnished with a panic alarm; nor that she had been informed, shown or made aware of where panic alarms were kept on site. Rather, in this latter regard, it was put to the plaintiff that there were four panic alarms on site and that the “ usual procedure” was that they were kept in a manager’s office. However the difficulty with this is that the incident occurred shortly after 6 am and the manager does not, and on this occasion did not, come on duty until 7 am. If the alarms were stored in the manager’s office, then it is difficult to infer that the plaintiff had access to them. Even if the manager’s office was not locked at the time of this incident (and the evidence is that it might well have been), it is unreasonable to suggest that, without prior instruction or permission, the plaintiff ought to have taken it upon herself to go into the manager’s office prior to the arrival of the manager and search for a panic alarm.

30. The plaintiff was asked in direct examination whether she had been trained in the use of a personal panic alarm. She responded that she had only ever seen a photograph of a panic alarm. That evidence was not contradicted by the defendant. This is of some significance in circumstances where it appears that the particular panic alarms stored in the manager’s office had two separate buttons which must be pressed simultaneously in order to avoid a false alarm. Therefore it was not self-evident how to use this type of personal alarm.

31. The plaintiff’s direct line manager, although listed on the defendant’s schedule pursuant to S.I. 391 of 1998, was not called to give evidence. The defendant’s factual evidence was given by Ms. Áine Grealish, area manager, whose responsibility it was to visit the shop approximately once a month and to assess, inter alia, compliance with safety protocols. Ms. Grealish’s evidence was that this shop was low risk and that the only incidents which had occurred in the store in the previous five years, were “ drive offs” rather than violent incidents.

32. Although Ms. Grealish confirmed that there were four panic alarms in the store, she gave no evidence that she had ever seen any deli counter assistant in the store wearing a panic alarm, or that anyone else had instructed deli counter staff to wear a panic alarm or told them where they could be found.

33. She gave evidence of an inspection of the store a matter of weeks before the incident when she had “noted” that an employee was not wearing a panic alarm. The employee in question worked, not at the deli counter but at the till, and there is no suggestion that the plaintiff was present or aware of Ms. Grealish’s visit. Ms. Grealish stated that the plaintiff had not raised any issue in relation to panic alarms at any of her site inspections. This is not surprising given Ms. Grealish’s evidence that, although the intention was that all employees would wear a panic alarm, the “focus” (by which I infer the focus of her inspections and the learnings emanating therefrom) was on employees who handled cash.

34. Ms. Grealish gave no indication that there was any particular practice in operation for making panic alarms available to employees in the shop. She stated that the “ usual practice” in Topaz was that panic alarms were either kept in the manager’s office or that employees would obtain their panic alarms from their predecessor at shift change. It goes without saying that the latter practice would only be effective if deli staff were regularly wearing panic alarms which it seems they were not. In any event, the plaintiff was the first employee on duty at the deli counter on 22nd February, 2010.

35. Ms. Grealish accepted that notwithstanding that the defendant’s emergency response plan contemplated training in the procedures laid out therein, there was no evidence of any staff training concerning panic alarms.

36. In summary, there is no evidence whatsoever that, during the several years of her employment at the shop, the plaintiff was ever informed by her line manager, by Ms. Grealish or by anybody else, that as a deli assistant, she ought to wear a panic alarm, or indeed informed of where she might find one, or how to use it.

37. I find that notwithstanding the plaintiff’s early training documentation, in light of the practice in the premises where she worked, it was reasonable for her to believe that panic alarms were intended only for staff who handled cash. In this regard, it is surprising that the defendant did not call the plaintiff’s direct line manager, any of her co-workers or any other witness, to give evidence that the plaintiff, or any other deli assistant working in the Caherdavin premises, wore, or were instructed to wear, panic alarms. It would have been reasonable and, indeed, expected for the defendant to call such a witness if it had wished to establish these matters and no explanation was provided as to why they did not. In these circumstances, I find that the evidence of the plaintiff on this issue is further strengthened. (see Whelan & Lynch v. Allied Irish Banks plc & Ors [2014] IESC 3).

Expert evidence on scope of duty of care and conclusions in relation thereto

38. The plaintiff called evidence from Mr. Stairs, security and risk management consultant. Mr. Stairs holds a Master of Science, MSc (MER) in security and risk management and has over 38 years’ experience in the security industry in the areas of risk assessment and design and development of security systems and procedures. He has held a variety of offices with the Irish Security Industry Association. He has represented the security industry before the National Standards Authority of Ireland and was part of an industry group which worked with the Gardaí to develop the Garda Alarm Policy. He has worked closely with the security industry regulator, the Private Security Authority. He was a contributor to the development of an independently assessed quality standard for the Irish security industry. He was the Irish Security Industry Association’s representative on the Security Congress of Ireland and has represented Ireland at European level at the Confederation of European Security Services.

39. The defendant’s expert, Mr. John McLoughlin is a security and investigations manager at Ashtree Risk Group since 2016. For 20 years previously, he was a senior incident coordinator for An Garda Síochána specialising in serious crime investigation including multiple manslaughter and murder cases. He also holds a BA (Hons) in Law and Administration of Justice from the Institute of Public Administration, UCD.

40. I find that both experts are qualified to give expert opinion on the issues arising in these proceedings. The plaintiff tentatively objected to Mr. McLoughlin’s expertise on the basis that his qualifications and experience were not comparable to those of Mr. Stairs and because he was not independent, as since 2016, Ashtree Risk Group had been retained by the defendant to assist in the development of the defendant’s H & S and emergency protocols. However those objections, go to weight rather than admissibility. I am satisfied that both experts gave evidence in non-partisan manner. Indeed, what is striking is that there was very little difference between the evidence of the two security experts. Thus, both security experts proceeded on the basis that the defendant’s policy was that all employees should wear a panic alarm and that, in the circumstances, this was a reasonable and practicable policy having regard to the risks identified. In particular, Mr. McLoughlin’s view was that the measures identified were reasonable, cost effective and practical to meet all known and foreseeable risks. There was no suggestion that it was not reasonably practicable to make panic alarms available to all employees and both experts noted that the shop had been supplied with four portable panic alarms for this purpose. I therefore find that the measures identified in the defendant’s H & S protocols both define and reflect the parameters of the defendant’s duty of care to its employees at this shop.

41. The two experts differed on the issue of training, exercises and drills. Although I find that the defendant ought to have given the plaintiff some basic training and instruction on where to locate and how to activate the panic alarm, I don’t think that their obligation goes much further than that. I reject as unreasonable the proposition advanced by Mr. Stairs to the effect that the defendant had an additional duty, analogous to that applying in the case of fire drills, to conduct regular drills/simulations practising how these security measures would be put into effect in the event of a robbery/security incident. I think that this is going too far, particularly as criminality and security incidents were extremely rare.

Sequelae, expert medical evidence and conclusions in relation thereto

42. Unsurprisingly, the plaintiff, who had no prior psychiatric history, was terrified and extremely distressed. She was brought to the accident and emergency department of Limerick Regional Hospital, assessed and anti-anxiolytic medication was prescribed. The plaintiff was discharged to the care of her General Practitioner, Dr. Ray O’Connor whom she attended the following day and approximately seven times thereafter. In light of the plaintiff’s chronic distress, Dr. O’Connor referred her to the care of Dr. Patrick Doyle, consultant psychiatrist, who prepared two reports and also gave evidence to the court. The plaintiff first attended Dr. Doyle’s clinic in August 2010 and was diagnosed with PTSD. Anti-depressants and hypnotic medication were prescribed and psychotherapy was arranged.

43. The plaintiff’s PTSD included the following symptoms: irritability, depressed mood, hypervigilance, easily startled, avoidance of reminders of the incident, flashbacks to what had occurred, panic attacks, weight loss and agoraphobia. In this latter respect, it is notable that the plaintiff was unable to go outside her house alone for eighteen months’ post incident.

44. Dr. Doyle reviewed the plaintiff in October 2011. She had improved somewhat but still had residual symptoms. She continued to experience problems sleeping, had nightmares and flashbacks (albeit less frequently) and was still hyper alert. In addition, whilst she had previously experienced panic attacks about once a week, they were then a monthly occurrence. Dr. Doyle’s report indicated that the plaintiff had remained on anti-depressants for a number of months and had required at least 20 sessions of psychotherapy.

45. The defendant’s psychiatrist, Dr. Catherine Corby, who did not give evidence to the court, provided a report based on an examination of the plaintiff in June of 2017 to which I have also had regard. Dr. Corby’s report indicates that, in addition to the treatment outlined above, the plaintiff also attended the Henry Street Adult Counselling Service for a number of years. When Dr. Corby reviewed the plaintiff in 2017 she was still fearful and although still undergoing counselling, was taking no medication. The plaintiff reported that she was not reliving her experience as frequently as previously; that she continued to have nightmares; and that she would still not go out on her own, which Dr. Corby attributed to “realistic fear”. Dr. Corby agreed that the plaintiff had experienced PTSD but felt that, having undergone treatment, she no longer met the criteria for PTSD.

46. Dr. Doyle’s most recent report was based on an examination of the plaintiff in September 2021. The plaintiff’s symptoms have improved a good deal and are now less frequent and less intrusive. The plaintiff, however, still requires to be accompanied to the shops. The plaintiff has had two children since these events and Dr. Doyle noted that she worries excessively about their safety.

47. Dr. Doyle’s report indicated that the plaintiff had developed chronic PTSD and that he expected her symptoms to continue in the long term. In his oral evidence, Dr. Doyle stated that the residual symptoms experienced by the plaintiff “may not qualify for full PTSD”; that he could not say that she would not continue to experience symptoms in the future; that she may also suffer a future relapse; that she was at an increased risk of depression in later life; and that trauma increases the risk of hypertension.

48. The plaintiff gave evidence as to her injuries in an understated manner. Her evidence in relation to her symptoms and treatment was consistent with Dr. Doyle’s evidence. In particular, she gave evidence of a long period of agoraphobia during which she did not wish to go outside and remained alone in the house. The plaintiff stated that she still will not go to the shops alone.

49. The plaintiff was off work for five or six months after the incident. I would like to emphasise that the defendant was very supportive over this time, both in relation to time off work and in arranging counselling. It is also notable that when the plaintiff did return to work, she felt able to work again behind the deli counter, but in a different shop, in the defendant’s service station at Dock Road. Initially, the plaintiff worked part time but gradually increased her hours to full-time. The plaintiff unfortunately found this too stressful and cut back her hours again in May 2011. She is now working a four-day week rather than a five-day week. Special damages, including an element of past loss of earnings, are agreed at €7,000 and no claim is made for future loss of earnings.

50. It is natural that, on witnessing the incident, the plaintiff would have feared for her own life. It is common sense to conclude that the plaintiff’s terror would have been substantially increased by having to make a telephone call to the Gardaí and by her phone ringing aloud on several occasions, which the plaintiff feared the assailant would hear. The plaintiff’s experience was far worse than it would otherwise have been, had she been able to silently and secretly press an alarm and know that help was coming. I accept the evidence of the plaintiff and Dr. Doyle in this regard. It is true that the incident lasted only a very short time and that the Gardaí arrived on the scene within five minutes. Notwithstanding, it is not disputed that the plaintiff developed PTSD as a result of the incident. The brevity of the incident does not dictate the severity of the psychiatric response. In my view that would be an entirely false equation. Dr. Doyle’s uncontradicted evidence was that the plaintiff’s psychiatric injury has been avoidably aggravated as a direct result of her inability to safely summon assistance. In these circumstances, I find that the plaintiff’s injury was so aggravated.

Conclusions on breach of duty and breach of statutory duty

51. The defendant’s H & S protocols identify, inter alia, the risk of robbery and security incidents. It is common case that, having identified these potential hazards, the procedures, which were designed to protect the employee from such hazards, included furnishing portable panic alarms. It cannot be sufficient simply to identify potential hazards and devise procedures and precautions to guard against them. It is necessary also to ensure that those procedures and precautions are given effect through implementation and training as appropriate. It is common case that the defendant devised an “ excellent” system/protocol. However, it then failed to implement the procedures and measures designed to protect the plaintiff. Thus, as is apparent from my review of the factual evidence at paragraphs 22 to 37 above, a panic alarm was simply not available to the plaintiff when this incident occurred. This is a breach of the defendant’s common law and statutory duty of care to the plaintiff. I find that the plaintiff reasonably believed that portable panic alarms were for till staff only, and therefore responsibility for her lack of access to a panic alarm lies with the defendant and not with the plaintiff. Accordingly, subject of course to issues of causation and foreseeability, and to considerations of countervailing public policy, it would seem just and reasonable that the plaintiff should be entitled to recover in respect of this breach.

52. The defendant placed considerable emphasis on the fact that the plaintiff did not complain in the immediate aftermath of the incident, nor at any time until recently, that her injuries had been exacerbated as a result of the absence of a panic alarm. I do not believe this fact to be determinative. Whether or not the absence of a panic alarm caused or contributed to the plaintiff’s injuries is an objective matter to be determined by the court on the basis of the medical evidence.

53. Equally, I should say that I lay no emphasis upon the fact that, when the plaintiff returned to work at the defendant’s Dock Road premises five or six months after the incident, she was immediately furnished with a panic alarm. I am in agreement with the view expressed by Noonan J. in Nemeth that a subsequent change in protocol or practice cannot be construed as an admission of liability.

Conclusions on causation of plaintiffs injuries

54. The defendant acknowledges – and could not but acknowledge – its duty to provide panic alarms to its staff, but contends that is not the end of the matter because the plaintiff must satisfy the court that its failure to do so caused the plaintiff to suffer the psychological injuries for which she is seeking to be compensated. The defendant argues that, as it is accepted that the plaintiff would have suffered psychological injuries merely by witnessing the murder, it cannot be said that any default on its behalf caused the plaintiff to suffer injury. This, however, is to misunderstand the plaintiff’s case. The plaintiff is not seeking compensation for the totality of the PTSD which she suffered as a result of witnessing the murder. Rather, the plaintiff is seeking recovery only for such aggravation of the PTSD as is attributable to the additional sense of isolation, vulnerability and panic which she experienced as a result of her inability to safely summon assistance.

55. This same nuance also answers the defendant’s contention that the murder was an unforeseeable event for which the defendant cannot be held liable. Unforeseeability would only be an answer to the plaintiff’s case if she was claiming compensation for the totality of her PTSD. It is correct to say that the defendant, as a reasonable and prudent employer, could not have anticipated, or taken any particular precautions to prevent, the murder. However it is incorrect to say that the defendant, having anticipated criminality and devised measures to guard against same, would not anticipate that failure to implement those measures could be a cause of harm. I do not accept that merely because the incident was at a far higher level of violence than expected, the defendant can successfully argue that the systems devised to protect employees including the plaintiff are irrelevant.

56. To my mind, this nuance also distinguishes the present case from some of those relied upon by the defendant in these proceedings. In this respect, the defendant placed significant emphasis on Nuala Matthews v. Irish Society for Autism and the National Autistic Association [1997] IEHC 64. In that case, the plaintiff, who was carrying an excessively heavy and awkward load of material along a public footpath, suffered injury when an unidentified passing pedestrian collided with her, causing her to fall. Laffoy J. held that the accident was entirely attributable to the collision; that the fact that the plaintiff was carrying a heavy and awkward load did not contribute to her fall; and that the accident would have happened in the same way and with the same consequences if the plaintiff had not been encumbered by her load. The same cannot be said in the present case. Were it not for the defendants’ breach of duty in failing to provide the plaintiff with a panic alarm, the events would have enfolded in a different way from the plaintiff’s perspective and as a consequence, her injury would have been appreciably less.

57. Both the plaintiff and the defendant referred the court to Patrick Breslin v. Noel Corcoran and the Motor Insurer Bureau of Ireland [2003] IESC 23. In Breslin, a driver, who had left his motor vehicle unlocked with the keys in the ignition, was held not to be liable for the actions of an unknown person who stole the car, drove negligently and collided with the plaintiff. I agree with both counsel that the present circumstances are distinguishable from Breslin and note that the defendant in this case did not rely upon the doctrine of novus actus interveniens. It is accepted that the assassin’s actions were unforeseeable. However, the plaintiff’s cause of action is based on circumstances within the control of the defendant; the implementation by the defendant of its H & S protocols.

58. Likewise, the case of Brendan O’Neill v. Dunnes Stores [2010] IESC 53, is distinguishable as it concerned liability for injuries suffered by a “rescuer”, who had intervened to assist a security guard who was trying to apprehend a shoplifter. The question was whether it was necessary that the precise nature of the attack on the plaintiff might have been foreseen. The Supreme Court decided that it was enough that the type of damage, in that case, physical injury caused by an attempt to restrain a wrongdoer, was readily foreseeable as a consequence of the employer failing to have an effective method of communication in a case of emergency, thereby avoiding the necessity for intervention by a member of the public. Like Breslin, however, O’Neill concerned the attempted imposition of liability on the defendant for the act of the third-party wrongdoer. This is not in issue in this case as, at risk of repetition, the plaintiff is not seeking to hold the defendant liable for the actions of Mr. Coughlan.

59. The evidence in this case is to the effect that the plaintiff’s ability to cope, both on a practical and psychological level with the unprecedented situation with which she was presented, was severely compromised because she could not safely summon assistance. As a result, she experienced an ordeal which was significantly exacerbated.

60. Accordingly, I find that, whilst the assassination was, of course, not foreseeable, general criminality was. Once this general mischief was foreseeable, the unforeseeability of the particular form of mischief which occurred in this case is not determinative.

Conclusions on quantum

61. It is common case that the plaintiff would have developed PTSD in any event. However, the medical evidence is that, had the plaintiff been supplied with a panic alarm, the injury would have been less serious. It is now over ten years since the incident, and the plaintiff continues to experience residual symptoms, albeit not currently meeting the criteria for a formal PTSD diagnosis. She is agoraphobic and unable to go to the shops on her own. The plaintiff is still a young woman and this is a significant limitation on her life. I also accept that the plaintiff will be vulnerable to relapse in the future.

62. The plaintiff underwent reasonably extensive treatment, attending a psychiatrist, psychotherapist, and counselling services and taking psychotropic medications. However, it does not appear that the plaintiff has received any treatment in the last several years. It is therefore difficult to determine the extent to which the plaintiff’s present and long-term sequelae are attributable to actionable aggravation to the original PTSD injury. The cessation of treatment may also have contributed to these sequelae.

63. In assessing compensation I note that this case predates the application of the Judicial Council Personal Injuries Guidelines. If the plaintiff were to be compensated for the “total” psychiatric injury which she has suffered to date and will suffer into the future, then I would assess general damages at the level of €100,000, being €30,000 for the first year to eighteen months, €55,000 for the intervening ten years or so, and €15,000 into the future. As matters stand, I find that the plaintiff’s PTSD was aggravated as a result of the defendant’s negligence for the first year to eighteen months post incident. For that period, I would assess the aggravation to the plaintiff’s PTSD at €10,000. Over the intervening decade, I would assess the aggravation to the plaintiff’s PTSD at €20,000. For the future, I think it is hard to say that any such symptoms as the plaintiff may experience are necessarily due to the actionable aggravation of the PTSD and I do not therefore award any sum in respect of future general damages. Overall, therefore, it seems to me that a sum of €30,000 general damages is reasonable. To that figure I add €3,000 special damages, making a total award of €33,000.

Closing observations

64. It is important to note that I make no finding that all members of staff in every service station, still less in every retail premises, ought to have access to a portable alarm. The expert evidence was that other premises might meet the risk of robbery or security incidents in a myriad of other ways. Mr. Stairs was very careful to say that “one cannot broad stroke the defendant’s [H & S protocols] across the entire retail sector or even across service stations in general”. Likewise, I make no finding that, in another case in which a security incident may occur, an employee will recover damages merely because they can point to specific measures in their employer’s health and safety statements that were not implemented. In this case, however, there is a strong connection between the particular non-implementation of which the plaintiff complains and the aggravation of the injury suffered. This case therefore turns on its own specific facts.

65. As this judgment is being delivered electronically, the parties will have two weeks within which to file brief written submissions in relation to the terms of the final order, on costs and on any other matters that may arise.

Result: Plaintiff awarded damages.

Dunne v Creggy & Ors

(Approved) [2021] IEHC 341 (07 May 2021)

JUDGMENT delivered on 7th May 2021 by Mr. Justice Tony O’Connor

1. On the 26th January 2018 the plaintiff then aged 60 was driving her car when it was hit violently and in such a way that it spun around and ended up close to a wall. It was a frightening experience for which the defendants accept liability. The Court is asked to assess the general damages to be recovered by the plaintiff.

Removal to Mullingar

2. The ambulance crew took the plaintiff and her husband who was a passenger to Mullingar Hospital.

Left hand

3. The plaintiff’s principal pain initially was in her left hand, in fact the second, third and fifth left hand fingers were broken; more accurately oblique fractures of her second, third and fifth metacarpal bones were diagnosed. They were wrapped in plaster of paris at Mullingar Hospital and subsequently treated conservatively. The plaintiff attended the Mater Hospital on her return home. The plaintiff according to Mr. Macey, consultant orthopaedic surgeon, in his report of the 25th March 2019 had differences between grip strength and finger alignment when compared with her right hand. After displaying photographs, he commented upon the swollen appearance of the distal interphalangeal joint of the right little finger and the recession of the left fifth metacarpal head which suggests shortening of this fracture. Having viewed the plaintiff’s hand, the Court describes the past and present condition as mild to moderate. Physiotherapy helped the plaintiff particularly in regard to these complaints. Since 2020 the plaintiff merely has some difficulty with zips, jars and picking things up with her left hand.

Sternum left shoulder

4. The safety belt and the sudden impact caused a fracture of the plaintiff’s sternum and bruising in the upper right hemi thorax. The plaintiff struggled to get up the stairs for a few weeks. She and her injured husband slept downstairs during that time. She thinks that she slept on a couch in their sitting room for three or four weeks while her husband slept on a makeshift bed. Her sleep pattern was severely impacted. Mr. Macey’s supplementary report of the 15th January 2020 noted that shoulder movement was then satisfactory on both sides with some residual restriction in internal rotation on the left. Again, these mild to moderate injuries have largely resolved with some residual restrictions.

Low back pain

5. The low back pain mentioned by the plaintiff was not commented upon by Mr. Macey whereas Mr. Gleeson in his report following his examination on the 14th January merely said that the plaintiff by then no longer had any difficulty with her chest or lower back. So the plaintiff’s low back pain, however it was caused, was rather minimal.

Psychological

6. The plaintiff understandably lost confidence in driving and more particularly when navigating in various circumstances. She used to drive herself and her husband up and down the country. The court found the plaintiff to be candid about the effects on her driving and whenever she is reminded of the terror and trauma that she suffered through as a result of the defendants’ negligence. The plaintiff has benefitted from cognitive behaviour therapy ( “CBT”) which she started thanks to the advice of her own general practitioner. The plaintiff was referred by her solicitor to Dr. Mary Maguire for an opinion in the context of this litigation. Dr. Maguire reported as of the 23rd January 2021 that the plaintiff remained stressed by dermatitis which flared up after the accident. Dr. Maguire opines that the acute symptoms of post – traumatic stress disorder have reduced in intensity. The lack of sleep, crying and nightmares endured by the plaintiff for the initial few months have decreased if not evaporated largely at this stage. The plaintiff does not like taking tablets.

The trial

7. The plaintiff mentioned her anger at what happened and is certainly aggrieved about the suffering (physical and psychological), which she has had to endure. She maintained her composure throughout the hearing, up to the end of the cross – examination by Mr. Walsh for the defendants. The plaintiff’s summary was that: –

“I lost the strength of my arm and my neck and when I’m driving I’m terrified and how come I’m left like that? So I’m not lying about nothing. Do you think I wanted this accident to happen? I wouldn’t have wished it for anyone. I was in the car, not the doctors”.

8. This partial outburst was in reply to the question posed by Mr. Walsh based upon Professor Thakore’s report of the 1st April 2021 which opined that the plaintiff has not suffered a recognisable psychiatric injury. In fact, there is little contention between the reporting experts about the good prospects of a full recovery. In this regard the Court notes the opinion and prognosis of Dr. Mary Lynch dated 20 November 2020 and the last sentence of Dr. McGuire’s report of 23 January 2021.

Conclusion

9. In setting out the above summary, the Court has regard to the judgment of Irvine J. (as she then was) in Nolan v. Wirenski 25th February 2016 [2016] IECA 56. The questions posed by Irvine J. inform the summary which is set out above.

10. Counsel made submissions having regard to the book of quantum. Page 45 of the book of quantum for hand fractures and page 73 for the chest were referenced by counsel for the defendants. Counsel for the plaintiff agreed that damages for chest bone injury fall within the band of €13,700 to €45,900 while they referenced the band of €22,000 to €60,900 for a shoulder arm complaint. The court does not find that band to be relevant. Both sets of Counsel are agreed that there is no guided band for the psychological complaints. Having regard to the facts that it is now 40 months since the trauma, the plaintiff has physically recovered bar the continuing difficulties with her left fingers and that CBT has helped the plaintiff considerably, the Court awards €36,000 for general damages to date. The future is brighter for the Plaintiff. The Court recognises the psychological dent and undermining of the plaintiff whether one describes it as continuing driver anxiety (Professor Thakore), reduced symptoms of PTSD (Dr. McGuire) or no recognisable psychiatric as opposed to psychological injury (Professor. Thakore). The plaintiff will also have some residual left hand symptoms for the rest of her life. The appropriate award given the exercise of proportionality required in the context of the maximum general damages for personal injuries which may be awarded to a severely disabled person for past and future pain and suffering is €20,000 for the future. That totals with agreed special damages to a sum of €56,737.00 which is ordered to be paid by the defendants to the plaintiff.

Solicitors for the plaintiff: Tracey Solicitors

Solicitors for the defendants: Shaffrey & Company

Counsel for the plaintiff: Michael Byrne SC and Mark Byrne

Counsel for the defendants: Edward Walsh SC and John G O’Donnell

O’Mahoney v Tipperary County Council & Ors (HC)

[2021] IEHC 643 (18 June 2021)

JUDGMENT of Mr. Justice Twomey delivered on the 18th day of June, 2021

SUMMARY

1. In 2008, in the Supreme Court case of O’Keeffe v. Hickey and Ors., [2009] 2 IR 302 Hardiman J. referenced the practice where parents take claims for personal injuries suffered by their children while playing in a playground. He was particularly critical of the view that every injury is compensatable and the eternal quest for a ‘deep pocket’ (such as a business, an insurance company, a local authority etc.) which could be made liable for an accidental injury. He expressed concern, at that time, that such claims were occurring at an ever-increasing pace and referenced the negative effects that they were having on the freedom of children to play. He quoted with approval the prediction that ‘ if parents continued to sue for playground accidents, children would not be allowed to run or play in school yards.’ (at pp. 321-322)

2. Hardiman J. might be more than a little disappointed to learn that not only had claims by parents for injuries to their children in playgrounds continued apace since 2008, but that now, some thirteen years later, there is a new type of claim regarding playgrounds, namely a claim for injuries to adults when they are using swings, not in a hotel, bar or gym, but rather in a children’s playground. This and the other issues which arise in this case can be summarised as follows:

(i) Adult injured while on a child’s swing

3. This case concerns a claim by two adults who were injured when using a swing, not in an adult location, but in a children’s playground. It considers the ‘ chilling effect’ of claims such as these on the provision of play or adventure facilities for children (and indeed the provision of goods/services generally to all citizens) and the application of what is ‘ universally known by reasonable adults of normal intelligence’, in other words, common sense, (as highlighted by the Court of Appeal in Cekanova v. Dunnes Stores [2021] IECA 12) to such a claim.

(ii) A claim that €54,700 is fair compensation for a ‘minor’ injury

4. This case also considers a claim made by the plaintiff through her lawyer that an injury which her counsel categorised as a ‘ minor’ ankle injury that kept someone out of work for just 10 weeks would nonetheless merit damages for ‘pain and suffering’ (in addition to any out of pocket expenses) of up to €54,700 under the non-binding Book of Quantum (assuming, of course, negligence was established), even though:

• the binding case law from the Supreme Court (in Simpson v. Governor of Mountjoy [2021] IESC 81) regarded the sum of €7,500 as appropriate compensation for a person who was wrongfully required to slop out for 7.5 months in a prison, and,

• it would take a person on the average wage in the State over 1.5 years to earn €54,700 (applying the binding principles adopted by the Supreme Court in McDonagh v. Sunday Newspapers [2018] 2 I.R. 79 for assessing the reasonableness of damages, i.e. ‘how long and how hard an individual would have to work to earn’ the proposed sum), and

• the amount of damages for the ‘pain and suffering’ caused by a minor injury to an ankle is required to be proportionate to the pain and suffering cap of €500,000 for quadriplegia/catastrophic injuries (according to the binding principles set down by the Court of Appeal in Nolan v. Wirenski [2016] IECA 56), yet a sum of €54,700 is almost 1/9th of the cap, which cannot in this Court’s view be regarded as proportionate in light of the huge difference between the pain and suffering involved in quadriplegia/catastrophic injuries on the one hand and the pain and suffering involved in a minor ankle injury on the other.

For this reason, as noted below, when the foregoing principles for the assessment of damages set down by the Supreme Court and the Court of Appeal (which, unlike the Book of Quantum, are binding on this Court) are applied, this Court concludes that a more appropriate sum for fair compensation for a minor ankle injury would be between €5,000 and €7,500, thus illustrating that in some cases the non-binding Book of Quantum will be of little or no assistance to a court in calculating damages. Accordingly, this claim, if it was to be brought at all, should have been brought in the District Court.

(iii) Minor injury claims instituted in the High Court rather than the District Court

5. This case also illustrates that there may be financial reasons why some claims, for minor and moderate injuries taken by impecunious plaintiffs may be brought in the High Court, rather than the District Court or Circuit Court. It is important to emphasise that it is not being suggested that this is what happened in this case and there is no suggestion that the plaintiffs’ lawyers did not bona fide believe that their client was genuinely entitled to compensation in excess of €60,000 (the floor for High Court damages), even though it is this Court’s view that the appropriate compensation for her injury was €5,000 – €7,500. Indeed, it is clear that the plaintiffs’ lawyers were making the best case possible for them.

6. Rather the point that is being made is that it is clear that issuing proceedings for minor injuries in the High Court, rather than the District Court, by an impecunious plaintiff may amount to greater leverage upon the defendant to settle that claim. This is because, where a plaintiff is not in a position to pay legal costs, if he or she loses, the Supreme Court in Farrell v. Bank of Ireland [2012] IESC 42 observed that litigating may be part of an ‘unfair tactic little short, at least in some cases, of blackmail’ to force a defendant to ‘buy off the case’, even if the claim is ‘ unwholly unmeritorious’. If one accepts therefore the Supreme Court’s conclusion that an impecunious plaintiff may, in some cases, be using his impecuniosity as leverage, it seems clear that instituting a minor claim in the High Court increases that leverage. This is for the simple reason that a defendant will make a much greater saving on legal costs (which he would not recover from an impecunious plaintiff) by settling a High Court action, than settling a District or Circuit Court action.

7. Accordingly, logic would suggest that the amount which a defendant will pay to settle a claim is much greater in the High Court, than in the District Court, since the saving on legal costs is so much greater. For example, in the case of Condon v. Health Service Executive, Szwarc v. Hanford Commercial Ltd. T/A Maldron Hotel Waterford [2021] IEHC 474, submissions were made to this Court that the price for buying off that High Court personal injury case, which was described as a nuisance claim, was €20,000, with the plaintiff’s lawyers getting €10,000 and the plaintiff getting €10,000.

8. When one considers that legal costs in the District Court are likely to be in the hundreds of euro, one can see the much greater ‘nuisance value’ of an unmeritorious claim for a ‘minor injury’ which is brought by an impecunious plaintiff in the High Court, than the same claim brought in the District Court. This is because the defendant will ‘only’ save say €500 – €1000 in legal costs by settling a District Court claim for minor injury, but could save €50,000 – €100,000 in legal costs by settling the same claim for damages for minor injury, if brought in the High Court.

9. Thus, for an impecunious plaintiff with an unmeritorious claim for say a minor ankle injury who hopes to get a settlement, instituting the proceedings in the High Court, rather than the District Court, would appear to increase the ‘nuisance value’ of the claim by circa €10,000 and thus make financial sense from his perspective (since as an impecunious plaintiff he will be unlikely to be paying the legal costs of the defendant, if he loses).

10. It is important to note that there is currently no legal bar on claims for minor injuries being taken in the High Court. It is a matter for the plaintiff to decide in which court he wishes to take his claim for a minor injury. For a plaintiff, the choice of the High Court for a minor injury will in many cases be of little import because, as noted below, 99% of cases settle (e.g. with the defendant buying off the cost of having to fight a High Court claim), and this is particularly the case, if the plaintiff is impecunious as he will not be paying the expensive High Court costs, even if the he loses. However, for the defendant, who is subjected to a claim for a minor personal injury in the High Court rather than the District Court, this choice is of huge importance, since in order to defend a claim for minor injury in the District Court, it will cost him €500-€1,000 in legal fees, a fraction of the €50,000-€100,000 which it will cost him to defend the exact same claim for a minor injury in the High Court.

11. It is important to emphasise of course that even though the lawyers’ fees will be greater in the High Court, than in the District Court, it is not being suggested that the lawyers in this case instituted the proceedings in the High Court for anything other than bona fide reasons. In any case, the decision to institute the proceedings, and in which jurisdiction they are instituted, is the decision of the client and lawyers act on the instructions of their clients.

Causing delays for plaintiffs with serious and catastrophic injuries?

12. The taking of a minor injury claim in the High Court, rather than the District or Circuit Court is relevant because there is a well-publicised delay in having cases heard in the High Court at present. As a result, plaintiffs who have serious and catastrophic injuries, and whose cases should unquestionably be dealt with by the High Court, are being delayed in receiving their urgently-needed compensation. To the extent that ‘minor’ injury cases are instituted in the High Court, this is a matter of general concern because it would be contributing to that delay for those plaintiffs with life threatening and life altering injuries.

13. However, the incentive to take unmeritorious claims for minor injuries in the High Court, rather than the District Court or Circuit Court, is likely to continue in the absence of objective criteria for the classification of those injury claims which are permitted to be brought in the District or Circuit Court (so it is not simply at the choice of a plaintiff) or, failing that, a financial disincentive for impecunious plaintiffs (who are unlikely to be paying the defendant’s legal costs if they lose and so for whom the choice of the High Court, with its considerable legal costs, is irrelevant), while of course at all times recognising a plaintiff’s right of access to the courts.

14. Of course, in referencing the right of a plaintiff to access the courts, it is important to note that the Supreme Court has pointed out that the more appropriate characterisation of this litigation right is not merely a right of access of a plaintiff to the courts, but rather the right of plaintiffs and defendants ‘ to have litigation fairly conducted’ ( per Farrell v. Bank of Ireland [2012] IESC 42 at para. 4.6). In this regard, having litigation fairly conducted for a plaintiff and defendant is arguably having a level playing field between defendants and plaintiffs regarding legal costs, so that as regards legal costs, it is not ‘lose-lose’ for a defendant sued by an impecunious plaintiff, yet ‘no lose’ for that plaintiff (as apparently in this case), or at least that there is some sufficient financial disincentive to a plaintiff in taking unsuccessful litigation.

BACKGROUND

15. This was a hearing involving a claim by two adults, for personal injuries which were sustained on two separate occasions when using the same swing in the same community playground. The swing in question is designed for children and is located in a children’s playground in Newcastle, Co Tipperary. It is relevant to note that there was a sign on the fence of the playground which provides that:

“This playground is for the use of all children 12 years and under.”

16. The swing is a basket swing, which is commonly to be found in modern playgrounds. It is also referred to as a bird’s nest swing, as a child can sit or lie in the centre of the swing, which is circular in shape with a diameter of 1.25 metres, with a rigid rim circumference and with lattice rope or webbing in the centre of the circular basket, which operates as the swing’s sitting or lying area.

17. Evidence was provided that the bird’s nest swing does not swing up or down to a high degree like the older traditional swings, because of the weight of the basket. Instead it sways back and forth relatively close to the ground. The plaintiffs’ engineer provided evidence that this swing was designed for children from age 1 up to adolescence.

18. To their credit, the residents of Newcastle, Co. Tipperary raised funding for the building of the playground, in which the swing is located, in order to provide what was recognised by the plaintiffs as an impressive amenity for the children of the locality. It is the local authority, Tipperary County Council (the “Local Authority”), which has responsibility for the maintenance of the playground and so it is being sued in these proceedings and it has taken over the defence of the action on behalf of the second and third named defendants.

19. It is not claimed by the two plaintiffs that the swing is not a child’s swing. Nor do they claim that it is an adult’s swing. However, in March 2016, one plaintiff decided to join the child under her care on the swing, and the other plaintiff decided to do the same thing with the child under her care in July 2016. The plaintiffs do not claim that they did so for their own enjoyment or the enjoyment of the children, but rather they both claim that they got onto the swing as they felt it was safer for the children, even though the swing is designed for use by children on their own and, as mentioned above, the swing is not designed to behave in the same way as a traditional swing and so does not swing up in the air to a high degree, but sways from side to side.

20. As regards the details of the two separate accidents, on 30th March, 2016, the plaintiff in the first set of proceedings (“Ms. O’Mahoney”) decided to accompany a boy of 2 years and 10 months of age, who she was childminding at the time, on the swing. Ms. O’Mahoney caught her right ankle on the underside of the swing as she attempted to get off the swing and she suffered an undisplaced fracture to her ankle as a result. She was in a cast for 6 weeks and then in a boot for 4 weeks and within 2.5 months she was back working as a carer.

21. An almost identical accident happened to a different woman, the plaintiff in the second set of proceedings, on 13th July, 2016, (“Ms. Kennedy”) when she decided to accompany her cousin, a boy of 16 months at the time, onto the swing. Ms. Kennedy confirmed in her evidence that Ms. O’Mahoney and herself know each other as acquaintances. Ms. Kennedy’s injury occurred when she had her young cousin in her arms when she was attempting to get off the swing, when she caught her right ankle in the underside of the swing. She suffered an undisplaced fracture of her ankle and some ligament damage. She was in a cast for four weeks and was out of work for eight weeks and had some ligament damage for a short time thereafter for which she wore an ankle support.

22. It was possible for Ms. O’Mahoney’s case and Ms. Kennedy’s case to be heard together, as they both sought advice from the same solicitor regarding their almost identical claims for personal injuries and he instructed the same expert engineer and counsel. Hence judgment is being delivered in both cases at the same time.

ANALYSIS

23. Both plaintiffs seek compensation at the High Court level (i.e. more than €60,000) from the local authority on the grounds that it set the height of the swing at a level that was too low and as a result of this alleged negligence/breach of duty, the local authority created an entrapment risk. As a result of this negligence, the plaintiffs claim that they caught their ankles under the swing when trying to get off and thereby suffered injuries. It is the plaintiffs’ case that they were recreational users under s. 4(1) of the Occupiers Liability Act, 1995 when sitting on the swing, on the basis that they were entitled to use the swing for the purpose of accompanying the children in their respective care, and that therefore they were both entitled to rely on the swing being kept in a safe condition for their use.

24. In essence therefore, the plaintiffs are claiming that the swing, which was designed for use by children under 12, was hung too low to the ground for use by them. In this regard, they are both adults of similar heights, 5 ft 5 inches in Ms. Kennedy’s case and 5ft 6 inches in Ms. O’Mahoney’s case. They claim therefore, that the swing was not safe for their use and this caused their respective ankles to get caught between the swing and the ground when they were getting off the swing.

Appropriate clearance for the swing

25. There is a dispute between the engineers as to whether in fact the swing was set at too low a level in breach of the relevant British Standard applicable at the time (BS EN1176). The plaintiffs’ engineer claims that the clearance of 350 mm (set down in that British Standard – ‘BS’) should be measured from the lowest point of the basket (in the centre of the ring) to the ground, while the defendant’s engineer claims that it should be measured from the hard edge of the circular rim of the basket (which is higher from the ground).

26. The applicable BS at the time states that the clearance is to be measured

‘between the lowest part of the seat or platform and the playing surface when the swing is at rest’

which the plaintiffs claim supports their contention that it should be measured from the flexible netting in the centre of the swing.

27. However, the defendants’ engineer points out that this is not a traditional swing and that the most appropriate place to measure the clearance is from the hard rim, since this is the point from where one gets on or off. He supports this interpretation by referring to the revisions to the BS made in 2017 (EN 1176-2: 2017). While this revised BS did not apply at the relevant time of the accidents, he relies on this change to support his interpretation of how the original BS should be applied to non-traditional swings, such as the bird’s nest swing. This revised BS provides that the clearance (which had increased to 400mm in the revised BS) is to be taken from the ‘underside of the rigid part of the seat in its most onerous position’.

28. While the clearance from the underside of the rigid part of the seat of the bird’s nest, namely the hard rim circumference of the bird’s nest swing, exceeded the minimum 350mm (and this was accepted by the plaintiff’s engineer), the clearance from the interior flexible netting did not do so, as it was 187 mm, which is almost 8 inches less than the clearance required under the BS.

29. It follows that the plaintiffs’ engineer claims that the swing should have been raised by approximately 8 inches and this would have avoided the entrapment. The defendants’ engineer disagrees and claims that the swing was set at the right height and in compliance with the relevant BS, since the clearance must be measured from the hard rim i.e. the rigid part of the seat.

30. It seems to this Court that there is logic in the interpretation proposed by the defendants’ engineer, such that the appropriate point from which to measure the clearance is from the bottom of the rigid part of the swing, for the simple reason that this is the point at which a child exits the swing. If the clearance is measured from this point, then the swing is in compliance with the BS standard. That is the end of the personal injuries claim, since there is no breach of duty/negligence on the part of the Local Authority, as it complied with the BS. However, even if this Court is wrong in that regard, for the reasons set out below, it finds that, in any case, the Local Authority has not breached any duty, statutory or otherwise, to the plaintiffs.

Common sense suggests that an adult should not use a child’s swing

31. Ms. O’Mahoney accepted in evidence that her common sense would have told her not to use the swing if she were on her own, since it was a child’s swing. This is just common sense and this Court did not need Ms. O’Mahoney to make this admission, for it to reach that conclusion. However, Ms. O’Mahoney maintained that she got into the swing with the child under her care, as she felt that he might get injured otherwise.

32. Ms. Kennedy made a similar claim regarding her reason for getting into the swing with the child under her care.

33. However, in this regard it is relevant to note that there was no evidence of this swing being an injury risk for children to use on their own, without an adult. Indeed, quite the contrary assumption might be taken (i.e. that it was safe for use by children alone) from the notice on the playground which makes it clear that ‘ the playground’, which must mean the equipment in the playground (since it would be normal for adults to accompany children into the playground itself) is for the use of children. The corollary of this is, of course, that the equipment, and thus the swings, are not for the use of adults.

34. Ms. O’Mahoney accepted that she was aware of the contents of the Notice regarding the playground being for the use by children of 12 and under. However, Ms. Kennedy, despite using the playground regularly for many years, claimed that she had not seen the Notice. On the balance of probabilities however, in view of the number of times she used the playground, this Court finds that Ms. Kennedy would have been aware of its contents.

35. Yet, even if Ms Kennedy were not aware of the notice, common sense would tell any adult, including Ms. Kennedy, that she should not be using a swing which is designed for use by children. Common sense is an important, but often over-looked, factor in determining liability for accident claims, since as noted by Keane J. in Turner v. The Curragh Racecourse [2020] IEHC 76 at para. 55 (when quoting from p. 57 of the judgment of Geoghegan J. in Weir-Rodgers v. S.F. Trust Ltd. [2005] 1 I.R. 47):

“the common law is just the formal statement of the results and conclusions of the common sense of mankind.” (per Lord M’Laren in Stevenson v. Corporation of Glasgow 1908, SC 1034 at p. 1039)

36. A good example of the application of common sense to an accident claimis provided by the Court of Appeal in Cekanova v. Dunnes Stores [2021] IECA 12 where a claim, for personal injuries by a plaintiff, who made tea in a glass jug which shattered, was dismissed on the grounds that:

“It is universally known by reasonable adults of normal intelligence that boiling or very hot water has the potential to shatter an ordinary glass vessel.” (at para. 31)

37. Similarly, in this case, ‘reasonable adults of normal intelligence’ know, or should know, not to use swings designed for children. The corollary of this is that if adults get injured because they use a swing, designed for children, which they claim is too low to the ground for them (and particularly where no evidence was produced of children being injured because it was too low to the ground), those adults do not have a right to damages, for any injuries suffered, against the local authority which is managing the playground (on the grounds of any alleged breach of duty by it).

38. Furthermore, there is a duty on individuals to take reasonable care for their own safety ( Lavin v. Dublin Airport Authority plc [2016] IECA 268 at para. 52) and the decision by the plaintiffs to use equipment which they knew, or should have known, was designed for use by children under 12, amounts to a failure by them to take reasonable care for their own safety. Accordingly, it is not a breach of any duty on the part of the local authority not to raise the swing so as to accommodate adults.

39. If the plaintiffs decide to use a child’s swing at their own risk, they should take extra care to plant their feet, before attempting to get off the swing and in this regard, engineering evidence on behalf of the defendant was provided that the accident would have been avoided by both plaintiffs, if this had been done.

40. Indeed, in the case of Ms. Kennedy, not only did she not take extra care when getting off a child’s swing, she actually appears to have taken even less care than Ms. O’Mahoney, since Ms. Kennedy attempted to get off a moving swing while holding a child in her arms – this apparent carelessness seems to fly in the face of Ms. Kennedy’s claim that her reason for getting on the swing in the first place was to protect the safety of the child.

The social effect on children’s playgrounds of a finding of negligence

41. Although not determinative of this Court’s finding, it is nonetheless relevant to note that engineering evidence was provided that if the swing was raised by approximately 8 inches, as the plaintiffs claim should have happened, this would, firstly, make the swing much harder to access for small children.

42. Secondly, making the swing higher by 8 inches in order to make it safer for adults (or indeed in order to reduce the chances of personal injury claims by adults) would have the direct effect of making the swing scarier for young children, since engineering evidence was provided that the swing is designed to sway over the ground as close as possible to the ground to make it less scary for young children to use.

43. Thirdly, this engineering evidence was also to the effect that the increase in height would make the swing less safe for young children when, from time to time children, as would be expected, fall from the swing on to the ground, since the ground would be a further 8 inches away.

44. Yet the purpose of these changes sought by the plaintiffs to a child’s swing, to the detriment of the children who use it, would be to prevent it becoming an entrapment risk for persons such as the plaintiffs, i.e. adults, for whom the swing was not designed and where no evidence had been provided of any entrapment risk to children using the swing.

The ‘chilling effect’ of an award of damages against a provider of play activities

45. Similarly, while also not determinative of this Court’s finding, it is relevant to note that individual claims for personal injuries such as in this case, can, in certain circumstances, have a wider effect and thus a considerable social cost on the freedom of citizens in this State. This was the view of Hardiman J. in O’Keeffe v. Hickey [2009] 2 IR 302 where he was critical of the view that

“it is widely believed that every misfortune must be compensatable.” (at p. 320)

46. He observed that the notion that unfortunate accidents, such as this one, must be compensatable, can have a ‘ chilling effect’ on public authorities, such as the local authority in this case (or indeed privately insured businesses providing play areas or play activities for children). At p. 321 Hardiman was also critical of the:

“eternal quest for a “deep pocket” which can be made liable [for accidents] not merely proceeds apace, but at an ever increasing pace.”

47. Hardiman J.’s comments in that case seems particularly apposite for the facts of this case, since Hardiman J. went on to note at pp. 321 – 322 that:

“And on the 22nd October, 2008, it is reported in The Irish Times that a Circuit Court Judge in Cork predicted that if parents continued to sue for playground accidents, children would not be allowed to run or play in school yards.”

48. In the 13 years since that judgment, matters are continuing to proceed at ‘ an ever increasing pace’ as regards the search for compensation from deep pockets for personal injuries, such that not only are parents suing for playground incidents involving injuries to their children, but we now have reached the stage where adults are suing for injuries to themselves where they use playground equipment intended for use by children, and the level of damages sought are such that the claims are not being made in the Circuit Court, but for the greater level of damages available in the High Court.

49. It is of course human nature, as observed by Hardiman J., to have sympathy for plaintiffs, such as Ms. Kennedy and Ms. O’Mahoney who fractured their ankles, as there is a ‘a human tendency to wish that that person should be compensated’ (at p. 319). However, he pointed out that a finding of liability ‘is not a light thing and has an effect quite separate from its consequences in damages’ (at p. 317) since it can have a ‘chilling effect’ on the State and private initiatives. Although not determinative in this case, it remains to be observed that claims in the High Court by adults who use children’s swings in playgrounds, if they were successful, could well lead to this ‘ chilling effect’ on the provision by public authorities of playgrounds for children (or indeed adventure centres, crêches and other services for all citizens). The consequences, quite separate from an award of damages, in this instance might be an interference with the liberty of children to play in playgrounds. In this regard, it was noted by Lord Hobhouse in Tomlinson v. Congleton Borough Council [2004] 1 AC 46 at para. 81:

“The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.”

The ‘chilling effect’ arises even where the claims are dismissed

50. Indeed, even where such claims are not successful, the very bringing of them can have a negative effect on the provision of such services, particularly where the plaintiffs, as appears to be the case here, may not have the financial resources to pay the defendant’s legal costs if they lose, since it appears that one and perhaps both defendants are unemployed. Accordingly, the local authority in such situations could end up ‘winning’ the case but losing financially, with the local authority, and therefore the taxpayer, having to pay the tens of thousands in legal costs of ‘winning’ a High Court personal injuries action (as noted in Dempsey v. Foran [2021] IEHC 39 at para. 73 et seq).

51. Unfortunately, for the children who use playgrounds, one way, for providers of playgrounds and other facilities or services for children, to avoid having to fight and win unmeritorious claims (at significant irrecoverable legal costs), is to cease providing such facilities in the first place. Hence there is the ‘ interference with the liberty of the citizen’ to which Lord Hobhouse referred, that the bringing of such claims can cause.

52. It is for this reason that this Court would observe that it is not only the case that a finding of liability for personal injuries can have a chilling effect on the provision of such facilities, it is also the case that where a provider of facilities (whether a local authority or a private entity) is subject to a claim from impecunious plaintiffs, even the dismissal of those claims will be at significant cost to that provider, since there is currently no effective way for the provider to recover legal costs for winning a claim against an impecunious plaintiff. In this respect, it is not a level playing field in such litigation, since as noted in Dempsey, it is a ‘ no lose’ scenario for an impecunious plaintiff as regards legal costs, but it is ‘ lose-lose’ for the defendant.

The ‘chilling effect’ arises even where the claims are settled

53. It is for this reason that claims, even those with little prospect of success are often settled by defendants, since it makes economic sense for a defendant to ‘ buy off’ a claim from an impecunious plaintiff, that it might regard as ‘blackmail’, to use the expressions adopted by the Supreme Court in Farrell v. Bank of Ireland [2012] IESC 42 at para. 4.12. Such claims appear to fall within the description of ‘nuisance claims’ used by counsel in Condon v. HSE [2021] IEHC 474. This court understands this term to mean cases which have a low probability of success (say 10% or less), but which make economic sense for the defendant to buy-off. This is particularly so if it will cost the defendant more to ‘win’ the case (since it is unlikely to recover its legal costs from an impecunious plaintiff) than it would cost it to settle the claim (for a lesser sum than its irrecoverable legal costs).

54. However, if (using the figures supplied to this Court in the Condon case), those claims are bought-off by a defendant on the basis of €10,000 for the plaintiff and €10,000 for his lawyers (a total of €20,000, which is not an insignificant sum of money for a provider of children’s play activities), such a settlement of nuisance claims (on top of the legal costs of say €10,000 payable to the their own lawyers) may nonetheless have a ‘chilling effect’ for that provider (notwithstanding that it is less than the €50,000 – €100,000 that it might cost to ‘win’ the action if it were to be heard in the High Court).

55. However, clearly this is a catch-22 situation, since while it costs more to fight nuisance claims than settle them, if a defendant settles ‘nuisance claims’, then the greater the incentive there is for plaintiffs to bring nuisance claims. Accordingly, it seems that so long as there is no financial disincentive for an impecunious plaintiff to bring nuisance claims, in the hope of receiving a settlement, such claims will continue to be brought, particularly if it makes economic sense for the defendant to buy them off, rather than litigate them.

56. In this regard, it is perhaps not surprising that such a high percentage of personal injuries cases settle. In the Report of the Personal Injuries Guidelines Committee (published by the Judicial Council in December 2020) it is stated that only about 0.54% of all personal injury claims (in the period 2017-2019) were actually heard in court (unlike say judicial review cases, where there is anecdotal evidence that only circa 10% of such claims are settled).

57. Based on the foregoing, it seems that the chilling effect, to which Hardiman J. referred, arises not just with (i) a finding of liability by a court against a provider of play/recreational activities (and indeed other services to adults/children which might give rise to claims), but also (ii) where claims against impecunious plaintiffs are dismissed and (iii) where claims are settled (since it does not make economic sense to spend more to ‘win’ litigation against an impecunious plaintiff than it costs to settle the claim).

While law is required to protect freedom, too much law can restrict freedom

58. It is also relevant to note that the claim in this case appears, to this Court at least, to be a new category of claim (or what might be termed new law), in that it seeks damages for personal injury to an adult from her use of a swing designed for children. While it is clear that law is necessary to protect the freedoms of citizens, e.g. the law making it a crime for one person to assault another, this case also illustrates that the law (or what might be termed ‘too much law’) can in some instances have the effect of restricting the freedom of citizens. This is because a finding of a breach of a duty to adults when using children’s swings may lead to those swings being raised to prevent future claims (as noted by the engineer for Tipperary County Council), thereby depriving younger children of the freedom and pleasure of using those swings. It is this type of restriction of freedom by what might be termed too much law that the American jurist, Professor Grant Gilmore, may have had in mind, when he stated that “[i]n Hell, there will be nothing but law….” (Grant Gilmore, The Ages of American Law (1977) at p. 111).

59. This case therefore illustrates the risks, to the freedom of all citizens of too much law, or of what Hardiman J. referred to as the ‘ eternal quest for a “ deep pocket”’. This is because it is important to bear in mind that what people sue for (whether the claim is won, settled or indeed lost – particularly if the winning local authority ends up footing the cost of ‘winning’ the claim) ends up defining the limits of freedom for all citizens. Ironically therefore, personal injury claims such as this one can have the greatest effect, not on the parties to the litigation, but rather people who are not party to the claim, nor even aware of its existence, but who may have their freedoms restricted by the chilling effect of such claims (i.e. other children who might have the birds’ nest swing altered or indeed taken away to prevent further claims).

60. The case of Tomlinson v. Congleton Borough Council has been previously referenced. It was concerned with a claim from an 18-year-old man who broke his neck and was paralysed for life when racing into a lake from a sandy beach and diving in at too sharp an angle onto the sandy bottom of the lake. If the claim was successful it might have given rise to a restriction on the freedom of other swimmers, not just in that lake, but in other lakes throughout England, so as to eliminate the risk of similar claims.

61. In considering whether the local authority should be liable, for allegedly not doing enough to protect against the swimming accident, the House of Lords considered not only the likelihood that someone might be injured and the seriousness of the injury which may occur, but they also considered the social value of the activity giving rise to the accident, observing that the Court of Appeal had made no reference to the social value of the activities in question. In Tomlinson, the social value was significant (namely the joy of swimming in a lake – similar to the joy of children playing in a playground) and that social value was such as to militate against a finding of liability (which liability was likely to lead to a restriction on other persons swimming in that lake).

62. It is clear from the various judgments of the House of Lords that it concluded that permitting Mr. Tomlinson’s claim would encourage the parks in England to restrict access to normal and healthy activities affecting the enjoyment of countless people. There was thus an important question of freedom at stake and it was held by the House of Lords to be unjust that the harmless recreation of others on the beaches should be prohibited in order to comply with what was an alleged legal duty to prevent accidents, on the part of the local authority.

63. The House of Lords held that this misguided perception of justice on the part of the English Court of Appeal in awarding damages can hurt the public generally ( albeit that it may have resulted from an understandable sympathy which a court might feel for the life-altering injuries suffered by Mr. Tomlinson). However, this desire, which Hardiman J. described as ‘a human tendency to wish that that person should be compensated’ (O’Keeffe v. Hickey [2009] 2 IR 302 at p. 319) in respect of one injured citizen can have a negative effect on the freedom of all citizens. Lord Hoffman stated at para. 81:

“The arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.”

Lord Hoffman, at para. 46, also referenced the fact that it

“Is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious.”

He went on to criticise the misguided perception of the Court of Appeal of the impact an award of damages could potentially have on public enjoyment of facilities.

“Sedley LJ, … was able to say that if the logic of the Court of Appeal’s decision was that other public lakes and ponds required similar precautions, “so be it”. But I cannot view this prospect with the same equanimity. In my opinion it would damage the quality of many people’s lives.” (at para. 48)

Lord Hoffmann further noted at para. 34:

“The question of what amounts to “such care as in all the circumstances of the case is reasonable” depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.”

Lord Scott stated at para. 94:

“Of course there is some risk of accidents arising out of the joie-de-vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone.”

Does the law require that all trees be cut down because someone may climb and fall?

64. Lord Hobhouse also made remarks regarding the impact awards of damages could have on the freedom of others to enjoy amenities (at para. 81):

“It is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coastline and other beauty spots to be lined with warning notices? Does the law require that attractive waterside picnic spots be destroyed because of a few foolhardy individuals who choose to ignore warning notices and indulge in activities dangerous only to themselves? The answer to all these questions is, of course, no.”

Similarly, in this case, this Court might ask does the law require that the birds’ nest swing be raised 8 inches because an adult decides to use it and thereby deprive young children from climbing onto the swing because of its raised height?

65. It seems to this Court that the Tomlinson case illustrates that the goal of law is not just to decide whether or not to provide compensation for an accident to a particular individual, but also to bear in mind the daily freedoms of every citizen, who are not parties to that litigation. This is because what people sue for can result in key limitations on the freedoms of all citizens (whether adults swimming in a lake or children playing in a playground).

High Court is bound by Court of Appeal direction not to not deny children joy of playing

66. It is also relevant to note at this juncture that the High Court (and for that matter the District and Circuit Courts) are bound by the direction from the Court of Appeal that judges should ensure that they do not risk denying children positive experiences such as playing in a playground. In this case, the playground was one which was funded by a local community. In the judgment of Irvine J., as she then was, in Byrne v. Ardenheath [2017] IECA 293 at para. 49, she dismissed a personal injuries claim by a plaintiff who slipped on a grassy bank and she stated that:

“Judges should be careful when interpreting statutory provisions such as s. 3 of the [Occupiers’ Liability Act, 1995] to ensure that they do not inadvertently and contrary to the intention of the legislature by their judgments end up denying children the joy of running down a grassy slope in a public park on a dry summer day or the golfer the pleasure of playing to an elevated green surrounded by a grassy bank.” (Emphasis added)

67. In this context, it is to be noted that if the plaintiffs in this case were successful, it would be likely to lead to an increase in the height of the swing in question by approximately 8 inches. As noted by the defendant’s engineer, this is likely to prevent certain smaller children from getting on to the higher swing and would therefore ‘ deny children the joy’ of being on that swing, all because of a personal injuries claim by an adult using a swing in a children’s playground. This is therefore a further reason why the claim should be dismissed.

68. It is also relevant to note that Hardiman J. further referenced the effect of findings of negligence on children’s play in O’Keeffe v. Hickey, when he quoted with approval the judgment of Binnie J. in the Canadian Supreme Court case of Jacobi v. Griffiths (1999) 174 DLR (4th) 71 at p. 105. In that case, there was a dismissal of a claim of vicarious liability against a non-profit organisation and Binnie J. observed that in the event of a finding of liability, the ‘ rational response’ of non-profit recreational organisations dealing with such claims ‘ may be to exit the children’s recreational field altogether’. Hardiman J. then went on to reference the decline in the number of people performing voluntary activities on a local community basis and he observed that the decisions which courts take imposing liability for negligence ‘ are not without relevance to these issues’ (at p. 343).

69. Similarly, in this case, if there were to be an award of damages for this new category of claim (of adults injured using children’s swings), it seems that it would be a rational response for organisations to exit the field of provision of play or adventure centres for children.

Conclusion on liability

70. This Court has concluded that there was no breach of duty by the Local Authority as it did in fact comply with the relevant BS standard for the height of swings. However, even if this was not the case, it is not necessary for this Court to determine whether in fact there was a deviation, in relation to the swing, from the British Standards applicable at the time. This is because there is a complete absence of causation between the alleged breach of duty (being the failure to raise the swing) and the occurrence of the accident. This is because the ‘legal cause’ of the accident was not the fact that there was an alleged shortfall in the clearance between the child’s swing and the ground, making it unsafe for use by the plaintiffs, who are both adults. Rather, the legal cause of the accident was that two adults chose, on separate occasions, to use equipment which was designed for children and which (as stated implicitly by the terms of the Notice but also based on common sense), was not for use by adults.

71. Then, when using the equipment, they failed to take sufficient care for their own safety. In this regard, since the plaintiffs chose to use equipment which was not for use by adults, but for children of 12 and under, it is perhaps not surprising that they found the swing to be ‘too low’ for their usage and so caught their ankles between the swing and the ground.

72. In those circumstances, they cannot, in this Court’s view, suggest that the accidents were legally ‘caused’ by Tipperary County Council, when in fact the accidents were caused by their decision to use equipment which was not designed for use by adults. Just as if an adult decided to accompany her toddler on a child’s tricycle because she was afraid that he might fall off and she ended up injuring herself when getting off the tricycle, she could not, in this Court’s view, apportion liability to the manufacturer of the tricycle, so too the plaintiffs cannot seek to apportion liability to the Local Authority in these circumstances for the plaintiffs’ failure to use common sense and look out for their own welfare.

73. For all the foregoing reasons, the claims of both plaintiffs are dismissed.

Accidents do not automatically give rise to a right to compensation

74. In concluding this part of the judgment, this Court would summarise and add to Hardiman’s comments in O’Keeffe v. Hickey that it is important for potential plaintiffs and their lawyers to bear in mind that, just because:

• an accident occurred and someone is injured, and

• it occurred on property which is insured or owned/managed by the State or another insured party or a ‘deep pocket’ to quote Hardiman J., and

• it could be said that ‘but for’ something (in this case the swing being low) it would not have happened (see Lavin v. Dublin Airport Authority plc [2016] IECA 268 at para. 54 et seq.), and

• an engineer provides an expert opinion that in his opinion the location of the accident was substandard (because courts should approach with caution opinions from experts engaged by one party in litigation – see Byrne v. Ardenheath [2017] IECA 293 and Hanrahan v. Minister for Agriculture, Fisheries and Food [2017] IESC 66)

does not give rise to a right to damages. As the foregoing analysis illustrates, there are other factors to be considered, such as the social value of the activity in question, the effect of a successful claim on the freedom and liberty of others, the duty of every citizen to take reasonable care for themselves, the application of common sense (i.e. what ‘ universally known by reasonable adults of normal intelligence’) etc.

What would the reaction be if the accident occurred in her own home or on a sports pitch?

75. In this regard, in analysing whether someone else is legally liable for an accident, it is sometimes helpful to consider the likely reaction of the plaintiff if the accident had happened in her home or indeed on a sports field. It seems to this Court that if the plaintiffs had fractured their ankles while playing with children in their own home in similar circumstances or on sports field, they would, in this Court’s view, be likely to dismiss it as an ‘unfortunate accident’ or a failure of common sense or a misjudgement which befalls everyone at some stage in their lives and for which no compensation is available.

76. Just because the accident happens in a public place which is covered by insurance, or which is the responsibility of a State body, does not alter the essential character of what occurred as an unfortunate accident for which no one, other than the plaintiff, is responsible.

77. Accordingly, while a court might have sympathy for the plaintiffs for the fractured ankles they suffered, it is not the job of a court to be generous based on sympathy, with other people’s money, whether that money belongs to a taxpayer, an insurance company or an individual uninsured defendant. Accordingly, there is no basis upon which the plaintiffs’ ‘ quest’ for ‘ a deep pocket’ can be satisfied in this case.

78. Furthermore, in light of the considerable backlog in the High Court, it seems to this Court that this backlog might be eased (for the benefit of litigants with serious injuries in need of urgent compensation) if litigants and their lawyers asked what the reaction would have been if the accident had occurred in their own home? Such a question would, in this Court’s view, have highlighted in this case (and perhaps in other cases) that the real cause of the accident is an absence of care or common sense and not alleged negligence by some third party, who has insurance or a ‘deep pocket’.

DAMAGES OF OVER €54,000 FOR ‘MINOR’ INJURY?

79. If this Court is wrong regarding liability, it is relevant to consider the submissions of counsel for the plaintiffs regarding what he regarded as fair compensation for the injuries sustained.

80. Mr. Counihan S.C for the plaintiffs made submissions in this case regarding the application of p. 64 of the Book of Quantum to the plaintiffs’ injury, which deals with what is described as ‘minor’ ankle injuries. On this basis he submitted that Ms. O’Mahoney was deserving of damages of in the region of €54,700. In this regard, it is to be noted that there was no claim for special damages in the form of loss of earnings as it seems that Ms. O’Mahoney was not employed at the time. Out of pocket expenses were claimed in the form of ‘medical expenses’ and ‘travelling expenses’, but these were not particularised.

81. There was no indication given to the Court that these out of pocket expenses were substantial or came anywhere close to €5,300 (which, when added to the figure of €54,700 relied upon by counsel, would give a total of €60,000, the floor for damages in the High Court). Accordingly, it seems that the plaintiff and/or her lawyers regard her minor ankle injury as justifying an award for pain and suffering alone of close to €60,000.

82. Counsel for Tipperary County Council, Mr. Bulbulia BL agreed with Mr. Counihan’s description of the plaintiffs’ injuries as ‘minor’ and he quoted from the Book of Quantum as to the inclusion of ‘ a simple non-displaced fracture in the ankle’ in this category of minor injuries. In doing so, he referred the Court to the non-binding Book of Quantum referencing damages of ‘up to €54,700’. Both counsel referred only to the non-binding Book of Quantum and they did not made any submissions regarding the effect of the principles (set down by the Court of Appeal and the Supreme Court and set out below) which bind this Court regarding the assessment of damages on the appropriate compensation in this case.

Personal Injuries Guidelines are not binding in this case

83. Both counsel placed reliance on the Book of Quantum, as the proceedings were issued prior to the 24th April, 2021, when the Personal Injuries Guidelines were passed by the Judicial Council (the “Personal Injuries Guidelines”). For this reason, the Personal Injuries Guidelines are not binding regarding the assessment of damages in this case.

84. It is relevant to note that when this Court heard High Court personal injuries actions in June 2021, most, if not all, the cases which were heard were instituted on average six years earlier. Accordingly, it seems likely that many, if not the majority, of cases to be heard in the High Court over the next six years will be ones initiated prior to 24th April, 2021. Therefore, the Personal Injuries Guidelines may not be binding regarding the assessment of damages in the majority of cases to be heard for the next six years and hence it is important to clarify the binding legal principles which will apply during that period.

85. In particular, each time a plaintiff relies on the Book of Quantum to support his claim for damages, it is important for this Court to consider what the appropriate level of damages should be, in light of the case law for calculating damages set down by the Court of Appeal and the Supreme Court, particularly since the Book of Quantum is not binding on this Court (this is because s. 22 of the Civil Liability and Courts Act, 2004 provides that ‘ The court shall, in assessing damages in a personal injuries action, have regard to the Book of Quantum.’ (Emphasis added)).

86. This issue is particularly relevant in the present context since, as noted below, this Court concludes that the non-binding Book of Quantum figure of €54,700 is considerably more than the sum for fair compensation reached, when this Court applies the binding principles for assessing compensation, set down by the Court of Appeal and the Supreme Court.

87. For the avoidance of doubt, it is important to emphasise that the Personal Injuries Guidelines which have been described as reducing personal injury awards by 50% (see The Irish Times, ‘ Personal injury awards drop 50% following introduction of new guidelines’, 6th July, 2021) are not binding on this Court in relation to the assessment of damages in this case and were not relied upon by this Court.

88. However, it is important to note that this does not mean that the principles set down by the Court of Appeal and the Supreme Court are not binding on this Court, regarding how to assess damages (which are referenced in the Personal Injury Guidelines themselves and in the Report of the Personal Injuries Guidelines Committee published by the Judicial Council in December 2020, as the basis for the calculation of damages). The High Court (and indeed the Circuit and District Courts), are bound by those principles and so those principles, which will be considered next, have a direct and binding impact on the assessment of damages by this Court.

The law which governs the calculation of damages

89. When calculating the level of damages for an award in a case such as this, while the non-binding Book of Quantum is of relevance, it is of limited assistance in comparison to the principles of the Court of Appeal and the Supreme Court which bind this Court. Significantly the figure that this Court would regard as fair compensation for Ms. O’Mahoney (applying the binding principles of the Court of Appeal and the Supreme Court) is less than the figure which counsel suggest is appropriate based on the Book of Quantum.

Compensation of up to €54,700 for ‘minor’ ankle injuries according to Book of Quantum

90. The section of the Book of Quantum to which this Court was referred by counsel for Ms. O’Mahoney was the following at p. 64:

“Fractures – distal Tibia, distal Fibula and Talus

Three bones form the ankle joint; the distal (bottom end) tibia bone (known as the medial malleolus), the distal (bottom end) fibula (known as the lateral malleolus) and the talus bone (one of the tarsal bones in the foot). Fractures that involve the joint are usually considered more complicated than others due to the increased impact on limb movement. The more severe injuries involve displacement and ligament damage (which may be treated with either open or closed reduction).

Minor up to €54,700

These injuries will include simple non-displaced fracture in the ankle which has substantially recovered.

Moderate €39,100 to €87,600

These injuries will include displaced fractures to a single bone in the ankle, or nondisplaced fractures to multiple bones with a full recovery expected with treatment.

Moderately Severe €79,900 to €89,300

Multiple fractures that have resolved but with ongoing pain and stiffness which impacts on movement of the ankle.

Severe and permanent conditions €80,500 to €93,300

These injuries include all three bones of the ankle structure which required extensive surgery and extended healing but may result in an incomplete union and the possibility of having or has achieved arthritic changes and degeneration of the ankle joint and may affect the ability to walk unaided.”

The injury in this case

91. Ms. O’Mahoney suffered a straightforward or undisplaced fracture of her ankle. She was in a cast for six weeks and a boot for four weeks and was out of work for ten weeks. The fracture healed very quickly and an x-ray after her return to work showed that it had healed without complications.

The Personal Injuries Guidelines are not yet binding but can be relied upon

92. This case was instituted prior to 24th April, 2021 and so the figures in the Personal Injuries Guidelines regarding minor ankle injuries are not binding on this Court regarding its assessment of damages.

93. While this Court does not feel it needs to refer or rely upon the figures set out in the Personal Injury Guidelines to assist it assessing damages in this case, it remains to be observed that there is no reason why, in appropriate cases, an Irish court cannot, if it so wishes, refer to the Personal Injury Guidelines to assist it in reaching its assessment of damages, even though the Personal Injury Guidelines are not ‘binding’ on the court (in relation to litigation commenced prior to 24th April, 2021). (In this regard, s. 22(2) of the Civil Liability and Courts Act 2004 states that subsection (1) (cited above) ‘ shall not operate to prohibit a court from having regard to matters other than the Book of Quantum when assessing damages in a personal injuries action’).

94. This conclusion is based on the fact that the Supreme Court, in Morrissey v. Health Service Executive [2020] IESC 6 at para. 14.18, in deciding whether the cap for damages at €500,000 was reasonable, relied on Judicial Guidelines for the Assessment of Damages in Northern Ireland and also on Judicial Guidelines for the Assessment of Damages in England and Wales. Clarke C.J. stated:

“In the Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland (5th Ed.), which were published in 2019 as a resource for courts and practitioners in the assessment of damages in personal injury cases, the highest level of damages specifically provided for is in respect of injuries resulting in quadriplegia, which attract awards between £475,000 and £700,000. In the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (14th Ed.), published in 2017, which are for the benefit of the judiciary in England and Wales, the highest awards of damages recommended are also in respect of injuries resulting in quadriplegia, which will generally attract an award of between £284,610 to £354,260.”

95. Thus, even though those foreign judicial guidelines on damages are clearly not binding as a matter of Irish law on the Supreme Court, that court relied upon them to reach its conclusion as to whether a particular figure for damages, in that case the cap of €500,000, was reasonable.

96. It is difficult to see therefore why an Irish court could not, if it so wished, rely on other non-binding guidelines (in this case the Personal Injury Guidelines issued by the Judicial Council in Ireland), even if those Guidelines are not binding on the court (if the litigation was commenced prior to 24th April, 2021), in order to assist the court, if it felt it needed assistance, in reaching its conclusion as to the reasonableness of a certain figure for damages.

97. Indeed, the argument for an Irish court relying on the Judicial Council’s Personal Injury Guidelines is much stronger than the argument for an Irish court relying on the Northern Irish or the English & Welsh Guidelines. This is because the Personal Injury Guidelines are binding as a matter of Irish law (in relation to cases instituted since 24th April, 2021), while these ‘foreign’ guidelines are not, and are unlikely to ever to be, binding on an Irish court, yet the Supreme Court had no issue relying upon them.

THREE PRINCIPLES HIGH COURT MUST APPLY IN ASSESSING DAMAGES

98. However, this Court does not feel it needs to rely on the Personal Injury Guidelines, since it does not need to go beyond the three core principles set down by the Court of Appeal for the assessment of damages, which are binding on the High Court. In Nolan v. Wirenski at para. 31, Irvine J. (as she then was) set out these three founding principles which apply to the assessment of damages as follows:

“Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the State; and (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries.”

Thus, while it seems clear that the High Court may, in reliance on Morrissey, rely on the Personal Injuries Guidelines as assistance in calculating damages (which this Court does not feel it necessary to do), it is ‘ required’ to apply these three principles in the calculation of damages, which this Court will now do:

(I) IS THE AWARD FAIR TO THE PLAINTIFF AND DEFENDANT

99. The first principle is that awards of damages should be ‘fair to the plaintiff and the defendant.’

100. Therefore, in every case in which damages are being assessed, the Court must consider not only whether the amount of damages proposed is reasonable in light of the pain and suffering which the plaintiff has had to endure previously and into the future, but also whether the amount of damages is a reasonable amount to ask a defendant to pay for causing (usually accidentally) the pain and suffering in question.

101. It seems to this Court that what is fair compensation arises independent of the financial standing of the plaintiff or the defendant. This is because the test is not what a defendant can afford, but rather what is a fair award in light of the second and third principles for assessing damages i.e. the proportionate principle and the common good/social conditions (which as noted below relates, inter alia, to the general level of incomes in the State).

102. Thus, it seems to this Court that it is irrelevant, in calculating the level of damages, whether the defendant is an insurance company, the State/taxpayers, an uninsured person on the average wage or an unemployed individual. Thus, as noted by Hardiman J. in O’Keeffe v. Hickey at para. 42 ( albeit, in the context of finding a defendant vicariously liable for injury)

“I do not consider that companies, institutions or even the State itself are necessarily to be considered in a different light than an individual.”

103. Similarly, as noted hereunder, while the amount due to a plaintiff in respect of special damages, such as loss of earnings, will vary depending on whether she is a successful business woman or unemployed, what is fair in respect of general damages for pain and suffering is in general the same whether the plaintiff is wealthy or unemployed, since pain and suffering takes no account of a person’s wealth.

104. While the concept of what is ‘fair’ compensation to a plaintiff and a defendant would, in the absence of further guidance (in the form of the second and third principles), be open to very differing interpretations, it seems to this Court that, when it comes to coming up with a figure to compensate a plaintiff for the injury caused, the second and third principles provide much more concrete assistance (because of the reference to actual euro figures as a touchstone for calculating damages).

(II) IS THE AWARD PROPORTIONATE?

105. The second principle derives from a number of cases including the Supreme Court decision in M.N. v. S.M. [2005] 4 IR 461 and the Court of Appeal decision in Wirenski. It is whether the proposed award, of general damages for pain and suffering, as distinct from special damages, is proportionate within the scheme of awards generally and in particular to the general cap on damages for catastrophic/quadriplegic injuries. As regards that cap, Irvine J., as she then was, noted in Wirenski at para. 32 that:

“It can however generally be said that insofar as cases which involve catastrophic or life changing injury have come before the Courts in recent years, the level of general damages awarded in respect of injuries of this type has generally been somewhere in or around €450,000. That is not to say that €450,000 is a maximum. There has been the rare case in which a sum in excess of that figure has been awarded.”

106. At para. 42, she noted:

“As Denham J. advised in M.N. v. S.M. damages can only be fair and just if they are proportionate not only to the injuries sustained by that plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude.”

107. Compliance with this ‘ proportionate’ principle is important in order to avoid what the Court of Appeal described in Payne v. Nugent [2015] IECA 268 at para. 18 as the ‘concertina’ effect on damages. The judgment in Payne v. Nugent refers to four classes of injuries in this regard, namely:

• modest (or minor),

• middle-ranking (or moderate),

• serious, and,

• catastrophic.

108. The Supreme Court judgment in M.N. v. S.M. [2005] 4 IR 461 and the Court of Appeal judgments in Nolan v. Wirenski [2016] IECA 56 and Fogarty v. Cox [2017] IECA 309 make it clear that:

• modest damages should be awarded for minor injuries,

• moderate damages for middling injuries,

• severe injuries should attract damages which are distinguishable from catastrophic injuries.

109. The judgment in Payne v. Nugent discusses the necessity for awards of damages to avoid the ‘ concertina type effect’, in order to avoid an injustice being caused to persons with catastrophic injuries or serious injuries. This injustice would arise if persons with modest/minor injuries, receive awards which are not significantly less than those received by persons with moderate/middle ranking injuries, which are themselves not significantly less than those received by persons with serious injuries such as a loss of a limb, which themselves are not significantly less than those with catastrophic injuries/quadriplegia.

110. It is important to note that while the Wirenski judgment referenced €450,000 as the cap for damages it is clear from para. 14.24 of the Morrissey decision that the current cap is now €500,000.

Application of the proportionate principle in this case

111. In this case, one can apply the proportionate principle by noting that the suggested award of up to €54,700 for the pain and suffering, relating to (what the Book of Quantum and counsel for Ms. O’Mahoney described as) a ‘minor’ ankle injury and led to her being out of work for 10 weeks, is almost 1/9th of €500,000 (the maximum award for the pain and suffering for a quadriplegic/catastrophic injury).

112. It is difficult for this Court to see how this could be regarded as ‘proportionate’ (bearing in mind the requirement that awards for minor injuries must be proportionate to quadriplegia/catastrophic injuries) in light of the respective pain and suffering attaching to, on the one hand, quadriplegia/catastrophic injuries, and on the other hand, a minor ankle injury – i.e. how could it be proportionate for the latter injury to give rise to an entitlement to almost 1/9th of the damages of the former life-changing catastrophic injuries.

113. It is this Court’s view that this would not be proportionate. Rather an award of closer to €5,000 – €10,000 would be more proportionate and consistent with the need to avoid the ‘ concertina’ effect.

114. When applying this principle for the assessment of damages, it seems to this Court to be undoubtedly easier to compare serious injuries such as loss of a limb with catastrophic injuries such as quadriplegia which are in some way comparable, so as to decide if the proposed award is proportionate, than it is to compare a modest injury with catastrophic injuries, since a minor ankle fracture is so far removed from quadriplegia/catastrophic injuries.

115. For this reason, the real value of this proportionate principle, in this Court’s view, is not so much to come up with an actual award (for which the third principle regarding the general level of incomes is of greater assistance), but rather to help a court to ‘reality-check’ a proposed award. Nonetheless this proportionate principle is of relevance for modest/minor injuries, particularly in view of the importance of avoiding the ‘concertina’ effect as outlined by the Court of Appeal.

(III) IS AN AWARD REASONABLE IN LIGHT OF THE COMMON GOOD & SOCIAL CONDITIONS IN THE STATE?

116. The third and final principle, which the High Court is obliged to apply by the Court of Appeal decision in Wirenski (and, as noted below, by the Supreme Court decision in Sinnott v. Quinnsworth [1984] I.L.R.M. 523), is whether the proposed compensation is objectively reasonable in light of the common good and social conditions.

117. The perception of what is in the common good will vary depending on the particular circumstances of a personal injuries case and is a somewhat subjective criteria and less concrete than the term ‘social conditions’. In this Court’s view, it is unlikely to be a regular factor in assessing the precise amount of damages in a particular case, but it could well be necessary, in the particular circumstances of a case, for reference to be made to the common good in assessing damages. For example, in rare circumstances, it is possible that the common good might necessitate an award of increased or reduced damages, than might otherwise be the case, if the court felt that the common good justified such a reduction/increase.

118. The most helpful aspect of the third principle in assessing damages, is in this Court’s view, likely to be the ‘social conditions’ aspect of this principle. This is because the term ‘ social conditions’ is, in this Court’s view, a much more specific term than ‘ common good’ and accordingly capable of being of concrete assistance in assessing how much compensation should be paid in respect of a particular personal injury. This is because it seems clear from the judgment of O’Higgins C.J. in Sinnott v. Quinnsworth [1984] I.L.R.M. 523, that the term ‘social conditions’ refers, inter alia, to the general level of incomes in the State. At p. 532 of that judgment, he stated that in determining whether a figure for general damages for pain and suffering was fair and reasonable:

“some regard should be had to the ordinary living standards in the country, to the general level of incomes and to the things upon which the plaintiff might reasonably be expected to spend money.” (Emphasis added)

The fact that this Court is obliged to have regard to the general level of incomes in assessing damages for pain and suffering is also clear from the High Court decision in Yang Yun v. MIBI [2009] IEHC 318.

119. In that case, in determining the appropriate level of general damages for personal injuries, Quirke J. makes it clear that account must be taken of ‘ economic realities’ (at para. 157) and in particular regard must be had to ‘individual disposable income’ (at para. 156), which he regarded as a relevant factor in the measurement of ‘contemporary standards’ (at para. 135) and in particular current ‘social conditions’ (which is the same expression used by the Court of Appeal in the Wirenski case). He clarifies why disposable incomes have no relevance to pecuniary loss or special damages, but they are relevant to general damages or non-pecuniary losses, at para. 153 of his judgment:

“However, in Heil v. Rankin [2001] QB 272 at p. 297, the Court of Appeal (Lord Woolf M.R.) pointed out that:

“A distinction exists… between the task of the court when determining the level of pecuniary loss and when determining the level of non-pecuniary loss. In the case of pecuniary loss, and issues such as that which engaged the House of Lords in Wells v. Wells, the court is only required to make the correct calculation. Economic consequences are then irrelevant. When the question is the level of damages for non-pecuniary loss the court is engaged in a different exercise. As we have said, it is concerned with determining what is the fair, reasonable and just equivalent in monetary terms of an injury and the resultant PSLA. The decision has to be taken against the background of the society in which the court makes the award.”

Those observations and the distinction identified by Lord Woolf between pecuniary loss (compensated by special damages) and non-pecuniary loss (compensated by general damages) are quite consistent with the principles and further distinctions identified by the Supreme Court in Sinnott v. Quinnsworth and M.N. v. S.M.

Hence, the need for the courts to hear evidence of and to consider “contemporary standards and money values” when assessing and calculating the limit or “cap” to be imposed on awards for general damages from time to time.

It was confirmed in evidence that this country is presently enduring a period of unprecedented recession. There has been a significant drop in individual disposable income and it is anticipated that this will become more acute during the next several years. Wealth and living standards have declined appreciably and economic growth has been replaced with contraction.

Those factors are relevant to the measurement of “contemporary standards” and current “social conditions” within this country and it can be validly argued that, in general, awards of general damages should reflect such economic realities.” (Emphasis added)

120. In that case of Yang Yun v. MIBI, which considered the rise in the ‘cap’ on general damages in the period since its introduction in 1984 (by the Supreme Court in Sinnott v. Quinnsworth) to 2007 (when Yang Yun v. MIBI was heard), Quirke J. relied on the rate of increase in the ‘average industrial earnings’ during that period as an appropriate rate of increase to apply to the cap on damages.

High Court obliged to have regard to the general level of incomes in assessing damages

121. Based on the foregoing case law, it seems clear therefore in applying the third founding principle for the assessment of general damages in a personal injuries case, this Court is obliged to have regard to the general levels of income.

122. Furthermore, this Court believes that the general level of incomes (which this Court interprets to mean the average earnings of people in the State) is a very useful tool, in conjunction with the ‘proportionate principle’, in calculating an appropriate figure for compensation, particularly when one is dealing with modest or middle ranking injuries, which in severity are a long way from catastrophic injuries, for which €500,000 is the ‘cap’ on general damages.

123. This is because for very minor injuries in particular, it may be difficult to even contemplate that the injury is any way referable or even on the same scale as quadriplegia, e.g. a soft tissue injury, which is the type of injury which a court often has to deal with in personal injury cases. For such injuries a touchstone such as general level of incomes/average earnings in the State is, in this Court’s view, crucial in the assessment of damages (in conjunction with the proportionate principle).

Touchstone is not unemployment rate or large salary, but ‘general level of incomes’

124. Of course, the general level of incomes is not what an unemployed person might receive per annum on job seeker’s allowance (circa €10,000 per annum) or what an old-aged pensioner receives (circa €13,000). On the other hand, the general level of incomes is not what a successful lawyer or other successful professional or businessperson earns per annum, which could be many multiples of these amounts. Rather the general level of incomes or touchstone amount appears to this Court to be the average earnings of everyone in the State from those on social welfare up to and including those on the highest salaries.

125. The logic of this approach seems to this Court to be that pain and suffering does not discriminate between the wealth of victims. If one is unemployed or wealthy, the calculation of damages for pain and suffering should be related to average incomes. In this instance, it means that the general level of incomes/average earnings of a person in Ireland is to be used as a touchstone in deciding on the appropriate level of damages for all claims of pain and suffering for personal injuries. As previously noted, Hardiman J. observed in O’Keeffe v. Hickey at p. 317 that ‘ companies, institutions or even the State itself are necessarily to be considered in a different light than an individual.’

126. While this observation was made in the context of finding a defendant vicariously liable for personal injuries, it seems to this Court, equally applicable to the calculation of damages, since the relevant principles for calculating damages, and in particular the ‘general level of incomes’ takes no account of the financial position of the defendant or indeed if he is insured or not.

127. Of course, it is important to bear in mind that this is not the case in relation to special damages (or pecuniary losses), which will often vary depending on the financial position or wage of the plaintiff. So, while general damages for pain and suffering do not discriminate based on a person’s wealth, special damages will apply differently to people depending on their financial circumstances. For example, if a person is out of work for 10 weeks because of an ankle injury and she was earning €10,000 a week, then she will have in addition to a claim for general damages for pain and suffering, an entitlement to receive from the defendant special damages in respect of a loss of earnings of €100,000. Thus an award of damages could be for a figure of €100,000 in special damages plus a figure for say €7,500 in general damages for pain and suffering, giving a total award of €107,500. However, in this judgment, this Court is not concerned with special damages, but only with general damages for pain and suffering.

What is the general level of incomes in Ireland?

128. Since a court has to turn the abstract (pain and suffering) into the concrete (a sum of money), it is important to have a precise figure for the general level of incomes, in much the same way as one has regard to a concrete figure for the ‘cap’ on damages, which is currently a figure of €500,000.

129. For this purpose, this Court relies on the figures published by the Central Statistics Office (“CSO”), and in particular the annual release of the ‘average weekly earnings’ in the State. The most recent figure released by the CSO is €867.52 per week i.e. €45,111 per annum (CSO Statistical Release, 1 June 2021), which is circa €35,000 after tax.

The after-tax amount of the general level of incomes

130. In this regard, it seems clear to this Court that in determining the ‘general level of incomes’, the after-tax income has to be considered since this is the amount actually received by an employee. Support for this view is to be found in the approach of the Supreme Court in McDonagh v. Sunday Newspapers [2018] 2 I.R. 79 to assessing whether a damages award by a jury in a defamation action was fair. At pp. 109 and 110 O’Donnell J. stated:

“Finally, the award was on any view a very large sum of money which would have meant that the plaintiff could live very comfortably for the rest of his life. Given the fact that tax is not chargeable on the award, it is worth considering how long and how hard an individual would have to work to amass such a sum, and in turn what €900,000 in 2008 or its equivalent in today’s money could purchase. I agree with all my colleagues that the award was excessive and must be set aside.” (Emphasis added)

Thus, it is to be noted that the Supreme Court concluded that it was relevant, in determining whether an award was reasonable, that no tax was paid on the award. To put it another way, it was the ‘after-tax’ amount which was considered by the Supreme Court in assessing the reasonableness of damages. Similarly, it seems to this Court that a court must take account of the ‘after-tax’ amount of the ‘general level of incomes’ in the State (and not the gross earnings), in deciding whether an award for pain and suffering is reasonable, when it is applying the third principle for assessing damages.

131. Accordingly, it is to this figure of circa €35,000 per annum (after tax) or circa €3,000 per month, which this Court will refer to as the ‘ average earnings’ or the ‘general level of incomes’ (to use the expression used by O’Higgins C.J.), in order to determine what is a fair and reasonable amount of compensation in a particular case.

Application of ‘general level of incomes’ to this case

132. Applying the Supreme Court’s analysis in Sinnott v. Quinnsworth therefore, one might ask whether, bearing in mind that the average earnings for a year in the State is circa €35,000 per annum, a figure of €54,700, as suggested by counsel for the plaintiffs, would be fair and reasonable compensation for a person who had a straight-forward fracture of an ankle which healed without complications and led to her being out of work for 10 weeks.

How long would someone have to work to earn those damages?

133. Another way to apply this third principle is to ask how long someone would have to work to earn the proposed damages, since this is what was done by the Supreme Court in McDonagh v. Sunday Newspapers when assessing whether a particular figure for damages was reasonable. In that case, it asked how long someone would have to work to earn the amount in question. At pp. 109 and 110, in determining whether an award of damages was reasonable, O’Donnell J. stated:

“Finally, the award was on any view a very large sum of money which would have meant that the plaintiff could live very comfortably for the rest of his life. Given the fact that tax is not chargeable on the award, it is worth considering how long and how hard an individual would have to work to amass such a sum, and in turn what €900,000 in 2008 or its equivalent in today’s money could purchase. I agree with all my colleagues that the award was excessive and must be set aside.” (Emphasis added)

Although this test as to the reasonableness of damages was done in the context of a defamation award, there seems no reason why the same exercise cannot be done in relation to damages for pain and suffering, since in either case one is seeking to determine whether an amount of damages in euro terms is reasonable.

134. In addition, it seems to this Court that, although not explicitly stated by O’Donnell J., the question was not how long a wealthy person would have to work, since logic would seem to dictate that it is how long a person on average earnings would have to work. Accordingly, this approach by the Supreme Court in McDonagh is consistent with, but perhaps a slightly more user-friendly adaptation of, O’Higgins CJ.’s test in the Sinnott v. Quinnsworth case.

135. When the analysis is done in this manner, it appears to this Court that €54,700 could not be said to be fair to the plaintiff and the defendant. To put the matter another way, if the defendant were uninsured and he was a person on the average wage, he would have to work for over a year and a half to earn enough to pay the plaintiff damages for the pain and suffering caused to her by his accidental infliction of the ankle injury, which fully healed and kept her out of work for just 10 weeks.

136. Similarly, looking at it from the plaintiff’s perspective, for her to earn this sum of money, she would have to work for over a year and a half, if she was on the average wage. Viewed in the ‘general level of incomes’ context (the third principle), which this Court is required to consider, it seems clear that €54,700 is well in excess of what could be regarded as fair compensation for a minor ankle injury.

137. It has already been noted, that when considering the ‘proportionate’ principle (the second principle), this Court concluded that a sum of €5,000 – €10,000 would amount to fair compensation for Ms. O’Mahoney’s injury to her ankle (relative to the cap of €500,000 for paraplegia/catastrophic injuries).

138. It is helpful to now consider this sum of €5,000 – €10,000 in light of the general level of incomes/how long one would have to work test, to see if it is reasonable in that context. A sum of €10,000 is the net sum of money which would be earned by a person on the average wage working for a period of just over 3 months (based on net average earnings of €3,000 per month). It seems to this Court therefore that a figure of €5,000 – €7,500, i.e. between two and three months’ income, would be fair compensation for the pain and suffering caused to Ms. O’Mahoney for her ‘minor’ ankle injury. It must be remembered that Ms. O’Mahoney, or indeed any other plaintiff, will also be entitled to any out of pocket expenses (or special damages), such as loss of earnings, medical expenses etc. on top of this figure for pain and suffering (or general damages).

139. Having considered the three founding principles for the assessment of damages set down by the Court of Appeal and the Supreme Court, and having concluded that a sum of a maximum of €7,500 would be fair compensation, it is useful to now consider a rare case in which the Supreme Court had to calculate what it regards as moderate damages (since appeals in relation to damages for minor injuries are rarely if ever heard by the Supreme Court) and in particular the type of injury for which the Supreme Court regarded €7,500 as fair compensation.

Type of injury for which Supreme Court regards €7,500 as fair compensation

140. In Simpson v. Governor of Mountjoy [2019] IESC 81 the Supreme Court considered the appropriate amount of compensation for a person who cannot be said to have ‘sustained significant injuries’ (at para. 118). This Supreme Court case is being considered in the context of the plaintiffs’ counsel having referred to their injuries as falling within the category of ‘minor’ ankle injuries in the Book of Quantum ( albeit that he did so by reference to the €54,700 figure and in the context of proceedings that were taken in the High Court with a jurisdiction of €60,000 for damages in personal injury cases).

141. Since minor injuries are normally dealt with in the District Court (with a final appeal to the Circuit Court) or perhaps in the Circuit Court (with a final appeal to the High Court), it is unusual for there to be a judgment from the Supreme Court on the appropriate level of compensation for ‘minor’ injuries. Hence the Simpson decision assumes particular importance not just for this Court, but also for the Circuit and District Courts when these courts are presented with minor/modest or moderate/middling injuries.

142. In the Simpson case, the plaintiff took an action seeking damages against the State as he was, for a period of seven and a half months, forced to slop out in prison. Although not a personal injuries action (as it was an action for damages for breach of constitutional rights, including his right to dignity, privacy and autonomy), nonetheless it is relevant to note that the plaintiff was claiming damages for the harm caused to him, since he sought damages for the fact that he felt ‘deeply humiliated, alienated from support and denigrated’ as a result of his exposure to conditions which were ‘ distressing, humiliating, and fell far below acceptable standards’ (at para. 116 et seq.). In many ways, the claim therefore was similar to a claim for ‘pain and suffering’ in tort law made by a person who suffered personal injuries.

143. Crucially, it is important to note that the approach of MacMenamin J. (at para. 126 et seq.) was ‘ insofar as practicable, to adhere to principles applicable in tort law’ and he applied a ‘ restitutionary element’ to the assessment of damages. In making the award, he stated that ‘ the award should be characterised as compensatory damages’. This is the same approach which is taken to assessing damages for pain and suffering in personal injury actions. This case therefore is an important statement by the Supreme Court regarding what amounts to ‘minor’ or moderate damages for injuries which the Court determined could be said to not be ‘significant’ (at para. 118) or serious and so in this Court’s view, is of considerable relevance to the District, Circuit and High Courts in considering ‘minor’ or ‘moderate’ damages for personal injuries which are not serious.

144. In that case, the Supreme Court determined that the sum of €7,500 was appropriate compensation for a prisoner who was forced to slop out for seven and a half months and MacMenamin J. described the sum of €7,500 as ‘ moderate compensatory damages’ (at para. 130) for the injury caused to the plaintiff. This sum was claimed in respect of the stress and humiliation suffered by the prisoner and so it seems clear that the damages which were awarded were designed to compensate him for the pain and suffering endured by him during that seven and half month period, in exactly the same way as general damages for pain and suffering are designed in a personal injuries action to compensate a plaintiff.

145. Since the Supreme Court regards €7,500 as ‘fair’ damages from the perspective of the plaintiff and the defendant for the pain and suffering caused to a plaintiff for having to slop out for seven and a half months, which sum the Court described as ‘ moderate compensatory damages’, it is difficult to see how Ms. O’Mahoney who was out of work for just over two months as result of a minor ankle injury, which healed without complication, would be entitled to multiples of that amount for her pain and suffering, as suggested by her counsel in reliance on the Book of Quantum.

Advantage of the three founding principles in calculating damages

146. Before concluding on the appropriate level of damages in this case, it is worth noting that, while the first founding principle (of what is ‘ fair to the plaintiff and defendant’) is necessarily subjective for each judge, the second and third founding principles for the assessment of damages are considerably less subjective, since they use concrete figures, namely a cap of €500,000 and the general level of incomes of circa €35,000 per annum after tax.

147. The use of these concrete figures as the basis for calculating damages are useful since it illustrates for litigants that damages are not plucked out of the sky by courts, but rather the courts are required by the Court of Appeal and Supreme Court to conduct an exercise using concrete figures (for the cap on damages and the general level of incomes) that change over time with inflation.

148. It does not mean that two judges will reach the same figure, since one judge might regard the pain and suffering for an injury as worth in monetary terms say one year’s average income, while another judge might be of the view that it is worth one and half years’ average income, but it does mean that the final figure is relatable to concrete figures and provides in each case therefore a type of ‘reality-check’ for a plaintiff and a defendant, as to the level of damages.

149. Applying the three founding principles for the assessment of damages should therefore make it easier for litigants and their lawyers to understand how a court comes up with a figure for pain and suffering, and therefore it may facilitate the settling of claims, without litigants and their advisers themselves being expected to pluck figures out of the sky.

Conclusion regarding damages

150. Based on the foregoing, it seems to this Court that if Ms. O’Mahoney were to be awarded damages, it should be in region of €5,000 – €7,500 and so this claim should, in any case, have been brought in the District Court.

151. Such an award is, in this Court’s view:

• proportionate to the cap of €500,000 for damages for pain and suffering for quadriplegia/catastrophic injuries in view of the vast difference between the respective injuries, and,

• reasonable in light of the general level of incomes (after tax) of circa €35,000 per annum, bearing in mind it would take a person on the average wage 2-3 months to earn that amount of damages (in reliance on the Supreme Court in McDonagh).

152. In addition, to ‘reality-check’ the award, it is to be noted that the Supreme Court determined that an award of €7,500 was fair compensation for a person who felt ‘ deeply humiliated, alienated from support and denigrated’ as a result of having to slop out for seven and half months which the Court found was ‘distressing, humiliating, and fell far below acceptable standards’. Accordingly, a sum of €5,000 – €7,500 seems reasonable for the ‘pain and suffering’ endured by Ms. O’Mahoney as a result of her undisplaced fracture which fully healed without complications and led to her being out of work for just over two months.

153. In conclusion, this Court would observe that although no reliance was placed in this judgment on the Personal Injury Guidelines, it remains to be observed that the range of awards set out in the Personal Injuries Guidelines for ‘ minor ankle injuries’, which include ‘ less serious, minor or undisplaced fractures’ states that an ankle injury which recovers within six months is assessed at €500 – €3,000 and where there is recovery within six months to two years, the award is in the region of €6,000 – €12,000.

Why some unmeritorious claims might be brought in the High rather than District Court

154. This Court has expressed the view that even if this was a meritorious claim, it should have been instituted in the District Court.

155. However, if an impecunious plaintiff with an unmeritorious claim hopes to receive a settlement, it is to be noted that if he institutes proceedings in the High Court, rather than the District Court or Circuit Court, he may be increasing the likelihood of a settlement as well as increasing the amount of that settlement.

156. This is for the simple reason that there is a much greater financial incentive for a defendant to settle a High Court claim against an impecunious plaintiff, than a District Court claim. To take an example, if the details provided to this Court in the Condon case regarding the settlement of two nuisance claims were representative of the value of nuisance claim settlements generally in the High Court, then a plaintiff with a nuisance claim might expect to get €10,000 to withdraw his High Court action and his lawyers might get €10,000. In contrast, legal costs in the District Court for a ‘minor’ injury are likely to be €500 – €1,000. Accordingly, in the context of a High Court action, settling an unmeritorious claim by an impecunious plaintiff for €20,000 may make economic sense for a defendant, since he may save perhaps €50,000 – €100,000 in legal costs, which he would not recover if he were to win the litigation.

157. This saving in legal costs for the defendant is likely to be fifty times more than the defendant would save in settling a District Court case (a saving of legal costs of €500 – €1,000), and perhaps ten times more than the defendant would save in the Circuit Court (say legal costs of €5,000 – €10,000).

158. It should be clear therefore that there are economic reasons why an impecunious plaintiff with an unmeritorious claim for a minor injury, who is hoping for a settlement, would choose to institute proceedings in the court where legal fees are highest, since there will be a greater incentive for the defendant to settle the claim.

159. As noted by the Supreme Court in Farrell v. Bank of Ireland [2012] IESC 42, the inability of an impecunious plaintiff to pay legal costs if he loses the litigation can be used as ‘ a form of unfair tactic little short, at least in some cases, of blackmail’. If this approach is taken by a plaintiff (and it is not suggested that it was taken by the plaintiffs in this case), it follows that the higher the legal costs, the bigger the blackmail or leverage for a settlement. Hence, there are economic reasons why such a plaintiff might institute an unmeritorious claim in the High Court, rather than the District Court, particularly as there appears to be little if any economic disincentive to doing so.

160. In the absence of any financial disincentive to taking minor injury claims in the High Court (or indeed a system in which the jurisdiction in which a claim is brought, is determined by objective criteria, rather than at a plaintiff’s choosing), this continued approach is likely to lead to some personal injuries cases for minor injuries continuing to be taken in the High Court.

161. This is a significant issue because while one might have thought that the High Court is reserved for serious and significant cases (and the District Court for minor injuries), this case perfectly illustrates that even where the plaintiffs’ counsel and the Book of Quantum categorise an injury as ‘minor’ it can still end up in the High Court and occupy that court, in this case, for two days. It seems to this Court that it is not a one-off occurrence that minor injury cases, which should be taken in the District Court, end up in the High Court, since the same week as this case was heard by this Court, a claim for an even more minor injury ( albeit an appeal from the Circuit Court) took up a similar amount of expensive and valuable High Court time (see Hardy v Bible [2021] IEHC 614, a claim involving alleged soft tissue injuries in which the plaintiff self-referred to a busy emergency department for ‘ occasional neck pain’ for which he had taken one painkiller).

162. The reason that it is significant that minor injury claims are being brought in the High Court, is because there is considerable backlog in the High Court, which means that other litigants, some with far from minor injuries (i.e. terminal or life-altering conditions) are left waiting for a High Court judge to become available to hear their cases.

163. It must be emphasised that in making this point that minor injury claims can end up clogging up the High Court, it is not being suggested that the plaintiffs or their lawyers in this case believed that the claims were unmeritorious or indeed instituted the claims in the High Court in order to increase the chances of a significant settlement or indeed believed that their claims were not deserving of compensation at the High Court level. Nor is it being suggested that lawyers would institute proceedings in a higher court on behalf of impecunious plaintiffs, on the basis that a settlement in a higher court is likely to lead to a greater settlement sum in respect of legal fees. This is because it also must always be borne in mind that lawyers act on instructions of their clients regarding the issuing of proceedings and the jurisdiction in which they are issued.

‘No lose’ for the plaintiffs but ‘lose/lose’ for the defendants

164. Finally, this case is another example of a case, where it is likely to be ‘no lose’ for the plaintiffs, as regards legal costs, but ‘lose/lose’ for the defendants, as the plaintiffs may not be in a financial position to pay the legal costs which have been awarded against them and so the defendants may end up paying their own High Court legal costs of circa €50,000-€100,000 even though they have won this case.

165. Indeed, were the plaintiffs to appeal, and even though at first instance the claim has been found to be unmeritorious (and so such an appeal would be, not just on quantum, but also on liability), there is at present no requirement for such losing plaintiffs to provide security for the costs of such an appeal. Accordingly, even though the defendant has won the case in the High Court (but is likely to have ‘lost’ on legal costs), if the plaintiffs appeal, the defendant will for a second time face the prospect that if it wins that appeal it will still have to pay its legal costs.

Result: The plaintiffs’ claim for personal injuries was dismissed.

O’Mahoney & Anor v Tipperary County Council & Ors (CA)

(Unapproved) [2022] IECA 265 (18 November 2022)

Edwards J.

Noonan J.

Collins J.

JUDGMENT of Mr. Justice Noonan delivered on the 18th day of November, 2022

1. These two appeals are brought in two personal injury actions that arose in virtually identical circumstances, albeit on different dates. Both claims were dismissed by the High Court and it is against that dismissal that the appellants (the plaintiffs or respectively Ms. O’Mahoney and Ms. Kennedy) appeal.

The Facts

2. On the 30th March, 2016, Ms. O’Mahoney, who was born on the 26th July, 1967, was present in a children’s playground at Newcastle, County Tipperary in the course of minding a toddler who was two years and ten months old. She got onto a swing, known as a basket or bird’s nest swing, with the toddler beside her. After a short period, she sought to get off the swing and in so doing, her right ankle became trapped underneath the swing resulting in her suffering an injury consisting of a fracture of the ankle. Ms. Kennedy was involved in an almost identical accident on the 13th July, 2016. She was born on the 10th October, 1994 and at the date of the accident, was looking after her 16 month old cousin. She also got on the swing with her cousin and in attempting to get off it, her right ankle also became trapped beneath the swing and she too suffered a fractured ankle.

3. Because of the close similarity of the two accidents and the fact that the same legal team and same engineer acted on behalf of both plaintiffs, the High Court heard the trials together and delivered a single judgment. The bird’s nest swing was, as its name implies, a round swing with a rigid perimeter and suspended from this was netting or mesh into which the user could sit. Unlike a more conventional and standard type of swing, the bird’s nest swing appears to be designed to move relatively gently in all directions. The netting or mesh naturally falls to a level lower than the surrounding rigid frame. The plaintiffs’ case is a relatively simple one. They say that the swing is set too low and represents a trap to users, and further breaches the relevant safety standards for this type of swing. Had that standard been complied with, the plaintiffs say the swing would have been some distance higher, and this would have entirely avoided the accidents.

Evidence in the High Court

4. It was common case between the parties that the relevant safety standards for playground equipment such as the swing involved in these accidents were BS EN 1176 and BS EN 1177. These standards specify that the minimum ground clearance at rest for a bird’s nest swing is 350mm. Ground clearance is defined in the standard as being the distance between the lowest part of the seat and the ground.

5. In the normal way, each side relied on the evidence of a consulting engineer who prepared forensic reports in relation to each accident which were exchanged pursuant to SI 391. The engineer on behalf of the plaintiffs was Mr. John Hayes, and on behalf of the defendants/respondents (hereinafter for convenience referred to as “the
Council”), Mr. Paul Twomey. During the course of Mr. Hayes’ direct evidence, the following exchange took place:

“Q. Now, you measured the height of the basket from the floor to the ground, Mr. Hayes, and photograph 3, I suppose, may assist you with regard to where you took your measurements from?

A. Yes, judge. I took my measurement – the British standard is very clear. What the British standard says, judge, is that the ground clearance is the distance between the lowest point of the seat and the ground …

A. And I measured that and I found that claims (sic) to be 187mm …

A. And I know from experience that the ground clearance, the British standard, requires minimum ground clearance. And the British standard states that the minimum ground clearance should be 350.”

6. Towards the end of Mr. Hayes’ direct evidence, the following exchange took place:

“Q. Is there any particular reason why an older person, be it an older teenager or a young adult or, indeed, a more senior adult; is there any reason why it would be unsafe to sit on this thing as a piece of furniture as such, given the right clearance? The clearance, in other words, as what you have as a minimum of 350mm; is there any – ?

A. Yes.

Q. – like contraindication to any adult person sitting on it?

A. Well, there is. Obviously if somebody like me sat on it with my size 15 foot –

Q. Yes?

A. That I am obviously at a significant risk –

Q. Alright?

A. – because I’m a big person.

Q. Yes?

A. But the standards are designed to take account of that range of ages and the range of physical attributes of those ages …

I’m obviously at a significant …

Q. And what about the question of minding a toddler, for example, or a person, two – to three year old type, if the person has to be minded on the basket as such; do you follow me?

A. Well, I cannot say whether the standards took into account that a minder might sit on the seat. But I think, you know, common sense will tell us that a child or an adult might sit on the seat to protect a two year old.

Q. Yes?

A. And in fairness to the British Standards, I have no doubt that they would have taken that into account when setting the ground clearance –

Q. Right?

A. – at 350.”

7. It was put to Mr. Hayes in cross-examination that Mr. Twomey took his ground clearance measurement from the top of the blue circular frame from which the seat netting is suspended and found it to exceed 350mm. Mr. Hayes strongly disagreed with this approach, saying that this was the wrong point from which to take the measurement and stressing repeatedly that the standard could not be clearer. Counsel for the defendants put the following question to Mr. Hayes:

“Q. So, I think we can agree that on an engineering basis, when it comes to deviation of the applicable standards, and there is agreement, judge, about the applicable standards, and that Mr. Hayes has outlined, the real difference when it comes to that standard is from what point you take the measurements. You’ve measured it from the bottom of the net and the defendant’s engineers have measured it from the top or the bottom of the blue frame?

A. The purpose of the British Standards, judge, is to eliminate the risk of entrapment, that’s between the ground and whatever part of the piece of equipment is going to cause the entrapment. I cannot see how you can interpret the wording in that way when it’s clear from the standard what one has to measure.”

8. Mr. Hayes’ cross-examination concluded with the following discussion:

“Q. Well, just to summarise, I suppose, the defence position on the engineering evidence in relation to whether or not there has been a technical discrepancy between the clearance as recommended by the standards and the equipment as measured really depends on where you measure from and it will be the defence case that the only sensible point from which to measure is from the blue circular frame; you disagree with that, because of the wording of the standards?

A. The standard couldn’t be clearer.

Q. And irrespective of compliance with those standards, if we put that aside for a moment, I suggest to you that the ground clearance that you have identified from the bottom of the netting had nothing whatsoever to do with this accident and that the only relevant consideration has to be the clearance from the frame to the ground?

A. Well, the first part of the question is a matter for the court.

Q. Alright?

A. The second part of the question, I repeat, I don’t share that view. It’s very simple, the British standard could not be clearer. The ground clearance is measured from the lowest part of the equipment to the ground. If the bottom line, in my view, is if the British standard requirement had been met, this lady could not have caught her leg. The accident couldn’t have happened.”

9. It is relevant to note that, although it was put to the plaintiff, at no time during the course of the cross-examination of Mr. Hayes was it suggested that it was inappropriate for an adult to sit on the swing with a toddler, or that it was designed for use by children only, or that the concluding part of Mr. Hayes’ direct evidence referenced above was incorrect.

10. Mr. Twomey’s evidence was, as in his report, to the effect that the 350mm ground clearance of the swing was to be measured not, as Mr. Hayes thought, from its lowest part but rather from the rigid frame, which was the main point of difference between the engineers. The following question was put to Mr. Twomey in cross-examination:

“Q. – But I have to suggest to you that irrespective of what you think is appropriate, what you think is appropriate does not comply with the plain language of the British standard; would you go that far with me?

A. No, because this playground was assessed when it was installed.”

11. As will subsequently become apparent, there is some significance in that answer of Mr. Twomey insofar as he appears to place reliance in reaching his conclusions on the fact that an earlier assessment of the playground was undertaken when it was installed which he took to be confirmation that the height of the swing in question did in fact comply with the relevant standards.

12. It is relevant to note also in relation to Mr. Twomey’s evidence that at no time did he suggest that the swing was not designed for adults. While he did say at the conclusion of his direct evidence that he did not think it was appropriate for an adult to use the swing, he gave no reasons for this conclusion.

13. Mr. Twomey referred to, and took photographs of, a notice that was posted in the playground which included the following:

“This playground is for the use of all children 12 years and under …

Children must be accompanied and supervised by a responsible adult.

Adults must be accompanied by a child…”

14. Mr. Twomey provided two reports which were put in evidence. He does not suggest in either of these reports that the swing was not designed for adults. In the second report, he refers to the sign, saying:

“There is clear signage that this playground and this equipment should not be used by an adult but for the purposes of my report I did take dimensions with an adult.”

15. In his first report, Mr. Twomey referred to the fact that many inspections had been carried out of the playground. In particular, under the heading “Installation”, Mr. Twomey in his first report says:

“ROSPA (Royal Society for the Prevention of Accidents) carried out a post-installation inspection on the 27th August 2009. I am in receipt of that report.

There are no issues highlighted by the inspector with regard to the frame.

Specifically, the report states that the dimensions are correct and that it complies with the standards EN 1176 and EN 1177.”

In his concluding comments, Mr. Twomey again refers to this:

“The playground is certified by ROSPA and is inspected regularly by a ROSPA approved engineer with Tipperary County Council.”

16. Mr. Twomey’s second report followed a further inspection of the playground and reiterates his previous conclusions. Again, in this report he says:

“ROSPA

My previous report refers. This playframe was inspected and installed by ROSPA approved contractors and was inspected post installation and found to comply with BS EN 1176 and 1177.”

17. In his concluding comments, he says:

“The playground was inspected by ROSPA and approved by them and it has continued to be used for many years without any adjustments.”

18. Although an attempt was made in the course of Mr. Hayes’ cross-examination by counsel for the defendants to put to him the findings of the ROSPA report referred to by Mr. Twomey, objection was taken to it on the basis that no witness from ROSPA was going to give evidence and accordingly it was not pursued further.

Judgment of the High Court

19. Although the judgment is lengthy and detailed, insofar as liability is concerned, I think it fair to say that the trial judge was unimpressed by the fact of adults bringing claims for using an apparatus in a playground, which he held was designed for children under 12. At the outset, the judge said that his judgment proposed to consider the “chilling effect” of claims such as these on the provision of play or adventure facilities for children. Setting out the background, the judge said that “the swing in question is designed for children”. He also referred to the first line of the notice mentioned above which states:

“This playground is for use of all children 12 years and under”

The judge said that the plaintiff’s engineer provided evidence that this swing was designed for children from age 1 up to adolescence.

20. This is a clear finding of fact by the trial judge which is repeated throughout his judgment. The judge appears to have extrapolated from his finding that the swing was designed solely for children rather than for children and adults accompanying such children. At para. 37 of the judgment, the judge said:

“Similarly, in this case, ‘reasonable adults of normal intelligence’ know, or should know, not to use swings designed for children.”

He subsequently clarified this (at para. 38), as being designed for use by children under 12. He reiterated this finding at para. 44 in considering the contention of the plaintiffs that the swing was too low:

“44. Yet the purpose of these changes sought by the plaintiffs to a child’s swing, to the detriment of the children who use it, would be to prevent it becoming an entrapment risk for persons such as the plaintiffs, i.e. adults, for whom the swing was not designed and where no evidence had been provided of any entrapment risk to children using the swing.”

21. In relation to the dispute between the two sides’ engineers as to where was the appropriate point on the swing from which to measure the ground clearance, the judge noted that the British Standard specified that the clearances to be measured “between the lowest part of the seat or platform and the playing surface when the swing is at rest.”

22. In considering which evidence to prefer, the judge referred to the evidence of Mr. Twomey in the following terms:

“27. However, the defendant’s engineer points out that this is not a traditional swing and that the most appropriate place to measure the clearance is from the hard rim, since this is the point from where one gets on or off. He supports this interpretation by referring to the revisions to the BS made in 2017 (EN 1176 – 2:2017). While this revised BS did not apply at the relevant time of the accidents, he relies on this change to support his interpretation of how the original BS should be applied to non-traditional swings, such as the bird’s nest swing. This revised BS provides that the clearance (which have increased to 400mm in the revised BS) is to be taken from the ‘underside of the rigid part of the seat in its most onerous position’ ”.

23. The judge went on to prefer the evidence of the defendant’s engineer for the following reasons:

“30. It seems to this court that there is logic in the interpretation proposed by the defendant’s engineer, such that the appropriate point from which to measure the clearance is from the bottom of the rigid part of the swing, for the simple reason that this is the point at which a child exits the swing. If the clearance is measured from this point, then the swing is in compliance with the BS standard. That is the end of the personal injuries claim, since there was no breach of duty/negligence on the part of the Local Authority, as it complied with the BS. However, even if this court is wrong in that regard, for the reasons set out below, it finds that, in any case, the Local Authority has not breached any duty, statutory or otherwise, to the plaintiffs.”

24. The judge then identified a range of reasons why the claims should be dismissed even if the local authority had not complied with the relevant standard. Without setting these out exhaustively, they included that common sense would suggest that an adult should not use a child’s swing, a finding of negligence would have a negative social effect on children’s playgrounds and a chilling effect against a provider of play activities. The judge considered what he thought to be other policy issues militating against a finding of liability in this case which included the necessity to protect the freedom of the individual and the necessity not to deny children the joy of playing. His conclusion on liability was as follows:

“70. This court has concluded that there was no breach of duty by the Local Authority as it did in fact comply with the relevant BS standard for the height of swings. However, even if this was not the case, it is not necessary for this court to determine whether in fact there was a deviation in relation to the swing, from the British standards applicable at the time. This is because there is a complete absence of causation between the alleged breach of duty (being the failure to raise the swing) and the occurrence of the accident. This is because the ‘legal cause’ of the accident was not the fact that there was an alleged shortfall in the clearance between the child’s swing and the ground, making it unsafe for use by the plaintiffs, who are both adults. Rather, the legal cause of the accident was that two adults chose, on several occasions, to use equipment which was designed for children and which (as stated implicitly by the terms of the notice but also based on common sense), was not for use by adults.”

The Appeal

25. The original notice of appeal in essence complains that the trial judge was in error in concluding that the swing in question complied with the British standards and further that the plaintiffs were prohibited from using it when accompanying a small child. However, subsequent to the service of the notice of appeal, a new development occurred. In February 2022, the plaintiffs brought a motion before this Court for leave to adduce new evidence on these appeals. The application was grounded on the affidavit of the plaintiff’s solicitor, Thomas O’Mahoney. In his affidavit, Mr. O’Mahoney avers that after the conclusion of the trial in the High Court, Ms. O’Mahoney became aware that the Council may have had in its possession a relevant safety report in relation to the swing which had not been previously disclosed.

26. Arising from this information, Ms. O’Mahoney submitted a freedom of information request to the Council seeking a copy of any such report. In response, the Council provided Ms. O’Mahoney with a document entitled “RPII Annual Playground Inspection Report” dated the 24th June, 2020, one year prior to the hearing of the case in the High Court. This report emanated from an entity called Play Services Ireland (“PSI”) and is in tabular format. It comprises an assessment of four pieces of apparatus in the Council’s playground, the third of which is the basket swing the subject of these proceedings.

27. The table comprised in the report is presented as an assessment of, inter alia, the swing by reference to its compliance with BS 1176. In the column under “Compliance With BSEN 1176 Y/N” is entered the initial “N”. “Y/N” means yes or no and the entry “N” signifies that the PSI assessment concluded that the swing did not comply with BS 1176. In a further column in the table entitled “Actions”, signifying actions to be taken on foot of the findings of the report, the author states, inter alia, “Raise basket by 300mm”.

28. In other words, the conclusion of the author of the PSI report was that in order for the basket swing to comply with BS 1176, it required to be raised by 300mm. A further column in the report is headed “Item Priority” and under this is entered the number “2”. The footnotes to the report show that a designation of “2” means that the identified action is required within one month.

29. Under the heading of “The Use of Swings by Carers” Mr. O’Mahoney in his affidavit refers further to a document called the Yeats Playgrounds Brochure, which he exhibits, and which appears to suggest that swings of the type involved in this accident are designed to be used by adults and children to swing together, promoting social and interactive play and which “allows a child to sit or lie with support from a family member or carer.” This document however was not the subject of the plaintiff’s application for leave to adduce new evidence.

30. A replying affidavit was sworn by the Council’s solicitor, Finbarr Tobin in which Mr. Tobin discloses the fact that PSI had actually provided three reports on the playground dated respectively 2018, 2019 and 2020, the last only of which was received by Ms. O’Mahoney pursuant to her FOI request. In his affidavit, Mr. Tobin confirms that neither he, his instructing insurers nor Mr. Twomey had any awareness of the existence of these reports prior to the hearing in the High Court. Mr. Tobin explains in his affidavit that arising from the issues raised by the plaintiff in the motion, he requested the Council to carry out its own internal enquiries and as a result, it emerged that the “Corporate Services” section of the Council which deals with claims of the kind arising here was unaware of the existence of these reports as they were provided to the “Community and Economic Development” section of the Council, an apparent case of the left hand not knowing what the right was doing.

31. By order of Costello J. of the 11th March, 2022, the court ordered that the three reports be adduced as evidence at the hearing of the appeals.

Discussion

32. There were two central features to the trial judge’s decision on liability. The first was his conclusion that the swing complied with the BS. The second was that even if it did not comply, the cause of the accident was not such non-compliance but rather the decision of each adult plaintiff to sit on a swing designed solely for children under 12.

33. Taking first the proposition that the swing complied with the BS, that conclusion was arrived at by the trial judge preferring the evidence of the Council’s engineer as to the correct “interpretation” of the BS. However, I cannot accept the proposition that the British Standard in question fell to be somehow construed as though it were in some sense ambiguous. As Mr. Hayes said repeatedly in the course of his evidence, it could not be clearer. The standard stipulates that ground clearance is the distance between the lowest part of the seat and the ground. There can be no ambiguity about this.

34. The fact that Mr. Twomey may have considered that a more appropriate place to carry out the measurement is from the hard rim of the swing is entirely immaterial. Further, his reliance on a subsequent 2017 BS as a justification for this approach seems to me to be entirely misplaced. The fact that the new BS substituted a different measurement to be taken from a different place, i.e. the “underside of the rigid part of the seat in its most onerous position” – (whatever that may mean) – cannot conceivably provide a justification for applying the same formula to the earlier standard which provides for something entirely different. In effect, Mr. Twomey’s evidence was that the BS does not mean what it says. That was, with respect, not a credible position to adopt.

35. In considering the competing views of experts, it is incumbent on a trial judge to analyse the views of each expert and come to a reasoned conclusion by, inter alia, the application of logic and common sense – see James Elliott Construction Limited v Irish Asphalt Limited [2011] IEHC 269 per Charleton J. at para 12, approved by the Supreme Court in Donegal Investment Group plc v Danbywiske & Ors [2017] IESC 14. That analysis by the trial judge should more readily facilitate review by an appellate court. Thus Clarke J. (as he then was) said in Danbywiske:

“5.5 However, as Charleton J. pointed out in Elliott, an important part in the assessment of any evidence is the application by the trial judge of logic and common sense to the testimony heard. That approach is particularly relevant in the context of expert evidence. Where experts differ the position adopted by the other side will be put to each of the expert in cross-examination. Their reasons for maintaining their view can be examined in some detail. The trial judge can, therefore, assess whether the reasons given by one expert or the other stand up better to scrutiny.

5.6 While it is true, therefore, that the assessment of all evidence, whether expert or factual, requires both the application of logic and commons sense, on the one hand, and an assessment of the reliability or credibility of the witness gleaned from having been in the courtroom, on the other, it may be fair to say that it is likely that a decision based on expert evidence will be significantly more amenable to analysis on the basis of the logic of the positions adopted by the competing witnesses and the assessment of the trial judge of their evidence on that basis.

5.7 Precisely because a decision to prefer the evidence of one expert over another is likely to be influenced, to a much greater extent than might be the case in respect of factual evidence, by the rationale put forward by the competing witnesses, there may be somewhat greater scope for an appellate court to assess whether the reasons given by a trial judge for preferring one expert over another can stand up to scrutiny. That being said it must remain the case that an appellate court should show significant deference to the views of a trial judge on the question of findings based on expert evidence because the trial judge will have had the opportunity to see the competing views challenged and scrutinised at the hearing.”

36. It is of course fundamental to the assessment of expert evidence, as with any other evidence, that the trial judge must engage with the competing positions of the witnesses before coming to a reasoned conclusion as to why one expert’s view is to be preferred over the other. It is not always necessary to provide an elaborate analysis, but it should at least be sufficient to enable the parties and an appellate court to understand the reasons why one expert’s view was preferred over the other.

37. What appears to be absent from the analysis in this case is any meaningful assessment of the evidence of Mr. Hayes and, in particular, why it was viewed by the judge as being incorrect. Insofar as the judge believed there was logic in the approach of Mr. Twomey, that again appears to be no more than an acceptance that it might be a better idea to measure the ground clearance from a point different to that actually specified in the standard. Again, that entirely misses the point and, in my view, any proper analysis of the expert evidence in this case could not have concluded other than Mr. Twomey’s evidence on this issue was simply not credible.

38. In the evidence highlighted above, the evidence of Mr. Twomey concerning compliance of the swing with the BS appears to have been influenced to some extent by the fact that he had sight of an installation report by ROSPA who appear, on Mr. Twomey’s understanding of it, to have accepted that the swing did in fact comply with the standard. His answer in cross-examination above appears to confirm this. It of course remains to be seen whether his response, and indeed his views generally, would have been as he expressed them to be had his client, the Council, provided him with all the relevant documents, including the later discovered reports, which would have informed his view. As I have already noted, Mr. Twomey appeared in both his reports and his oral evidence to place some emphasis on the fact that the unseen ROSPA report had concluded that the swing complied with the BS, which he considered lent support to his “interpretation” of the BS.

39. Most importantly however the newly adduced evidence on this appeal appears to me to be at a minimum, capable of having had a very significant, if not indeed decisive, effect on the judge’s conclusions about compliance with the BS. Had this evidence been available, it seems to me that it would have provided very fertile ground for cross-examining Mr. Twomey with a view to significantly undermining the views he expressed as to the correct method of measuring the ground clearance of the swing and consequently, its compliance with the BS.

40. Accordingly, the conclusion arrived at by the trial judge that because the swing did in his view comply, “that is the end of the personal injuries claim” cannot be sustained. However, the judge went on to hold that even if he were wrong about that, the claim would still fail for the second reason he identified, namely that these adult plaintiffs should not have been using a swing exclusively designed for children under 12. That conclusion appears to me to have been entirely unsupported, not just by any credible evidence at the trial, but any evidence at all.

41. As I have endeavoured to show, no witness gave evidence to the effect that this swing was designed exclusively for young children. The nearest Mr. Twomey came was the statement in his report referred to above to the effect that there was clear signage that “this playground and this equipment should not be used by an adult”. Insofar as that amounted to Mr. Twomey’s interpretation of the meaning of the signage at the playground, it is to my mind plainly wrong. While the playground sign stated that the playground was for the use of all children of 12 years and under, it also stated that all such children must be accompanied and supervised by a responsible adult. The Council accordingly expected and required all children in the playground to have an adult with them to supervise their play activities, which of course included going on the swing.

42. What the Council presumably sought to discourage and prevent was people over 12 years of age such as teenagers and adults using the playground on their own without being accompanied by a young child. That, while perfectly understandable, is entirely different from suggesting that an adult with a toddler in her care was prohibited by the notice from going on the swing with the toddler to protect the child. It appears to me quite wrong to suggest that this latter activity was something that was prohibited by the notice posted in the playground. Insofar therefore as Mr. Twomey’s evidence suggested that the sign meant otherwise, it was patently incorrect.

43. There was no real dispute between the parties as to the applicable legal principles. It was conceded by the Council that ordinary common law principles of negligence were applicable as well as the Council’s statutory duties pursuant to s. 4 of the Occupiers Liability Act, 1995. The plaintiffs were properly regarded as recreational users as defined by the statute and were owed a duty by the Council to maintain the playground in a safe condition. In Ryan v Office of Public Works [2015] IEHC 486, the High Court (Murphy J.) observed:

“Once installed however, a properly constructed playground must be maintained in a safe condition by the occupier. Injury resulting from a failure to do so can render the occupier liable under ordinary negligence principles, which apply pursuant to s. 4(4). Thus, if a play unit collapses, injuring a user because of erosion or missing bolts or other maintenance failure, the injured recreational user can sue for breach of the duty of care and does not have to establish recklessness on the part of the occupier.”

Conclusion

44. Having regard to the foregoing, it seems to me that the judge’s dismissal of the plaintiffs’ claims was erroneous. While this Court was invited by the plaintiffs to substitute its own findings on the liability issue for those of the High Court, it seems to me that such a course of action is not open where the new evidence put before this Court was never the subject of any consideration by the High Court. In those circumstances, it appears to me that the only course open is for this Court to direct a retrial of both actions in the High Court.

45. Because the claims were dismissed, it was obviously unnecessary for the trial judge to assess damages. The trial judge did however embark obiter on an extensive analysis of what he considered to be the appropriate principles to be applied in the assessment of damages for personal injuries. The trial judge also purported to express views on the level of damages to which the plaintiffs would be entitled had their claims been successful. As I have said, all of these observations are clearly obiter and it is unnecessary for me to express any view on them other than to say that the proper approach to the assessment of damages for personal injuries has been the subject of many judgments of this Court in recent years. However, having regard to the views on damages clearly expressed by the trial judge, it seems to me desirable that the retrial of these claims should proceed before a different judge of the High Court.

46. I would therefore allow these appeals and direct accordingly.

Costs

47. With regard to costs, my provisional view is that as the appellants have been entirely successful, they should be entitled to their costs. It seems to me that even in the absence of the new evidence, the appeals would still have succeeded and that the plaintiffs are therefore entitled to their costs. In my view, they are so entitled for the additional reason that a retrial would in any event have been necessary by virtue of the failure of the Council to properly instruct its engineer with the three PSI reports which, although they post-dated the plaintiffs’ accidents, would clearly have been highly material to his consideration of the relevant British standards. It was entirely misleading to furnish Mr. Twomey with a ROSPA report which appeared to support his conclusions and upon which he placed reliance, without also furnishing him with the full suite of subsequent reports that came to a different conclusion. For the same reason, I am satisfied that the plaintiffs are entitled to the costs of the motion to adduce new evidence.

48. If the Council wish to contend for a different costs order, it will have liberty to so inform the Court of Appeal Office within 14 days of the date of this judgment and a short supplemental hearing will be arranged. In default of application, the order proposed will be made.

49. As this judgment is delivered electronically, Edwards and Collins JJ. have authorised me to record their agreement with it.

Result: Appeals Allowed

Morrissey v HSE

Ruth Morrissey and Paul  Morrissey v Health Service Executive, Quest Diagnostics Incorporated and Medlab Pathology Limited
[Appeal Nos: 2019/120, 2019/121 and 2019/122]

Supreme Court

19 March 2020

unreported
[2020] IESC 6
Mr. Justice Clarke

March 19, 2020

JUDGMENT
1. Introduction
1.1 The tragic circumstances underlying this appeal must be acknowledged. The first named plaintiff/respondent (“Ms. Morrissey”) is terminally ill from cancer. She had undergone screening in accordance with the National Cervical Screening Programme (“CervicalCheck”) in August 2009 and again in August 2012. In both instances, her smear test was reported as negative for abnormalities and she was provided with a clear result. However, in May 2014, Ms.  Morrissey attended at her G.P. following symptomatic bleeding and was referred for further testing. A biopsy and an MRI scan subsequently disclosed the existence of cervical cancer.

1.2 Following this diagnosis, the 2009 and 2012 smears provided by Ms. Morrissey were audited and it was reported that the original results provided in respect of both tests were incorrect. By 2015, the results of the audits had been communicated to CervicalCheck. However, their results were not disclosed to Ms.  Morrissey until mid-2018, when Ms.  Morrissey herself made inquiries as to whether there had been an error in her case.

1.3 Ms. Morrissey and the second named plaintiff/respondent, her husband, (“Mr.  Morrissey”, and collectively, “the  Morrisseys”) commenced these proceedings thereafter. The first named defendant/appellant (“the  HSE”) is, of course, the body charged with the provision of health services in Ireland and, in the particular context of these proceedings, with the promotion of the CervicalCheck scheme. It will be necessary to go into the precise role of the  HSE in due course, for its legal obligations in respect of CervicalCheck are one of the issues which will need to be addressed.

1.4 From 2008, the HSE contracted out the testing of samples to various multinational firms. The second named defendant/respondent, Quest Diagnostic Incorporated (“Quest”), carried out an examination of the sample taken from Ms.  Morrissey in August 2009, in one of its laboratories located in Grand Rapids, Michigan in the United States. The third named defendant/respondent, Medlab Pathology Limited (“Medlab”), tested the sample provided in August 2012 in one of its laboratories situated in Co. Dublin.

1.5 The High Court (Cross J.), in a judgment delivered on 3 May 2019 (Morrissey & anor v. Health Service Executive & ors [2019] IEHC 268), gave judgment in favour of the Morrisseys in the sum of €2,152,508 against all three defendants and an additional sum of €10,000 in nominal damages as against the  HSE in respect of its failure to notify Ms.  Morrissey of the results of the audits of her earlier smear tests.

1.6 Each of the defendants/appellants sought leave to appeal directly to this Court. An oral hearing ensued. For the reasons set out in a judgment of this Court (Morrissey & anor v. Health Service Executive & ors [2019] IESC 60), leave to appeal was granted although the issues became somewhat more confined in circumstances described in that judgment.

1.7 It is, therefore, appropriate to set out the basis on which leave to appeal was granted, for that defines the parameters of this appeal. Before this Court, it was outlined that there were a number of other cases pending before the High Court which have arisen in a similar factual context to that of these proceedings. It was also stressed that the work of the CervicalCheck Tribunal, as established by law in July 2019, will involve the assessment of legal liability and will therefore require the application of the same legal test as that determined in the courts. Thus, it was clear that the Tribunal would be significantly constrained in progressing its work if there remained doubt about the proper test to be applied in determining legal liability. While it is usually appropriate that an appeal is heard in the Court of Appeal, where narrowing and clarification of the issues of importance can take place, here this Court held that the question of the standard of care to be applied in screening cases met the constitutional threshold for leave to appeal generally and, having regard to the urgency which attends its clarification, also met the additional criteria necessary to grant leapfrog leave.

1.8 In respect of whether the other grounds of appeal urged by the defendants justified a grant of leapfrog leave, it was held that the interests of justice required granting that wider leave. It should be noted that both Quest and Medlab had agreed at the oral hearing to drop certain grounds of appeal as advanced in their applications for leave. At para. 4.7, the Court held:-

“Considering the standard of care grounds in the abstract, while issues concerning some of the findings of the High Court remained alive before the Court of Appeal, would be highly unsatisfactory. I am also satisfied that it would be unfair to the defendants/appellants to require them to abandon all of the other grounds as the price for obtaining leapfrog leave. Most of those grounds are sufficiently closely connected with the standard of care grounds in any event such that this Court is likely to need to at least get into the facts relevant to those grounds to some extent. Insofar as the causation and, in the case of Medlab, quantum grounds are raised, it seems to me that these issues can most conveniently be dealt with in the same appeal.”

2. The Broad Issues
2.1 Before setting out the broad categories of issue which arise on this appeal, it may be useful to make one general observation. At a superficial level, it might be thought that a case such as this ought to be relatively straightforward. If a person gets the all-clear as a result of a screening process and subsequently develops the disease which the screening process was intended to detect, then it might be felt that it must be fairly obvious that someone was at fault. However, that does not necessarily follow.

2.2 I would emphasise that not all of the matters which I am about to note will necessarily arise in each case and all of them do not arise in this case. However, there are a range of reasons why it might, at least in theory, be the case that a person who obtained a clear result on a screening process might subsequently be diagnosed with the relevant disease in the absence of any negligence by any party.

2.3 First, there will almost always be some period of time between the test which led to a clear result and the diagnosis of the disease in question. Depending on the length of that time and the likely progress of the relevant disease, there may, in some cases, be a possibility that whatever the relevant indicators for the disease in question are, they may not have been present at the time of the screening process but have only developed at a later stage. Next, in the context of a screening process such as that with which this Court is involved on this appeal, it is always possible that a sample taken may not contain any of the type of suspicious material which ought to have given rise to a result suggesting that the test was not clear. In other words, suspicious material might not actually have been captured during the taking of the sample, or at least captured in a sufficient quantity that it would show up during the screening process. Third, it should be noted, for reasons which will be addressed in this judgment, that even screening processes which operate at the very highest standards can give rise to different results by competent screeners. In addition, a retrospective review of the screening process after someone has been diagnosed may well give different results, possibly influenced by the difficulties encountered with hindsight. It is thus possible, as the trial judge in this case found, that a competent screener exercising ordinary care might give a clear result, even in circumstances where it might transpire with the benefit of hindsight that there could have been suspicious material on the slide. For these and doubtless other reasons, it is not simply a case of inferring from the fact that someone obtained a clear result but subsequently was diagnosed with the relevant disease that there was necessarily negligence on someone’s part. It follows that the assessment of whether there was negligence in any particular case will involve findings of fact by the trial judge based on evidence. That process may well be both difficult and complex and each case will, necessarily, depend to a significant extent on its own facts.

2.4 Against that background, I should start by noting that, at the oral hearing, counsel on all sides were asked to agree that five sets of issues arose between the parties. I did not understand there to be any disagreement about that proposition, although there are undoubtedly sub-issues potentially arising in some, if not all, of the categories.

2.5 The first issue concerned the proper approach to negligence in a case involving medical screening such as this. As will become apparent, the trial judge, relying on the case law of the United Kingdom, had applied what he said was an “absolute confidence” test, although it is important to understand that the trial judge was quite specific about the precise aspects of the case to which that test was to be applied. The potential question which arose was as to whether the trial judge could be said to have applied a test differing from the established case law of the courts in this jurisdiction as regards the legal standard of care in medical negligence cases, which finds its clearest example in Dunne (an infant) v. National Maternity Hospital [1989] I.R. 91. However, in the course of the oral hearing, it became clear that there was no significant dispute between the parties on this question. However, I am mindful of the fact that a significant amount of public comment, some of it unfortunately misinformed, followed from the judgment of the High Court and I do, therefore, propose setting out the position in the hope of bringing some clarity to a potentially controversial issue.

2.6 Second, Quest raised certain points concerning the findings of the trial judge which led to a conclusion that it was negligent in the way in which it carried out its functions. In fairness to counsel for Quest, it was not argued that there was no evidence from which the trial judge might have reached the conclusions which he ultimately did in this case. However, it was said that there was a significant failure of the trial judge to properly engage with certain aspects of the defence case, such that the finding in negligence against Quest should be set aside.

2.7 Third, there were similar issues raised by Medlab concerning the finding of negligence against it. In that context, it is of some relevance to note at this stage that the finding against Quest related to the reading of the slides concerned. It was said that had such reading been properly carried out, a negative result should not have ensued. A like claim was made against Medlab, although it is of some importance to note that the trial judge rejected that aspect of the claim against that party. However, it is clear that there may be circumstances in which it is inappropriate to give a result in respect of a particular screening where the cell count of the relevant sample is inadequate to allow for its proper assessment. The finding of negligence against Medlab related to what was said to be negligence in assessing the smear in question as being adequate for such assessment. However, points are put forward on behalf of Medlab to suggest that, as in the finding of negligence against Quest, there was a failure to properly engage with certain aspects of the case which it put forward in that regard.

2.8 Fourth, there were issues raised by the HSE concerning the finding of the trial judge that the  HSE was liable in negligence arising from the manner in which both Quest and Medlab carried out their tests. The trial judge found that the  HSE was primarily liable in respect of the way in which the tests were carried out but also held that the  HSE was vicariously liable for the negligence found against the two laboratories. The  HSE appealed against both of those findings.

2.9 Fifth, and finally, Medlab raised some questions concerning particular elements of the damages awarded by the trial judge. Neither of the other defendants has raised questions as to damages in their appeals.

2.10 However, in order to properly understand both the approach of the trial judge and, more specifically, many of the issues which arise before this Court, it is appropriate to set out in a little detail the history of CervicalCheck and, in particular, the way in which it works in practice.

3. CervicalCheck
3.1 In 2008, the National Cancer Screening Service (“the NCSS”) was responsible for the establishment of the CervicalCheck programme, which provides free smear tests for women between the ages of 25 and 60 in order to regularly screen for early signs of the development of cervical cancer. In 2010, the Board of the NCSS was dissolved and its functions were assumed by the HSE, as part of its National Cancer Control Programme.

3.2 From 2008, the testing of the samples was contracted out by CervicalCheck to various multinational firms, including Quest and Medlab, which provided a faster service than that of Irish labs. These contracts provide that the tests are to be carried out in accordance with the NCSS Guidelines for Quality Assurance in Cervical Screening, which require the use of the Bethesda System for Reporting Cervical Cytology (“the Bethesda System”).

3.3 As part of the programme, audits are conducted in respect of the screening histories of those patients who receive a diagnosis of cervical cancer. Laboratories conduct a review of previous smears and their results where cancer is subsequently detected. The purpose of these audits is educational, for the screeners and the laboratory to look into the quality of the testing and to make any improvements necessary.

3.4 Smear tests are not diagnostic tests, but rather are screening tests to determine whether the cells examined are healthy or whether they may have been contaminated by the HPV virus. Where high-risk HPV is carried in the body for some two to three years, a pre-cancer will develop. This pre-cancer may be high grade or low grade. If a significant number of high grade lesions are not detected and treated, this will progress and develop into an invasive cancer. The invasive cancers are typically either squamous cell tumours or glandular cell tumours. It was accepted in evidence by the High Court that such pre-cancer will usually progress to invasive cancer over an eight to twelve-year period of time.

3.5 Samples of cells are taken from the cervix by a patient’s GP, using a system known as Liquid Based Cytology, which are then reviewed by a laboratory. In the lab, a slide is made from the sample using the ThinPrep Imaging System. The slide is then examined by a qualified cytoscreener, who must first assess the sample for the adequacy of its cell count. For a sample to be considered adequate, as required by the Bethesda System, there must be a minimum number of 5,000 well-visualised squamous cells. Most samples will clearly be seen to be adequate on a quick overview, but in the event of any doubt, the slide must be assessed for adequacy using the ThinPrep method prescribed by the Bethesda system.

3.6 The screener then examines the cells for abnormalities at various magnifications. If any abnormal cells are detected, irrespective of the adequacy of the sample, the slide must be classified as abnormal. The terms of the contracts agreed between CervicalCheck and both Quest and Medlab provided that laboratories were to screen samples using one of the following processes; a full manual primary and secondary screening; a full manual primary screening and rapid review rescreening; a full manual primary and rapid preview screening; or one of the above options with automated-assisted screening in place of manual screening.

3.7 The apparently uncontested evidence before the High Court suggested that the practice of the laboratories operated by Quest at the relevant time in respect of those slides which were reviewed under its contract with CervicalCheck was that two full manual screenings of each slide took place. All parties agreed that the reports of the Scoping Inquiry into the CervicalCheck Screening Programme, as conducted by Dr. Gabriel Scally (“the Scally Reports”), could also be considered by the Court. The Scoping Inquiry was established by the Government in 2018 in order to examine and establish the facts surrounding the issues which had recently come to light in respect of the operation of CervicalCheck. I do note that a somewhat different description of these procedures appears in the final Scally Report, published in September 2018. I should emphasise that a court can only consider facts based on the evidence presented to it. It may well be the case that, for the purposes of these proceedings, nothing turns on the difference between this aspect of the evidence presented to the High Court and the relevant description contained in the Scally Report.

3.8 However, it is again important to emphasise that, where a difference on the facts is potentially relevant to the outcome of the case, it is important that sworn evidence is presented in respect of the competing positions and that any relevant party is given the opportunity to test the competing evidence before the judge. It is also of particular importance to emphasise that the function of a trial judge is not the same as the function of a person preparing a report. The trial judge is only required to make findings of fact in relation to questions which are relevant to determining legal liability. Trial judges sometimes specify additional facts by way of background or to provide context, but the precise accuracy of such facts is only important where the facts in question have at least the potential to influence the outcome of the case. In that context, I would draw attention to the observations of this Court on the question of whether it is necessary to correct factual errors which are not material (see, in that regard, the judgment of this Court in Walsh v. Minister for Justice and Equality [2019] IESC 54).

3.9 Be that as it may, it was found by the trial judge that it is the practice of Medlab that a primary manual screen is first conducted by a cytoscreener. If this first screen highlighted any areas of suspicion, then a full manual rescreening is conducted. However, if no areas of suspicion are detected by the first screener then there is no manual rescreening, but rather an automated analysis of the sample is conducted by a machine using the ThinPrep Imaging System. If there are any areas of suspicion, these are highlighted on the slide using a marker, and the slide is sent to a pathologist in the laboratory.

3.10 The results of the tests can be graded by a screener using either the Bethesda System of classification or the British Society for Clinical Cytology CIN terminology, both of which result in the same consequences for the patient. The system used by the laboratories contracted to CervicalCheck is the Bethesda System. The grades to which a test should be marked, according to the Bethesda terminology are; unsatisfactory/inadequate sample, negative/NAD (no abnormality detected), ASC-US (atypical squamous cells of undetermined significance), LSIL (low grade squamous intraepithelial lesion), HSIL (high grade squamous intraepithelial lesion), squamous cell carcinoma, AGC/AGUS (atypical glandular cells/of undetermined significance), glandular neoplasia or broken/damaged/expired slides. The categories of ASC-US or AGC/AGUS denote borderline abnormalities in squamous and glandular cells, respectively. These do not of themselves denote either cancer or pre-cancer but do represent a non-negative finding and require at least that a patient is rescreened within a short number of months.

3.11 The laboratories are obliged, under the terms of their contracts with the HSE, to record the appropriate treatment alongside the results of the screening. If the test finds that the cells are healthy, then the patient is referred for routine repeat examination, which is usually every three years. Where the laboratory finds the cells to be abnormal, then depending upon the result, the patient is either sent for early repeat screening or else directly to the patient’s doctor for colposcopy and, if necessary, other treatment. In the High Court, it was held that the evidence of all relevant experts was that in the event of any ambiguity, the lab ought to report the cells as abnormal.

3.12 It is clear that the screening is not infallible. For example, actual abnormal cells in the patient’s body may not have been located in the sample. In addition, as noted by the High Court, there is also “room in the analysis for genuine and non-negligent divergence as to whether particular cells are negative or potentially alarming”. One study accepted in evidence before the High Court, which reviewed the audits of over 6,000 English patients of the NHS Cervical Screening Programme who had been diagnosed with cervical cancer, indicated that at least 44% (or 55%, depending on whether samples labelled as ‘inadequate’ are counted) of their previous samples were incorrectly marked as normal at first screening. It bears noting that this statistic does not indicate that there is anything close to a 50% chance of the results of a screening test being wrong. The lives of many women have been saved as a consequence of the detection of abnormalities in the course of such screening programmes. It should be emphasised that this study refers to an audit of the prior tests of the small proportion of patients who had subsequently received a diagnosis of cervical cancer. In order to ascertain whether there has been any negligence or breach of duty in any case, each screening test would have to be assessed individually.

3.13 Against that background, it is appropriate to turn to the history of the Morrisseys’ engagement with CervicalCheck.

4. The Facts of this Case
4.1 Mr. and Ms. Morrissey are married with one young daughter. In August 2009, Ms.  Morrissey underwent a smear test which was processed by Quest, as part of its contract with the  HSE, in its laboratory in Grand Rapids, Michigan. The sample was reported to be adequate and the result was negative for any abnormality. Ms.  Morrissey was advised to return for a routine repeat examination in three years’ time.

4.2 Ms. Morrissey’s next smear test was taken in August 2012, and processed by Medlab, in its laboratory in Co. Dublin. It was reported that the sample was adequate for assessment and that there was no evidence of the presence of new abnormal growth tissues. Ms.  Morrissey was again recommended for routine recall in three years’ time.

4.3 Following an investigation as a result of symptomatic bleeding in May 2014, Ms. Morrissey received a diagnosis of invasive squamous carcinoma of the cervix. A further smear test was carried out in 2014 following the diagnosis, which also returned a negative result. There is no suggestion that this interpretation was negligent. Surgery was required and the cancer appeared to have been treated successfully. In 2018, there was a serious recurrence of the cancer and, tragically, Ms.  Morrissey has since received a terminal prognosis.

4.4 As a result of Ms. Morrissey’s 2014 diagnosis, audits were conducted of the 2009 and 2012 smears. In September 2014, the 2009 slide was reviewed by the senior staff pathologist of Quest, who reported that the original test was incorrect and found the slide to contain borderline nuclear abnormalities, marking it AGC/AGUS. Under the heading in the report of ‘Factors likely to lead to false negative results’, nothing was inserted.

4.5 The 2012 slide was reviewed internally by the medical director of Medlab in October 2014, and this review also found that the original result was incorrect. Under the heading of “Factors likely to lead to false negative results”, the laboratory listed the fact that the sample was “scanty”, a term used to indicate an inadequate number of cells on the slide. The 2012 slide was also externally audited by an independent reviewer in 2015, who reached the same conclusion that the slide had been inaccurately read and also classed the sample as “scanty”.

4.6 The results of the internal audit of the 2009 slide and the internal and external audits of the 2012 slide were communicated to CervicalCheck by 2015. CervicalCheck advised Ms. Morrissey’s treating doctor of the audit results in June 2016. These were not discussed with Ms.  Morrissey. When national publicity in relation to another patient arose in mid-2018, Ms.  Morrissey herself made inquiries as to whether there had been errors in her case. At this juncture, she was advised of the results of the audit by her doctor, who apologised to the  Morrisseys and indicated that he simply “forgot” to tell them.

4.7 It is Ms. Morrissey’s case, as put before the High Court and again before this Court, that had the 2009 and 2012 smears been accurately reported at first, then, as a matter of probability, subsequent medical investigations would have disclosed a precancerous condition, which would have been treated successfully, and Ms.  Morrissey would not be facing the same terminal prognosis which she has now received. Each of the defendants deny liability and loss. Before the High Court, the  HSE admitted breach of duty limited to its failure to advise Ms.  Morrissey of the results of the audit, but denied loss on this basis.

4.8 It is appropriate next to turn to the judgment of the High Court.

5. The High Court Judgment
5.1 As a preliminary point, it is appropriate to draw attention to the timescale within which these proceedings operated. Clearly, having regard both to Ms. Morrissey’s medical situation and the fact that there are a large number of other similar cases pending before the courts, it was considered highly desirable that judgment should be given as quickly as possible.

5.2 Addressing the proper approach to be applied in a case involving medical screening such as this one, the trial judge considered that the legal standard of care and the factual standards and criteria to which the screener must adhere are different, although interrelated, issues. The trial judge held that the classic statement of the applicable legal standard of care in the context of medical negligence cases is set out by Finlay C.J. in Dunne v. National Maternity Hospital, at p. 109:-

“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant….”
5.3 The trial judge placed particular reliance on the decision of the English Court of Appeal in Penney, Palmer & Canon v. East Kent Health Authority [2000] Lloyds Rep Med 41 (“Penney Palmer”), a case which also considered the allegedly negligent misreading of smear tests by cytology screeners. It is apparent that the trial judge considered the approach of Lord Woolf M.R. in those proceedings to be entirely correct, and thus it is appropriate to briefly set out the relevant aspects of that decision.

5.4 In that case, the Court of Appeal expressly approved the legal test for the standard of care in screening cases, as had been stated in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582. This, together with Bolitho v. City and Hackney Health Authority [1988] A.C. 232, was considered by Cross J. to be the English equivalent of the Dunne test. Lord Woolf M.R. then stated the following in relation to the questions to be addressed in the context of determining the negligence of a medical screener, at para. 27:-

“… the Bolam test has no application where what the judge is required to do is make findings of fact. This is so even where those findings of fact are the subject of conflicting expert evidence. Thus, in this case there were three questions which the judge had to answer:-

(i) What was to be seen in the slides?
(ii) At the relevant time could a screener exercising reasonable care have failed to see what was on the slide?
(iii) Could a reasonably competent screener aware of what a screener exercising reasonable care will observe on the slide treat the slide as negative?”
5.5 Further, Lord Woolf M.R. agreed with the finding of the trial judge in those proceedings, to the effect that the experts in that case endorsed a requirement of “absolute confidence”, being that, if there was any doubt in the mind of a screener as to whether the slide was normal, the screener should not classify it as negative. Thus, it was held by the Court of Appeal that a slide should not be classified as negative unless the screeners had “absolute confidence” that it was so.

5.6 The trial judge in these proceedings adopted a modified version of the three-stage approach set out by Lord Woolf M.R. and held that, before applying the Dunne principles, the court must consider what is on the slides, a question of fact which must be determined on the balance of probabilities. Following such a determination, he held that the court must then consider the Dunne principles, in reference to the screener’s practical obligation of “absolute confidence”, in the analysis of their slides. This was elaborated on further at paras. 71 and 72 of the judgment of Cross J., as follows:-

“71. I hold that “absolute confidence” is the screeners practical duty in relation to their analysis of what is on the slide and indeed the adequacy of the sample, and the legal issue is whether or not they have carried out that duty in accordance with the Dunne principles. These extra tests set out in Penney Palmer are combinations of factual and legal matters, but I accept that a screening programme especially one such as in Ireland which does not have annual retesting, is inherently deficient if screeners ascribe as normal, results in which they are in any doubt. Accordingly, to ascribe as normal, a slide which the screener has any doubt of that fact even if he legitimately believes it to be normal on the balance of probabilities, is to fall below the Dunne standards required of that screener. Whether the screeners were right not to have any doubt is a matter to be assessed at law in accordance with the Dunne principles.

72. In other words, if there is any room for doubt that the slide was normal and the screener ascribes a normal result to the slide then the screener is in breach of the Dunne principles as he has been guilty of such failure that no professional scanner of equally specialist or general status and skill would have been guilty of if acting with ordinary care. A screening programme cannot operate safely if screeners are left to judge the slides and whether they are safe merely on the balance of probabilities…”

5.7 The overall approach which the trial judge considered was appropriate in the assessment of negligence in the context of medical screening was then set out at para. 74:-

“[T]he legal standard to be applied on the issue of the liability of the defendants is the Dunne test. Questions of fact, however, are for my decision on the balance of probabilities. The questions of fact include what was to be seen on the individual slides. Accordingly, as in Penney Palmer, the correct approach is to determine:-

(i) what was to be seen on each slide;
(ii) whether a reasonably competent screener at the relevant time could have failed to see what was on the slide; and
(iii) whether a reasonably competent screener in the light of what he or she should have observed, could have treated the slide as negative.
Questions (ii) and (iii) above and any issues as to adequacy are to be decided in the light of the ‘absolute confidence’ test and thereafter, the test for negligence is as stated in Dunne.”

5.8 Before turning to consider the allegedly negligent analysis of the slides, the trial judge noted the potential issue of hindsight bias in respect of any retrospective review of the smear tests. It was held that a court should be wary of the potential for retrospective bias in the course of an audit or an expert’s review and thus treat their results with caution. While noting that there are certain merits to conducting a blind review in order to reproduce the original screening conditions, the trial judge held that such a review is not compulsory and that the court should assess the professional opinion of any expert, whether conducting a blind review or otherwise, and come to a judgment.

5.9 Employing the three-part test as set out above, the trial judge then turned to consider the negligence of Quest in relation to the 2009 smear test. Answering question (i), it was held that certain abnormal features of cells were visible on the slide, and thus the trial judge had “no doubt” that the cells on the slide were AGC/AGUS. In this regard, he accepted the evidence of the Morrisseys’ expert witnesses, Ms. Tan and Dr. McKenna, and the conclusions of those who conducted the audit.

5.10 In respect of question (ii), the trial judge held that a reasonably competent screener at the relevant time should not have failed to see what was on the slide, where there were clear indicators of cell abnormality. In this regard, the evidence of Dr. McKenna was also accepted. The trial judge held that the evidence challenging this conclusion, which was given by American expert witnesses appearing on behalf of Quest, should be treated with caution, in light of the influence of the Guidelines for the Review of GYN Cytology Samples in the Context of Litigation or Potential Litigation, which were issued by the American Society of Cytopathology (hereafter, “the Guidelines”). The trial judge found that the Guidelines were prepared in an attempt to limit litigation and to provide a robust defence for cytoscreeners accused of negligence in the American courts.

5.11 In particular, the trial judge disagreed with the provisions of the Guidelines which seek to impose an obligation in all cases to carry out a blind review and which suggest that, in the absence of a blind review, it is wrong to impute any screener with negligence. Cross J. also disagreed with those provisions of the Guidelines which deal with findings of ASC-US and AGUS cells. In respect of such findings, the Guidelines state that such cases “do not represent consistently identifiable abnormalities and a reasonable basis for allegations of practice below a reasonable prudent practitioner standard of care”. Insofar as this provision proposes that it is not negligent to report a finding of ASC-US or AGUS cells as a normal or clear result, it was roundly rejected and criticised by Cross J. It is apparent that the trial judge considered that this attitude towards the categorisation of ASC-US and AGUS cells was prevalent amongst Quest’s American expert witnesses. One of Quest’s expert witnesses, Prof. Austin, was involved in the drafting of the Guidelines, while another expert witness, Mr. Feit, referred to the high degree of inter-observer variability in respect of ASC-US and AGUS categories and stated that the categories are not used at all in the U.S. for proficiency audits or examinations of cytoscreeners. Mr. Feit’s evidence that, in his view, the slide was normal, was dismissed as having been arrived at on the balance of probabilities, utilising his professional skill and judgement. On the basis that the Guidelines had affected, even subconsciously, the evidence of the American expert witnesses, which could give rise to the belief that ASC-US or AGUS cells need not be examined with the same scrutiny nor be subject to the requirement of “absolute confidence”, the trial judge held that such evidence should be treated with caution.

5.12 Quest chose not to call the two screeners who reviewed the slide in 2009 or the individual who conducted the 2014 audit of the slide to give evidence. Considering question (iii), it was held that in the absence of any such evidence, the trial judge had no knowledge as to what they did or did not see or how they did or did not appraise the slide. Cross J. held that it was his belief that the Quest screeners were utilising their professional skill and judgment and recording what they believed, as a matter of probability, was the case. However, applying the requirement of “absolute confidence”, and on the basis of the abnormalities as identified on the slide by Dr. McKenna, it was concluded that the slide ought not to have been categorised as negative, and that Quest was negligent and in breach of duty in relation to the reading of the 2009 smear test.

5.13 As previously mentioned, Medlab was held not to be negligent in its reading of the slide which had been sent to it. While concluding that abnormalities were visible on the slide which suggested a categorisation of AGUS/AGC cells, the trial judge held that these cells were not easily distinguishable from other normal cells and thus that a screener exercising reasonable care could have failed to identify the same. The High Court therefore held that the categorisation of the slide as negative for abnormalities was not negligent nor a breach of duty. This finding is not in issue on this appeal.

5.14 The trial judge then considered the issue of the adequacy of the 2012 slide. As previously mentioned, under the Bethesda System a minimum of 5,000 well-visualised cells must be counted on a slide for it to be considered adequate. The adequacy of most slides can be determined by a brief visual examination. If this visual inspection is insufficient, the Bethesda System prescribes that the ThinPrep method is used to formally test for adequacy. This requires viewing the slide under a microscope on a vertical or horizontal axis and magnifying random points on that axis in order to count the number of cells present. From this, the number of cells are multiplied appropriately in order to ascertain whether the minimum number of required cells are present on the slide. If the screener finds less than that amount, then the patient should be referred for a repeat smear test in one to three months.

5.15 Both the internal and external audits of the 2012 slide which were carried out considered that the reason for the false negative result provided was that the slide was “very scanty”. The evidence of the Morrisseys’ expert witnesses, Ms. Tan and Dr. McKenna, and Medlab’s expert witness, Prof. Pitman, also indicated that the slide contained an inadequate number of cells. Dr. McKenna and Prof. Pitman both reached this conclusion having carried out a formal test for adequacy as prescribed under the Bethesda System. Ms. Stowe, another expert witness who appeared on behalf of Medlab, gave evidence that she found a sufficient number of cells on the slide following a formal test for adequacy.

5.16 The trial judge dismissed the evidence provided regarding a study carried out in St. Vincent’s Hospital, Dublin, and a second study carried out by Prof. Pitman, both of which purposively looked for cells, and counted and multiplied the number of cells located in order to achieve a purported total. It was held that this was not a valid approach, given that neither study sampled on a random basis in order to calculate an average number of cells, as required by the Bethesda System.

5.17 The trial judge also dismissed the evidence of Dr. Madrigal, a pathologist who conducted a computer analysis of the slide on behalf of Prof. Pitman and determined that there were, in fact, over 35,500 cells on the slide. This alternative system of counting cells was held to be irrelevant, in circumstances where there has been no study conducted, subject to peer review or otherwise, to demonstrate that such a computer analysis is suitable or indeed to determine what number of cells must be found on the slide by the computer in order to establish adequacy. Further, the trial judge placed reliance on the fact that Medlab was required, under the terms of its agreement with CervicalCheck, to utilise the Thin Prep method, as prescribed under the Bethesda System.

5.18 Turning to consider the 2012 slide, the trial judge held that, on a visual examination, it was significantly different from all the other slides he had witnessed and that it appeared to have significantly fewer cells on it. It was held that the “absolute confidence” test is also applicable in the context of the slide’s adequacy, meaning that in the event of any doubt on the part of a competent screener, the slide ought to have been formally tested for adequacy. In light of the evidence put before the High Court, and the trial judge’s observations of the 2012 slide, it was held that the failure to test the slide for adequacy in accordance with the ThinPrep method was negligent and in breach of duty. In accordance with the Dunne principles, it was held that no screener of equal specialist or general status would have, if acting with ordinary care, failed to subject the slide to an appropriate test as to adequacy.

5.19 While acknowledging that the nature of the formal adequacy test carried out by Ms. Stowe was unclear and was not referred to in any report, the trial judge accepted that she conducted her test in accordance with the Bethesda System. However, he held that it was unlikely that any such random review would have found the slide to be adequate. As Medlab chose not to call the two individuals that initially reviewed the 2012 slide, there was no evidence provided as to whether an adequacy test was carried out. The trial judge held that it must be presumed no such test was conducted. On the balance of probabilities, Cross J. held that, had a test been carried out by the cytoscreeners, in accordance with the ThinPrep method and the Bethesda System, it would have resulted in a finding that the slide was inadequate. Thus, Medlab was found to be negligent and in breach of duty in its failure to properly conduct an adequacy review.

5.20 In light of the foregoing findings of negligence on the part of Quest and Medlab, the trial judge turned to consider the consequences of the negligent misreading of the slides. On his analysis of the evidence as to causation and having regard to the fact that Ms. Morrissey was diagnosed with cancer in 2014, the trial judge held, on the balance of probabilities, that the HPV infection was present for at least ten years before that diagnosis.

5.21 The trial judge went on to hold that had the 2009 slide been reported by Quest as abnormal, that is, with a categorisation of AGUS/AGC cells, Ms. Morrissey would have been referred for a colposcopy or, at least, been advised to attend for a repeat smear in six months’ time. It was accepted by the High Court that, on the balance of probabilities, such a follow-up screening or colposcopy would have returned abnormal results. It was further accepted that the detection of such pre-cancer would have resulted in the performance of a large loop excision of the Transformation Zone (LLETZ) procedure. This would have led to a complete excision of the cancerous cells, with only a 5% chance of the recurrence of precancerous cells, and less than a 1% chance of invasive cancer developing. On the balance of probabilities, the trial judge therefore determined that the serious prognosis which Ms.  Morrissey now faces would not have arisen.

5.22 In relation to the 2012 smear, the trial judge reached the same conclusion. He held that, had the sample been tested in accordance with the ThinPrep method, as prescribed by the Bethesda System, it would have been deemed as inadequate and Ms. Morrissey would have been required to undergo a repeat smear within one to three months. On the balance of probabilities, it was held that the repeat smear would have resulted in a referral for a colposcopy and that the cancer, which in 2012 was certainly developing, would have been identified and Ms.  Morrissey would have undergone the same procedure which could have taken place in 2009, with the same benign results. Accordingly, the negligent misreading of both the 2009 and 2012 slides were found to have caused the entirety of the  Morrisseys’ claims for injuries and loss.

5.23 The trial judge dismissed the defendants’ submission that cervical cancer develops more rapidly in younger women than in older women. On the basis of such a suggestion, it had been argued that Ms. Morrissey’s cancer was not present in precancerous form in 2009 or 2012. The trial judge held that there was no evidence to support the proposition that Ms.  Morrissey’s cancer had developed more rapidly than average. The High Court judge further rejected the argument of the defendants that, as Ms.  Morrissey developed squamous cancer and the abnormalities identified on the reviewed slides were glandular in nature (being categorised as AGUS), the development of the two were unrelated. In this regard, the trial judge accepted the evidence of Prof. Wells to the effect that it is highly likely that where one sees glandular pre-cancer there is an associated squamous pre-cancer, as the same carcinogenic stimulus is affecting the stem cells of the cervix.

5.24 The trial judge held that, along with Quest and Medlab, the HSE was liable to the  Morrisseys, in light of its organisational role in the CervicalCheck programme. Given that it determines the standards to be applied in relation to screening and to which laboratories must conform and provides for the manner in which screening is conducted and how it is reported, the  HSE was held to have responsibility for “all aspects” of the screening programme. Further, the trial judge emphasised that the  HSE chose to contract out the screening of smear tests to Quest and Medlab and, citing Byrne v. Ryan [2007] IEHC 207, [2009] 4 I.R. 542, he held that a party cannot evade its liability merely by engaging competent professional persons to perform tasks which they themselves are obliged to do.

5.25 Thus, the High Court held that the HSE has a primary liability towards the  Morrisseys. The trial judge dismissed the  HSE’s submission that primary liability is based on agency and stated that he accepted the principles of Woodland v. Essex County Council [2013] UKSC 66, [2014] A.C. 537 and the five-part test there outlined by Lord Sumption. The trial judge held that the  HSE was also vicariously liable for the activities of Quest and Medlab, by virtue of the control which it holds over the laboratories and their performance, as a result of their contractual arrangements.

5.26 The High Court held that it was impossible to differentiate between the losses resulting from the failure to properly assess the 2009 and 2012 slides and therefore, the three defendants were deemed to be ‘concurrent wrongdoers’ under the Civil Liability Act 1961, each being responsible for the same damage or for damage that cannot be distinguished. However, as a result of the terms of the contracts between the HSE and the other defendants, the  HSE was found to be entitled to an indemnity against the laboratories for all matters other than its liability in relation to the nondisclosure of the audits.

5.27 Assessing the quantum of damages to be awarded, the trial judge held that Ms. Morrissey was entitled to both general damages and special damages. Noting that the cap on general damages was most recently fixed at €450,000 by Quirke J. in Yun v. Motor Insurers Bureau of Ireland [2009] IEHC 318, during the time of an economic recession, the trial judge considered it appropriate to raise the cap on general damages to €500,000. Ms.  Morrissey was awarded special damages in respect of, amongst other things, the cost of her future care and the loss of her earnings for the remainder of her life. The High Court held that the admitted breach of the  HSE in its failure to advise Ms.  Morrissey of the results of the audits did not result in any further personal injury being suffered by Ms.  Morrissey and therefore that only a finding of nominal damages should be made against the  HSE in this respect.

5.28 The trial judge held that the Ms. Morrissey was entitled, as against all defendants, to: general damages of €500,000; miscellaneous special damages (agreed) of €12,508; cost of home adaption (agreed) of €70,000; occupational therapy costs (agreed) of €55,000; loss of earnings in the sum of €50,000; care costs of €60,000; giving rise to a total to Ms.  Morrissey of €747,508; together with €10,000 in nominal damages against the  HSE in respect of its negligence in relation to the audit. The total amount of damages awarded to Ms.  Morrissey was in the sum of €757,508.

5.29 The trial judge held that Mr. Morrissey was entitled to general damages for loss of consortium and to special damages arising from that loss, specifically in respect of the future care that he and his daughter will require after Ms.  Morrissey’s death and the loss of Ms.  Morrissey’s future earnings throughout her career. The defendants submitted that, on the basis of comments made by Geoghegan J. in Coppinger v. Waterford County Council [1998] 4 I.R. 243, a spouse is only entitled to damages for loss of consortium in respect of his losses while Ms.  Morrissey is alive. This was dismissed by the trial judge, who held that a spouse is entitled to damages for future pecuniary losses under the heading of loss of consortium and that it was irrelevant that such damages are, in certain circumstances, available in an action taken under Part IV of the Civil Liability Act 1961, in relation to fatal injuries.

5.30 The trial judge then referred to the decision of Lavan J. in Mahon v. Burke & anor [1991] 2 I.R. 495, which held that, where a deceased person has brought an action in negligence and was awarded damages, a statutory dependent was not entitled to maintain an action under Part IV of the 1961 Act, as to hold otherwise would be to subject a defendant to more than one case arising from the same cause of action. It was then pointed out that this authority can operate to exclude the dependants of an injured party from making claims for future financial losses because the injured party had vindicated her rights during her lifetime in a personal action claiming damages for personal injury. A situation where an injured party was confronted with a choice to either vindicate her own rights in a personal action claiming damages for personal injury, therefore depriving her dependants of any separate claim in the future, or alternatively forego her personal claim so that her dependants could achieve compensation for their losses, was described by the trial judge as “grossly unfair”.

5.31 To remedy this situation, the trial judge suggested that the principle of “lost years” could be employed to compensate a plaintiff whose working life expectancy has been cut short for the loss of her future earnings and the loss of her ability to care for her children. If Mr. Morrissey is not, in fact, entitled to damages for future losses under the heading of loss of consortium, then the trial judge held that he would have found that the same damages would be recoverable by Ms.  Morrissey under the heading of “lost years”. The trial judge also highlighted the potential application of the “lost years” principle in circumstances where a claimant does not have a spouse that can recover such damages for loss of consortium but does have child dependants who would be deprived of any future statutory claim.

5.32 The trial judge held that the Mr. Morrissey was entitled, as against all defendants, to: general damages for loss of consortium in the sum of €60,000; damages for loss of Ms.  Morrissey’s income of €600,000; loss of pensions, company car and share options in the sum of €150,000; costs of care for their child of €500,000; costs of domestic assistance of €75,000; retrospective care costs of €13,432 and bereavement counselling costs of €6,532; thus giving a total to Mr.  Morrissey of €1,405,000. The overall sum of damages awarded to Mr. and Ms.  Morrissey was, therefore, €2,162,508. The trial judge assessed that sum as being fair and reasonable in all the circumstances.

5.33 As will have been seen, most of the five issues identified earlier as arising on this appeal involve quite distinct questions. The only exception are the two issues raised by, respectively, Quest and Medlab, which suggest that the trial judge failed to adequately or appropriately engage with their case on the question of negligence. While the precise manner in which those defendants analysed the purported failure of the trial judge in that regard involves different considerations, there is clearly a great deal of common ground between those two issues.

5.34 I will, therefore, deal with those two issues together. However, it seems to me to be appropriate to deal separately with each of the other issues and to set out the arguments of the parties in respect of those different issues as part of the discussion under each heading. I propose, therefore, to turn first to the question of the legal standard of care in clinical negligence cases and its application in the context of screening.

6. The Proper Approach
6.1 As noted earlier, developments at the oral hearing suggested that there was ultimately little difference between the parties as to the proper approach to be adopted by a screener in a case such as this. However, as this matter has generated significant controversy and was, indeed, one of the reasons why this Court considered it appropriate to allow a leapfrog appeal directly to the Court, it is important that the position is set out in some detail.

6.2 I have already cited the so-called Dunne principles. All parties ultimately agreed that those principles continue to represent the law in this jurisdiction. It is also clear that there are significant similarities between the Dunne principles and the legal test for the standard of care identified in the United Kingdom in Bolam and Bolitho.

6.3 Before addressing the precise principles to be applied, it is appropriate to briefly make a number of preliminary observations. The first is that care needs to be taken in the use of the term “standard of care”. As the trial judge pointed out, that term has a precise legal meaning and represents, at the level of principle, the legal duty which applies in any particular circumstance. However, given that, in clinical negligence cases, a court is dealing with “care” in a medical sense, the phrase “standard of care” might at least colloquially be used to define the appropriate standard by reference to which the approach of a relevant professional to a particular problem should be assessed. To avoid any possible confusion between the term “standard of care” in its precise legal meaning and what might colloquially be called a standard of care in a clinic setting, I will use the term “standard of approach” to mean the standard which, in practise, has been shown to be required of a particular professional in particular circumstances.

6.4 One further observation may also be useful at this stage. There are, of course, similarities between the Dunne principles as applied by the courts in this jurisdiction and the Bolam and Bolitho principles applied in the United Kingdom. I have already cited a passage from the judgment of Lord Woolf M.R. in Penney Palmer in which he indicated that “the Bolam test has no application where what the judge is required to do is make findings of fact”. It seems clear that, in the context in which Lord Woolf M.R. was commenting, the Bolam test is in reality a reference to the fourth point identified in the judgment of Finlay C.J. in Dunne (as already cited). Thus where, in a number of judgments, the U.K. jurisprudence suggests that the Bolam test has no application in particular circumstances, it does not seem to me that it follows that the Dunne principles may not apply, for the specific point decided in Bolam forms but one leg of the overall test identified in Dunne.

6.5 In any event, it is important to start by indicating that, while the principles identified by Finlay C.J. in Dunne are expressly related to negligence against medical practitioners, they mirror the test applied across the board in cases involving allegations of professional negligence. For example, a similar approach to legal advice allegedly negligently given was adopted by this Court in Roche v. Peilow [1985] I.R. 232.

6.6 Thus, the starting point in any professional negligence case requires the identification of the standard of approach which would have been applied by a professional of the appropriate standing or skill as the person against whom the allegation of negligence is made. Accepted practice is highly relevant, although departure from normal practice may be found not to give rise to negligence where an equivalent professional might reasonably have followed such a course of action while exercising reasonable skill. Likewise, following normal practice may not absolve the professional from a claim in negligence if it can be shown that there was an inherent defect in the practice which should have been obvious to professionals of the type in question. Finally, it is emphasised that the question will not come down to one of a judge deciding which of two or more possible courses of action might have been considered, often with the benefit of hindsight, to have been preferable, but rather whether the course of action actually adopted was consistent with the exercise of the ordinary care which could reasonably be expected of a professional of the type under consideration.

6.7 In my view, the various aspects of the Dunne test identified by Finlay C.J. can be reduced to one overarching principle with a number of subsidiary considerations which impact on the application of that overarching principle in particular circumstances. The overarching principle is to be found in point (1); the standard of approach of a medical professional is to apply a standard appropriate to a person of equal specialist or general status acting with ordinary care. A failure to act in that way will amount to negligence.

6.8 Each of the other points made by Finlay C.J. derive from that overall obligation. Thus, even if the medical practitioner concerned deviated from what might have been established to be a general and approved practice, the practitioner concerned will not be found to be negligent unless it can also be shown that no practitioner of equal status exercising ordinary skill might not also have deviated in the same way. This represents point (2) of the matters identified by Finlay C.J. and can be seen to represent the application of the overarching principle to circumstances where the relevant practitioner has, in fact, deviated from an established practice.

6.9 A similar comment can be made in respect of point (3). Here, Finlay C.J. makes clear that following an accepted practice may not absolve a practitioner from negligence if it can be demonstrated that there were inherent defects in the practice which ought to have been obvious to a professional giving the matter due consideration. This, again, can be seen to derive from the overarching principle, for a professional cannot be said to have applied the required standard of approach, being to exercise the ordinary skill which would be appropriate to a person of the status in question, if it can also be shown that any such person ought to have realised that the relevant practice had an inherent defect.

6.10 In addition, a similar observation can be applied to points (4) and (5) as identified by Finlay C.J. in Dunne. Where there are two or more schools of thought as to what course of action should be adopted in particular circumstances, it is clearly the case that a professional exercising reasonable care may adopt one of them even though there may be others who would take a different course. These principles, in effect, represent what might be called the Bolam element of the Dunne test and can also be seen to derive from the overarching principle.

6.11 Finally, it is important to note that Finlay C.J. went on, at p. 109 of his judgment in Dunne, to note that the relevant principles “apply in identical fashion to questions of diagnosis” as well as to questions of treatment. There was no argument put forward on this appeal that different principles would apply in the case of screening. There are some passages in judgments of the courts of the United Kingdom which do seek to make a distinction between treatment cases and diagnostic cases. It is, of course, the case that the application of general principles to particular circumstances may give rise to somewhat different approaches, which stem from the very fact that circumstances may be different. It may very well be the case that questions concerning deviation from accepted practice, following inherently defective practices or choice between two respectable professional opinions may be much more likely to arise in the context of decisions on treatment rather than decisions on diagnosis (or, indeed, it should be said, screening). But it is not, for example, impossible to envisage that there might be circumstances where there were two different approaches to diagnosis in a particular set of circumstances, both of which had their reasonable adherents. I cannot see that those aspects of the Dunne principles which deal with such questions would not have equal applicability to a case of alleged misdiagnosis in such circumstances. There seems to me, therefore, to be strong grounds for favouring the view adopted by Finlay C.J. in Dunne which does not seek to distinguish, at the level of principle, between different types of clinical tasks. However, it does need to be acknowledged that how those general principles apply may well be different in particular circumstances. If there are not two schools of thought about how to go about a particular diagnosis, then the question of the applicability of those aspects of the Dunne principles which address such questions (and are at the heart of what are described as the Bolam principles in the United Kingdom) simply has no application. That is so not because there is a difference in principle between the approach to treatment cases and other cases, but rather it simply derives from the fact that, in practice, some of the Dunne principles may have no application in a particular type of case because they do not arise on the facts.

6.12 No issue arose in these proceedings concerning the adoption of a common practice which had inherent defects which ought to have been obvious. Likewise, there was no issue concerning there being two schools of respectable thought or of an acceptable deviation from common and established practice. The issue of the standard of approach in this case came down, therefore, to the same issue which almost inevitably arises in any professional negligence case. What would an ordinary competent professional of the type and skill of the individual concerned have done, and did the professional who is sued meet that standard? The test to be applied in this case is, therefore, no different to the test which would properly be applied in any professional negligence case. Ultimately, in the particular circumstances of this case, the question came down to establishing what the approach of relevant professionals to screening should be and whether it had been demonstrated that the actions of any of the screeners in this case had fallen below the reasonable standard which professionals of that type could be expected to have applied, having regard to that approach.

6.13 Next, it must be emphasised that the question of the standard of approach which should be applied by an ordinarily competent professional is ultimately a matter of fact. It requires expert evidence as to how professionals of the type in question would generally go about their work and the way in which they would have dealt with the case in question. It follows that, at least in many cases, the court has no role in determining the standard to be applied other than to assess the evidence given by professionals as to the standard to which they themselves regard as being appropriate to someone of the standing and skill of the defendant. There may be some scope for the court reaching a further assessment in those limited cases where it is said that a professional did comply with an accepted practice but where there were also said to be inherent defects in the practice concerned. As already noted, no such issues arise in this case.

6.14 It follows that, in a case such as this, a court has no role in imposing a standard of approach on a professional. Rather, it is the standards of the profession itself, as demonstrated by the evidence, which impose the standard required.

6.15 I have felt it important to emphasise these factors to ensure that there is no misunderstanding about the court’s role in cases such as this. Some public commentary on the decision of the High Court in this case seems to have ignored the fact that the role of the court is as I have just described it.

6.16 It seems to me next to be appropriate to address the way in which evidence was given in the High Court for, as I have pointed out, it is that evidence, given by professionals themselves, which determines the standard to be applied by the Court to another expert against whom an allegation of negligence is made.

6.17 In that context, it is of some importance to emphasise that the analysis of the Court of Appeal for England and Wales in Penney Palmer was based on the evidence given by relevant professionals to that court in that case. Further, that analysis was also expressly put to many of the experts who gave evidence in this case, such that its terms actually form part of the evidence given, in the sense that witnesses gave their testimony, at least in part, by reference to the conclusions reached in Penney Palmer. It is in that context that the term “absolute confidence” came into play. It is of the highest importance to understand the way in which that term was used by the courts of England and Wales, in the evidence in this case and, it follows, by the trial judge.

6.18 First, it should be said that it is clear that the term “absolute confidence” derived from what the trial judge in the Penney Palmer proceedings (see Penney, Palmer and Cannon v. East Kent Health Authority [1999] Lloyd’s Rep Med 123) considered to be the agreed evidence of the experts before him. Reviewing the evidence of the experts, the trial judge held, at p. 127:-

“All five [experts] agreed that if the screener was in any doubt about what he saw on the slide he should not classify the smear as negative. In their evidence before me each expressed the point differently but the conclusion was the same.”

6.19 The requirement of “absolute confidence that the smear is within the normal range” before a screener ascribes to it a clear result was said to be the appropriate practice of a screener, as advanced by one such expert, a standard with which the trial judge stated that all the other experts were in agreement. Likewise, the adoption by the Court of Appeal for England and Wales of the same term followed on from the finding of the trial judge, based, as it was, on the evidence. At para. 40 of his judgment, Lord Woolf M.R. stated:-

“The judge’s reliance on the absolute confidence test is understandable. The phrase ‘absolute confidence’ was no more than shorthand for the approach which on examination of the transcripts it seems to us all the experts endorsed.”

6.20 It follows that the adoption of the “absolute confidence” test in England and Wales stemmed from an assessment of evidence given by relevant professionals on both sides of the Penney Palmer case. It was not itself a court imposed obligation but one which, on the evidence, the trial court assessed as being the agreed position of experts in the field.

6.21 Turning then to the evidence before the High Court in this case, it is important to note that the question of there being potentially a difference between the appropriate standard applied in the United Kingdom and that applied in the United States did form some part of the debate on the evidence. It was in that context that evidence was given of the fact that an “absolute confidence” test was applied in the United Kingdom (including Northern Ireland) and was also the subject of discussion with some of the United States witnesses called on behalf of the defendants.

6.22 Dr. McKenna, a consultant cellular pathologist based in Northern Ireland who gave evidence on behalf of the Morrisseys, was referred to the Penney Palmer authority during his examination in chief before the High Court on 30 January 2019:-

“Q. Can I just ask you about something… it’s English decision called Penney, Palmer and Cannon v. East Kent Health Authority and it’s a decision of the English Court of Appeal of 16th December 1999. Are you familiar with that?

A. I am very familiar with it, yes.

Q. There’s just one particular thing said in that judgment I just want to draw attention to at this stage and it was that the English Court of Appeal said that all the experts endorsed the ‘absolute confidence’ test, under which if there is any doubt in the mind of the cytoscreeners as to whether the slide was normal, he or she should not classify it as negative. Now, what exactly is the English Court of Appeal saying there? Like, what is the absolute confidence test, what does that mean?

A. I think what it’s saying is that unless you are absolutely – and that is 100% — convinced that the slide is negative, do not call it negative.

…

Q. So, in other words, what I am getting at here is that when a cytoscreeners has a slide in front of him or her, is there any acceptable level of doubt – if you have any doubt, is any doubt actually acceptable?

A. No, you can only – you should only report something as negative when you’re absolutely certain – in other words, no doubt.”

6.23 When the “absolute confidence test” was put to Dr. McKenna once again the following day, under which “if there is any doubt in the mind of a cytoscreeners as to whether the slide was normal he or she should not classify it as negative”, he stated the following:-

“A. And I fully agree with that statement, and in fact those are the very words that I always use to my staff; if you have any doubt, then pass it on. Do not call it negative.”

6.24 Ms. Tan, a cytotechnologist based in New York who also gave evidence on behalf of the Morrisseys, stated that there is no tolerance for any doubt in the assessment of the normality of the cells. The evidence tendered by the experts appearing on behalf of Medlab also indicated their agreement with the “absolute confidence” standard. Prof. Pitman, the lead consultant cellular pathologist for Medlab, agreed that a cytotechnology must have absolute confidence that a smear is normal before reporting it as normal. Ms. Stowe, a cytotechnologist based in Wisconsin, also had the following exchange during cross examination:-

“Q. Now let’s be clear about this. Do you agree with me that the test is that a cytotechnologist or a cytoscreeners must have absolute confidence that there is no abnormality on that slide to pass it?

A. I agree with that.”

6.25 The experts who appeared on behalf of Quest, both based in the United States, expressed some reservation with the “absolute” nature of the standard, however. Prof. Austin, a consultant cellular pathologist based in Pennsylvania, expressed the following in an exchange with the trial judge:-

“Q. MR. JUSTICE CROSS: Do you accept the suggestion that the cytoscreeners must have absolute certainty to pass cells as normal?

A. That’s my understanding of the decision in the UK.

Q. MR. JUSTICE CROSS: Well, is it your view?

A. The cytotechnologist should be confident if a slide is negative or if it is possibly abnormal to refer it to the pathologist.

Q. MR. JUSTICE CROSS: And you accept that, do you?

A. Yes, Sir.”

6.26 While Prof. Austin was under cross-examination, the following exchange in relation to the Penney Palmer authority took place:-

“Q. …You see, that decision in the UK, the Penney, Palmer and Cannon v. East Kent Authority, did you know that experts from The United States gave evidence in that case?

A. No, I didn’t know that.

Q. All right. Did you know that they all agree, all the experts actually agreed in that case that the test is “the absolute confidence” test? Did you know that?

A. No. Do you know who the US experts were?

Q. I don’t, I am afraid, no.

A. Very good.

Q. So what I just want to be clear about is this, because we are dealing with a slide which is in a laboratory in Grand Rapids in Wyoming in August 2009; are you saying that the cytotechnologist who looked at that slide has a different test than the absolute confidence test?

A. That question would have to be answered by someone from Quest because I wasn’t there, you know, instructing the cytotechnologist in the Quest facility.

Q. MR. JUSTICE CROSS: When you said that a competent screener when looking at this slide in 2009 might or could have reported it as normal…

A. Yes, Sir.

MR. JUSTICE CROSS: …were you saying that that could have been done by a competent screener assessing his or her professional view and coming to a decision on the balance of probabilities or were you saying that a competent screener could say with absolute confidence that it was normal?

A. I can certainly say with confidence. To be honest, this idea of absolute confidence, I am kind of struggling with, because it’s not…

Q. MR. JUSTICE CROSS: It is not something you…

A. It is not something we routinely deal with. So I am not quite sure how to say the difference between ‘confidence’ and ‘absolute confidence’.”

6.27 After the trial judge’s intervention, the cross-examination continued and Prof. Austin appeared to ultimately express agreement with the standard of “absolute confidence”, notwithstanding his previous reservations:-

“Q. Now what I just want to be very clear about here, I want to be clear that the standard that applied in Grand Rapids in Wyoming in August 2009, all right, that’s what we are dealing with here in this case, all right. Now are you suggesting that a cytoscreener, when he or she is looking at a slide, should be anything other than absolutely confident if they are going to pass that slide as being negative?

A. No, Sir.

Q. So we are in agreement then?

A. Yes, Sir.”

6.28 Mr. Feit, a cytotechnologist based in Wisconsin, also expressed misgivings in relation to the “absolute” nature of the confidence required:-

“A. Well, this is something that — so absolute confidence for me, as a scientist, absolute confidence is very hard to have because, I mean, generally in science, you generally say the evidence supports this or doesn’t support that.

Q. MR. JUSTICE CROSS: And there can be levels of support, can’t there?

A. Yes, yes, but I don’t think — I mean, you probably wouldn’t even have — I mean, a physicist probably wouldn’t even say he has absolute confidence in the law of gravity because….

Q. MR. JUSTICE CROSS: It’d be pretty close.

A. Pretty close, probably, pretty close. But I mean, in science, it’s just, you know, we are taught not to do that because science moves forward through new studies, new evidence, you know, and so absolute confidence is something I just, it’s very difficult for me. I know it probably has a different meaning in law.

Q. MR. JUSTICE CROSS: Yes.

Q. MR. TREACY: Yes.

A. And I don’t understand that, so.”

6.29 From that review of the evidence, it is first clear that there was evidence that the actual standard applied by relevant professionals in the United Kingdom was one of “absolute confidence”. Given some of the “doomsday” predictions which followed on from the judgment of the High Court in this case, I do feel it necessary to say that at least some of the more extreme comments are very hard to reconcile with the fact that there was clear evidence that such a standard is actually applied in the United Kingdom generally and, to the particular knowledge of an important expert witness, in Northern Ireland specifically, without the screening systems in those countries becoming unworkable.

6.30 It is also absolutely clear that, while there may have been some quibbling on the part of witnesses called on behalf of the defendants with whether the term “absolute” was appropriate, all of the witnesses agreed that any doubt about whether what is seen on a slide is normal must not allow the case to be reported as a clear result. Again, it must be emphasised that imposing such a standard of approach does not derive from the Court but rather from an assessment of the evidence given on all sides concerning the standard actually applied by professionals in the area in question. It is those experts, not the Court, who identified the standard expected of a normally competent screener as being one which precludes giving a clear result in a case of doubt.

6.31 Next, it is perhaps of particular importance to note again that the trial judge in this case clearly accepted that it was possible for competent screeners, applying an appropriate standard of approach, to come to different views about whether there was even a doubt as to whether a clear result could be given. It would, indeed, have been difficult for the trial judge to have come to any different view having regard to the evidence given in respect of the United Kingdom’s screening programme (which is accepted as being one of the very highest standard), where, notwithstanding those high standards, reviews suggest of a different view to that of the original screener being taken in a significant proportion of those cases where a diagnosis of cancer actually followed.

6.32 But if any proof were needed of the practical acceptance by the trial judge of the fact that there could be genuine differences of opinion between competent screeners, even applying a no doubt test, this can be found in the very finding of the trial judge in respect of the claim for negligence against Medlab relating to the reading of the 2012 slide. It will be recalled that, while the trial judge found Medlab negligent in respect of the adequacy issue, the trial judge was not satisfied that it had been demonstrated that Medlab was negligent in respect of the manner in which the screener did not identify any suspicious material on the slide in question. The trial judge came to that view notwithstanding the fact that there was expert evidence, tendered on behalf of the Morrisseys, which suggested that a competent screener would have identified the slide as problematic. It follows that this case itself provides a very clear example of how, even applying what the trial judge considered to be an “absolute confidence” test, there was nonetheless room for a finding, contrary to at least some of the evidence, that this was the sort of case where competent screeners could come to different views and where there was, therefore, no negligence. The suggestion, therefore, that the trial judge was applying an “absolute confidence” test in a way which effectively meant that every error (even with the benefit of hindsight) must result in a finding of negligence is demonstrably wrong and would clearly be seen to be such to anyone who had taken the trouble to read the judgment. If the trial judge were applying the test in that way then it is impossible to see how he could have found against the  Morrisseys in respect of the allegation that Medlab had negligently read the slide, as opposed to the finding which he actually made, which was to the effect that Medlab was only negligent in treating it as adequate.

6.33 Finally, it is necessary to touch on a question on the standard of approach issue in respect of which there was some debate at the hearing. That debate concerned the use of the term “test” in relation to “absolute confidence”. Counsel for the Morrisseys accepted that the Dunne test was the appropriate test and was anxious not to be heard to suggest that Penney Palmer provided a different legal test. In that view, I consider counsel to be correct. Penney Palmer does not establish any different legal test. Rather the term “absolute confidence”, which derives from Penney Palmer, can be seen as no more than a synopsis of the evidence given in that case and not as representing any different or separate test. However, it is worth noting that, in the written submissions filed in the High Court, counsel on behalf of the  Morrisseys did describe it as “the absolute confidence test”. That may well explain why the trial judge also described it as a “test” in his judgment. However, it is clear that it does not represent a separate or different legal test. The only test for the standard of approach, at least so far as relevant in this case, is based on evidence as to the standard actually applied by competent professionals in the area. In describing that standard, based on the evidence, it is important not to get too hung up on the words used, for to do so can create an erroneous impression that the language used has a status amounting to a legal test.

6.34 Indeed, it may well be that the introduction of the term “absolute confidence” into the debate has created more confusion than clarity. Ultimately, the overall question which a court has to address in a case such as this is as to whether a reasonably competent screener could have given a clear result, both having regard to adequacy and the absence of suspicious material. On the evidence in this case, it seems clear that the standard of approach to be adopted by a screener in such circumstances is that a screener should not give a clear result if they have any doubt about either adequacy or the absence of suspicious material.

6.35 That is the only test to be applied. Therefore, the question for the court’s assessment is whether, on the evidence in this case, it has been shown on the balance of probabilities that a competent screener could not have concluded that there was no doubt about it being appropriate to give a clear result.

6.36 It does not seem to me that there is any basis for suggesting that the trial judge approached this case in any other manner.

6.37 It may be useful, at this stage, to also comment on the role of expert evidence. For the reasons already addressed, it is clear that, in any case of dispute, it will be necessary to tender expert evidence as to what the appropriate standard of approach should be for a professional of the standing and skill of the one against whom an allegation of negligence is made. But expert evidence may play another role. It may assist the court in deciding on the facts of the individual case whether the relevant professional has lived up to whatever standard of approach has been established. Expert evidence of that type may play a role in many types of negligence actions.

6.38 For example, in the case of an industrial accident, expert evidence may be tendered to establish the appropriate standards which should be applied by employers in the industry concerned. But expert evidence might also be tendered to assist the court in deciding whether, as a fact, the accident occurred in a way which could be said to be attributable to a failure to apply those standards. For example, an engineer might be called to give evidence about whether it was likely that an accident could have happened in the way in which it was described by a witness. It might be said that the workings of whatever industrial process was involved would not make it possible for an accident to have occurred in a particular way. Similarly, medical evidence might be tendered as to whether injuries actually suffered were or were not consistent with an accident having occurred in a way described by a witness. In those latter cases, the experts are not giving evidence as to the standards to be applied but rather are giving evidence which may assist the court in conducting its role of deciding the facts on the balance of probabilities.

6.39 It is worth emphasising that, where expert evidence is tendered in that latter respect, there is no place for the application of the Bolam test or, in the Irish context, the third item of the Dunne test. The experts may express different views about the likelihood or otherwise of something having happened in a particular way or the likelihood or otherwise of a competent professional having acted in a particular way. But when such views are expressed, they only represent evidence to assist the court in deciding on the facts. The court must choose between any such competing evidence and reach an overall assessment on the facts on the basis of all the evidence tendered. In such a case, the court is not involved in identifying that there are two respectable schools of thought about the proper course of action to be adopted, such that a professional will be absolved from liability if following either. Rather, in such a case the expert is simply tendering evidence which may be useful, to a greater or lesser extent, in assisting the judge to reach a conclusion on the facts. Such evidence may not even be absolutely necessary in every case. To take but a simple example, it might be established in the circumstances of a particular negligence claim that it was accepted practice that a doctor should have taken a particular course of action if a patient had a temperature above a certain level. Whether the patient actually had a temperature above that level when measured by the relevant doctor is a question of fact. There might be competing evidence. A doctor might give evidence of one reading, whereas a nurse who was present might suggest that the doctor’s evidence was incorrect. In such a case, the court would have to make a finding of fact based on that evidence in circumstances where expert evidence would be of no assistance. However, where the facts involve difficult questions on which expertise may bear, then it will, of course, often be useful for the court to have the benefit of such expert evidence in assessing the facts.

6.40 That being said, I would also accept that the practical approach adopted in Penney Palmer may well provide a useful guide to the way in which a court should approach its task in circumstances of this case. Ultimately, however, the question is as to whether a competent screener could have given a negative, or clear, result. The first question for this Court is, therefore, as to whether there was evidence to support the trial judge’s conclusion that a screener must not give a clear result when in any doubt. On the evidence, it was undoubtedly accepted by all witnesses that a competent screener must not give such a result if they had any doubt as to the presence of suspicious material or as to the adequacy of the material on the slide. It follows that the second question, in respect of the slide tested by Quest, was as to whether there was evidence and analysis to support the finding that a competent screener could not have formed the view that there was no doubt but that the slide in question was clear. Likewise, the second question in respect of Medlab was as to whether there was evidence and analysis to support the finding that a competent screener could not have formed the view that the sample was adequate.

6.41 Those issues obviously involve considering the slides themselves, potentially with the benefit of expert evidence, and considering whether any element of those slides was such that it should not have left a competent screener without a doubt. Ultimately it does not seem to me that the approach of the trial judge in that regard was materially different to the approach which I have just outlined. On that basis, it does not seem to me that the standard of care issue itself could provide any basis for allowing an appeal from the decision of the trial judge in this case. In those circumstances, it is next necessary to turn to the two connected issues, which concern whether the trial judge failed, as both Quest and Medlab argue, to properly engage with their case on the respective second issues just mentioned.

7. Did the Trial Judge fail to engage with the Defence Case?
7.1 While the specific issues raised by, respectively, Quest and Medlab were different and depended very much on the factual issues arising in the separate cases as against them, there is, nonetheless, a similar approach adopted by both of these defendants at the level of principle.

7.2 While it will be necessary, therefore, to turn to the specific issues which arise in the different case made against both of these defendants, it is appropriate to start with some general observations which are applicable to both sets of issues.

7.3 The legal position is clear. The classic statement of the correct approach to be taken by an appellate court in respect of findings of fact made at first instance is as set out by McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 at pp. 217-218. In particular, it was held that an appellate court is bound by the findings of fact made by the trial judge when they are supported by credible evidence. Further, McCarthy J. emphasised the importance of a clear statement by the trial judge of his findings of primary fact, the inferences to be drawn and the conclusion that follows.

7.4 This latter obligation on the trial judge underpins the case law which subsequently developed on the question of the appropriate engagement on the part of a trial judge with the competing arguments of the parties to litigation. Any party is entitled to a judgment which states why the party concerned won or lost. In Doyle v. Banville [2012] IESC 25, [2018] 1 I.R. 505, this Court held that, to this end, it was important that the judgment of the trial court engages with the key elements of the case made by both sides and provides a reasoned conclusion as to why the case on the facts made by one or other side is preferred. In my judgment in that case, a distinction was drawn between circumstances in which there may have been a significant and material error in the way in which the trial judge reached a conclusion as to the facts, in respect of which an appellate court can and should intervene, and a case where the trial judge was simply called on to prefer one piece of evidence to another and does so for a stated and credible reason. In the latter case, it is not the function of the appellate court to revisit the trial judge’s findings.

7.5 This obligation on the trial judge to engage with and adequately address the competing arguments of the parties on the facts was restated by this Court in Wright v. AIB Finance & Leasing and ors [2013] IESC 55 and Ulster Bank v. Healy [2015] IESC 106. Importantly, in Leopardstown Club Ltd. v. Templeville Developments Ltd [2017] IESC 50, [2017] 3 I.R. 707, MacMenamin J. set out in clear terms the approach to be taken by an appellate court when reviewing the engagement of the trial judge with the arguments of the parties to litigation, at paras. 109-111:-

“109. Save where there is a clear non-engagement with essential parts of the evidence, therefore, an appeal court may not reverse the decision of a trial judge, by adverting to other evidence capable of being portrayed as inconsistent with the trial judge’s primary findings of fact.

110. “Non-engagement” with evidence must mean that there was something truly glaring, which the trial judge simply did not deal with or advert to, and where what was omitted went to the very core, or the essential validity, of his findings. There is, therefore, a high threshold. In effect, an appeal court must conclude that the judge’s conclusion is so flawed, to the extent that it is not properly “reasoned” at all. This would arise only in circumstances where findings of primary fact could not “in all reason” be held to be supported by the evidence (see Henchy J. in V.C. v. J.M. and G.M. [1987] I.R. 510, at p. 523, quoting his earlier judgment in Northern Bank Finance v. Charlton [1979] I.R. 149). “Non-engagement” will not, therefore, be established by a process of identifying other parts of the evidence which might support a conclusion other than that of the trial judge, when there are primary facts, such as here. Each of the principles in Hay v. O’Grady [1992] 1 I.R. 210 is to be applied.

111. The task faced by the judges of our appeal courts is already too onerous. But the task would be made yet more onerous were appeals to be reduced to a piece-by-piece analysis of the evidence, in an effort to show, on appeal, that the trial judge might have laid more emphasis on, or attached more weight to, the evidence of one witness, or a number of witnesses, or one document, or a number of documents, rather than others on which he or she relied.” (emphasis included in original)

7.6 In the context of that case law, it is, however, important to emphasise a number of features which are of some relevance to the issues which arise on this appeal.

7.7 First, it is clear that what is spoken of as a lack of engagement in those authorities relates not so much to the way in which a trial judge conducted the proceedings but rather to the way in which the trial judge determined the issues in the judgment. A failure to engage, in the context in which it is used in the relevant case law, clearly refers to the failure on the part of a trial judge to set out the reasons why central or important aspects of the case of one or other party on the facts were not accepted.

7.8 I did not understand counsel on any side of this case to be in the least way critical of the way in which the trial judge conducted these proceedings. Even a general reading of the transcript makes it clear that the trial judge was fully involved with the evidence and the issues and, in that sense, was clearly engaged with the case. However, that is not the sort of engagement to which the case law referred to earlier is directed. Rather, the criticism suggested both by Quest and by Medlab is directed to the question of whether the trial judge gave adequate reasons in his judgment for rejecting what are said to be central aspects of their respective cases on the facts.

7.9 Second, it is worth adding that it is clear from that case law that it is far from sufficient for a party seeking to appeal a decision of a trial court to search through the undergrowth of the pleadings and evidence so as to find some tangential or minor aspect of the case which is not expressly referred to in the judgment. The test, therefore, involves, as MacMenamin J. pointed out in Leopardstown Club, a high threshold which requires the court to address the question of whether, taking that party’s case as a whole, can it be fairly said that the trial judge has significantly failed to adequately address the reasons for rejecting the appellants’ case on the facts?

7.10 Finally, before going on to consider the specific issues raised by the respective defendants, it is also of importance to emphasise that it was accepted by both Quest and by Medlab that there was evidence on which the trial judge could have concluded that the facts were as alleged by the Morrisseys. In other words, there was evidence that a competent screener would, in the case of Quest, not have given a clear reading and, in the case of Medlab, not considered the slide adequate. This is not the sort of case, therefore, where the primary issue identified in Hay v. O’Grady arises. In most cases in which factual decisions are sought to be overturned, it is asserted that there was no evidence on which the decider of fact could have reached a particular adverse conclusion. This is not such a case. Rather, this case is solely concerned with whether there was sufficient engagement in the judgment with the case on the facts made by the two laboratories so as to give a reasonable and broad explanation as to why what were said to be important elements of their respective defences on the merits did not find favour.

7.11 Against those general observations, it is necessary to turn separately to the issues raised by, respectively, Quest and Medlab.

8. The Quest Case
8.1 It was argued on behalf of Quest that there was a failure on the part of the trial judge to engage with its case in respect of the interpretation of the 2009 slide, which was to the effect that a reasonably competent cytoscreener could have reported the 2009 slide as clear or negative. Quest submits that the trial judge reached two erroneous conclusions in relation to its U.S. expert witnesses, resulting in a failure on the part of the High Court to engage with the cumulative effect of their evidence.

8.2 First, as previously referred to, the trial judge considered that the evidence tendered by American expert witnesses called by Quest should be treated with caution and as being “subconsciously affected” by the Guidelines issued by the American Society of Cytopathology and its view on the reading of ASC-US and AGUS cells. Quest submitted that this conclusion was not supported by evidence and that at no point in these proceedings was it submitted that the Guidelines should set the legal standard for negligence in cytoscreening. While Quest’s expert cytotechnologist, Mr. Feit, and its expert pathologist, Prof. Austin, were members of the American Society of Cytopathology, it was submitted that their conclusions as to the presence of abnormalities on the 2009 slide were derived from honestly held opinions rather than bias towards the categories denoting borderline abnormalities arising from the content of the Guidelines.

8.3 Second, Quest argued that the trial judge also erred in concluding that Mr. Feit and the Quest cytoscreeners reached their conclusions as to the 2009 slide on the balance of probabilities, in circumstances where, it was submitted, there was no evidence that they adopted this standard.

8.4 As a result of these errors, Quest submitted that the conclusions of the trial judge in respect of the interpretation of the 2009 slide contained no real engagement with the evidence of Prof. Austin and Mr. Feit and that there was no proper explanation as to why the evidence of the Morrisseys’ expert witnesses was preferred over their own.

8.5 Furthermore, it was argued that there was a failure to engage with the evidence adduced by Quest of the blind review which Mr. Feit coordinated of the 2009 slide. This review was submitted to have reproduced the original screening conditions insofar as possible in order to assess how the reasonably competent cytoscreeners would interpret a slide. The 2009 slide was reviewed by eight cytoscreeners, alongside nine other slides, and the screeners did not know which slide was of interest, nor by whom they were instructed. Six out of eight screeners deemed the 2009 slide negative, and two made findings of abnormalities.

8.6 Quest submitted that the trial judge’s approach to the blind review was flawed. While it was accepted that Cross J. had engaged at a high level with some of the “hazards” said to be associated with blind reviews in general, the trial judge was said not to have engaged at all with the methodology or results of the Quest blind review and not to have explained how its results can be consistent with the finding of negligence which was arrived at. This occurred, Quest submitted, in circumstances where the expert witnesses on behalf of the Morrisseys also accepted the merits of blind review. In addition, it was submitted that the trial judge expressly refused to consider the evidence of Prof. Roese, thus failing to appreciate the need to mitigate hindsight bias in a cytology review.

8.7 Finally, Quest submitted that there was also a failure on the part of the trial judge to engage with their case in respect of causation. The cumulative effect of the evidence adduced by Quest in relation to causation was said to point to the probability that neither squamous abnormalities nor squamous pre-cancer was present in 2009.

8.8 In this regard, it was submitted first that the trial judge erred in his conclusion that a rescreening or colposcopy in 2009 would have revealed squamous pre-cancer cells which ultimately developed into the cancer with which Ms. Morrissey had been diagnosed in 2014. This conclusion was based on what Quest argued was an inaccurate and unsubstantiated assertion made by Prof. Wells that both glandular and squamous pre-cancer existed in 2009, whereas the evidence was said to indicate that only glandular abnormalities may be identified from the 2009 slide.

8.9 In addition to this error, counsel for Quest argued that the trial judge failed to engage with the aggregate evidence in relation to the 2009 and 2012 slides and the 2014 smear, all of which returned negative results, and the 2014 trachelectomy specimen. This specimen, acquired during the radical trachelectomy procedure performed on Ms. Morrissey in 2014, was said by Prof. Austin to have indicated limited evidence of CIN3 cells, and its result was not referred to in the judgment of the High Court. Prof. Austin gave evidence on behalf of Quest that the features of Ms.  Morrissey’s case suggested that Ms.  Morrissey’s cancer had progressed more rapidly than usual. This was accompanied with evidence to the effect that cancer may develop more rapidly amongst some younger women. It is submitted that the trial judge failed to engage with the totality of this evidence when reaching his conclusion on causation.

8.10 In response to the submissions of Quest in relation to the evidence of its U.S. expert witnesses, counsel for the Morrisseys submitted that, on the basis of the evidence which had been adduced in respect of the influence of the Guidelines, the trial judge was entitled to form his assessment of the appropriate weight to be given to the evidence of Prof. Austin and Mr. Feit In particular, counsel referred to the affirmation to comply with the Guidelines which other U.S. expert witnesses, who were members of the American Society of Cytopathology, confirmed in evidence that they had given. Further, counsel relied on the evidence of Dr. McKenna to the effect that borderline categories of abnormal cells cannot be underestimated and can be indicative of high-grade abnormalities on further investigation.

8.11 Further, it was argued on behalf of the Morrisseys that the trial judge was entitled to assess the appropriate weight to be given to the expert evidence in relation to blind reviews and hindsight bias. Evidence was adduced on behalf of the  Morrisseys in relation to the inadequacies of blind reviews generally and Dr. McKenna further stated in evidence that the blind review of the 2009 slide had been compromised as the slide had markings on it and therefore was not a true reproduction of what was before the original screener. Prof. Roese, it was submitted, had no experience in cytology screening and did not engage with the facts of this case in giving evidence, and counsel argued that the trial judge was entitled to determine that he did not require the assistance of Prof. Roese in respect of the impact of hindsight bias.

8.12 Finally, in respect of the trial judge’s analysis as to causation, counsel on behalf of the Morrisseys submitted that there was no error in his finding that squamous pre-cancer was likely to have been in existence by 2009 and that this would have been identified following a rescreening and would, as a matter of probability, have led to a referral for a colposcopy had the 2009 slide been correctly interpreted. This finding was based on the evidence of Prof. Shepherd that the lesion was likely to have developed over an eight to twelve-year period and his evidence to the effect that, where glandular abnormalities are found it is highly likely that squamous abnormalities will co-exist, as the same oncogenic stimulus is affecting the stem cells of the cervix, which differentiate along either squamous or glandular lines.

8.13 Further, counsel for the Morrisseys denied that there was a failure to engage with the totality of the evidence adduced by Quest. That borderline abnormalities were identified on the 2009 and 2012 slides, it was submitted, did not lead to the conclusion that there were no high grade abnormalities or precancerous lesions in existence at that time. Prof. Wells gave evidence that there was not always a close correlation between the cytology and the subsequent histopathology so that cytology screening might show minor abnormalities whereas histopathology may often show more serious disease. The negative result of the 2014 smear, which was taken following Ms.  Morrissey’s cancer diagnosis, was said by Prof. Shepherd to be readily explicable as it is said not to be uncommon that smears taken from a cancerous cervix are obscured by the presence of inflammatory cells, blood and pus. In addition, it was submitted that there was no inconsistency between the findings of the 2014 trachelectomy specimen and the abnormalities identified on the 2009 slide. Prof. Wells gave evidence that any glandular abnormality could have been overgrown by the squamous cancer.

8.14 Finally, it was argued on behalf of the Morrisseys that the trial judge was entitled to dismiss Quest’s contention that Ms.  Morrissey’s cancer was one which rapidly developed, particularly in light of the evidence of both Prof. Wells and Prof. Shepherd to the effect that the trachelectomy specimen indicated that Ms.  Morrissey’s cancer was a moderately differentiated one and did not bear the characteristics of an aggressive or rapidly growing cancer. Both experts also rejected the proposition that cancer develops more rapidly amongst younger women.

8.15 Before leaving the question of causation, I should make one point which is applicable to the case against both Quest and against Medlab. It was accepted by counsel on all sides that this case proceeded before the High Court on the basis that the task of the trial judge was to determine causation as a matter of probability. In other words, was it more probable than not that, had any relevant negligence not occurred, a benign or improved outcome would have ensued. Counsel agreed that no case had been made which suggested that, following the jurisprudence identified in Philip v. Ryan [2004] IESC 105, [2004] 4 I.R. 241, it might, arguably, be appropriate to assess causation on the basis of the likelihood or otherwise of a benign or improved outcome and to measure damages accordingly. There certainly are some types of cases where the proper approach is not to decide what consequences would have resulted from the absence of negligence by determining that question on the balance of probabilities, such that full damages would be awarded if there was a slightly greater than 50% chance of a benign or improved outcome but no damages at all would be awarded if there was a slightly less than 50% chance of such a result. Rather, the approach identified in Philip v. Ryan is that, in the types of cases to which it applies, it is appropriate to award damages which are broadly proportionate to the likelihood of a benign or improved outcome, so that the relevant damages would approximate to full damages if there is a very significant likelihood of a benign or improved outcome in the absence of negligence but that limited but proportionate damages would be awarded even if it there was a less than 50% probability of a benign or improved outcome, but some realistic possibility of such a consequence.

8.16 I would decline, therefore, to express any view as to whether cases of this type might fit in the jurisprudence identified in Philip v. Ryan. I feel it appropriate to make that comment lest, by not dealing with the issue, it might be later asserted that I had, by implication, agreed that the approach adopted in this case was necessarily the correct one. That is an issue which I would leave to any case in which the issue was fully fought.

9. The Medlab Case
9.1 The first issue raised by Medlab is in respect of the trial judge’s determination of the factual question of what was to be seen on the 2012 slide. This, the trial judge held, in accordance with the guiding principles set out in Penney Palmer, was to be assessed prior to any consideration of the standard of care required under the Dunne test. On the evidence given by Dr. Madrigal, his computer-generated analysis of the 2012 slide identified over 35,500 squamous cells. It was Medlab’s case that on this evidence there were more than 5,000 cells on the slide, as required under the Bethesda criteria, and therefore the slide was, as a matter of fact, adequate. Thus, in circumstances where Medlab’s cytoscreeners arrived in 2012 at what is submitted to be a correct conclusion as to the adequacy of the slide, it was argued that there could not have been a finding of negligence by reference to the particular method used to arrive at that result.

9.2 Medlab contended that, in his judgment, the trial judge had accepted as a fact that there were over 35,500 cells on the 2012 slide. While not strictly falling under the “failure to engage” jurisprudence, it was submitted that he erred in subsequently dismissing Dr. Madrigal’s evidence as to the alternative method of counting cells as “irrelevant” and in failing to answer the question as to how many cells were on the slide. Medlab further argued that the trial judge erred in concluding that, in the event of any doubt as to adequacy, the slide must be examined using the ThinPrep method, because Medlab was held to be obliged under the terms of its contract with Cervical Check to do so. The terms of this contract, Medlab submitted, cannot be relied on in a negligence claim. It was also argued that the contract, in any event, obliged Medlab to test in accordance to the Bethesda System, which method was said not strictly to require a formal adequacy test to be carried out in any particular manner.

9.3 Medlab further submitted that there was a lack of engagement on the part of the trial judge with its case in respect of the proper approach to be applied by a reasonably competent cytoscreener when assessing the adequacy of a slide. In the first instance, it was submitted that the evidence adduced by Medlab demonstrated that the Bethesda System does not strictly require a formal adequacy test to be carried out and that applying the Dunne principles, the reasonably competent screener could have found the 2012 slide to be adequate without conducting a formal assessment. Two expert cytoscreeners, Ms. Frasch and Ms. Drew, both gave evidence on behalf of Medlab that they had conducted a blind review of the 2012 slide and had assessed it as adequate without considering it necessary to carry out a formal adequacy review. Ms. Tan, the Morrisseys’ expert cytoscreener, also gave evidence that the 2012 slide could have been passed for adequacy without a formal assessment. Medlab argues that this evidence was not properly addressed by the trial judge when, at paras. 123 and 124 of his judgment, he concluded that no screener of equal status or skill acting with ordinary care would have failed to subject the slide to an appropriate test as to adequacy and made the assumption that the two screeners who originally reviewed the slide in 2012 did not perform a formal adequacy test.

9.4 Further, and in the alternative, Medlab submitted that the trial judge’s finding that, as a matter of probability, a formal test would have resulted in a finding of inadequacy, made at para. 125 of his judgment, cannot be reconciled with the evidence of Medlab’s expert cytoscreener, Ms. Stowe, who conducted a formal adequacy review in accordance with the Bethesda system and found the slide to contain a sufficient number of cells.

9.5 Medlab also argued that the trial judge failed to engage with the evidence on causation which was tendered by expert witnesses on behalf of both Quest and Medlab. The trial judge concluded that, had Ms. Morrissey been referred for a repeat smear following a finding of inadequacy in respect of the 2012 slide, it would have resulted in colposcopy which would have revealed the existence of squamous pre-cancer cells. This finding, it was submitted, was reached in the absence of any evidence as to the existence of glandular pre-cancer cells in the 2012 slide or in the 2014 trachelectomy specimen, which would have indicated the likely coexistence of squamous pre-cancer. Further, this conclusion was said to have been reached without addressing the evidence adduced by Quest which indicated that Ms.  Morrissey’s might have been a particularly rapidly-developing form of cancer.

9.6 In response to Medlab’s arguments, counsel on behalf of the Morrisseys submitted that the findings of the trial judge in relation to the adequacy of the 2012 slide were supported by credible evidence. First, it was said that the factual question as to adequacy to be determined by the trial judge related to whether there was a sufficient number of well-visualised cells on the slide. In accordance to the method prescribed by the Bethesda system, the slide must contain 5,000 “well-visualised” cells and be “satisfactory for evaluation”. These cells must be well-visualised for the cytoscreener operating in laboratory conditions, it was contended, rather than for a computer conducting an automated analysis. Both the terms of Medlab’s contract with Cervical Check and the ThinPrep manufacturer’s specifications require compliance with the Bethesda System. Further, the  Morrisseys rely on the evidence of Dr. McKenna to the effect that an alternative method of testing adequacy, such as that employed by Dr. Madrigal, has yet to be clinically shown to be of the highest standard and proven to be as safe as the prescribed method that is being departed from.

9.7 In addition, counsel on behalf of the Morrisseys referred to the evidence given by a number of expert witnesses to the effect that the slide was not adequate for cellularity, including that of Prof. Pitman, who appeared on behalf of Medlab. Counsel for the  Morrisseys also pointed out that Ms. Tan had given evidence that she reported the sample as adequate but only because she had identified abnormalities on the slide.

9.8 The submissions of the Morrisseys in respect of the trial judge’s findings in relation to causation are as stated in full above. It is submitted that the trial judge’s finding that a colposcopy carried out in 2012 would have been likely to identify squamous pre-cancer was based on credible evidence. In particular, counsel for the  Morrisseys referred to the evidence of Prof. Shepherd to the effect that the cancerous cells were likely to have been developing over an eight to twelve-year period and that, on the balance of probabilities, they progressed to an invasive cancer in early-mid 2013. Prior to this, Prof. Shepherd stated, a high-grade lesion would have been in existence. Further, counsel for the  Morrisseys relied on the evidence of Prof. Shepherd to the effect that where glandular abnormalities are found, it is highly likely that squamous abnormalities will co-exist, as the same oncogenic stimulus is affecting the stem cells of the cervix.

9.9 Having set out in some detail the precise contentions put forward both by Quest and by Medlab concerning what was said to be a failure of the trial judge to engage adequately in his judgment with certain aspects of their cases on the facts, it is necessary to address whether any of the points made are sufficient to warrant allowing the respective appeals of the laboratories.

10. Discussion on Engagement
10.1 The starting point has to be to reemphasise the fact that the threshold for successfully establishing that there has been a sufficient lack of engagement by a trial judge with the case made by a party who appeals against the first instance decision is a high one. As MacMenamin J. pointed out in Leopardstown Club, as referred to earlier in this judgment, an appellate court may only reverse the decision of a trial judge “where there is a clear non-engagement with essential parts of the evidence”. As MacMenamin J. also pointed out, the ultimate obligation on a trial judge is to give a reasoned judgment. If the analysis of the evidence and the basis on which certain evidence is preferred to a conflicting account fails to meet the requirement that the judgment is “truly reasoned” then an appellate court must set aside the judgment concerned. But it is clearly insufficient to that end to simply identify some piece of relevant evidence that is not mentioned in the judgment or to suggest that the basis for a trial judge preferring certain evidence over some other piece of evidence is not as fully set out as it might be. The threshold is much higher than that.

10.2 On the other hand, it is clear that an attack on the judgment of a trial judge on the basis of a “failure to engage” is different from a suggestion that there was no evidence on which the trial judge could have come to the conclusion which he/she reached, under what might be described as a “pure” Hay v. O’Grady point. Much of the argument put forward on behalf of the Morrisseys centred on identifying evidence which, it was said, the trial judge was entitled to accept and which, if accepted, led to the conclusions of fact set out in the judgment. However, I did not ultimately understand either counsel for Quest or counsel for Medlab to suggest that there was no evidence from which the trial judge could have reached the conclusions of fact which are to be found in the judgment. Therefore, pointing out that there was such evidence does not really advance the argument.

10.3 It seems to me that there really are three questions which need to be addressed under this heading. First, can it be said that the trial judge did fail to address any aspects of the respective cases made on the facts by Quest and Medlab? Second, and to the extent that it may be possible to say that there were aspects of those respective cases which were not fully addressed, were the issues in respect of which any such failure might be established sufficiently central to the case as a whole to warrant holding that it was an “essential part” of the case on the evidence in the sense in which MacMenamin J. used that term in Leopardstown Club? Third, was the extent of any non-engagement sufficiently serious that it can properly be said that the trial judge has not really given reasons as to why one side succeeded and the other failed on an essential element of the case?

10.4 In addressing the issues which arise under this heading, it is important to start by emphasising the particular circumstances in which the trial of these proceedings was conducted in the High Court, insofar as those circumstances might be said to have had a reasonable impact on the way in which the judgment in this case was crafted by the trial judge.

10.5 First, it must be said that, commendably, all concerned were anxious that judgment be given as quickly as possible. There were obvious reasons why it was important that the Morrisseys should know the result of their case at the earliest possible time. There is also the fact that at least some of the issues which arise in these proceedings have the potential to also arise in other cases brought before the High Court claiming negligence arising out of CervicalCheck or where similar cases are brought before the CervicalCheck Tribunal.

10.6 In that context, the unusual step was taken of dispensing with oral closing submissions after the parties had filed written submissions subsequent to the evidence being completed. It should be emphasised that this is an unusual procedure. In straightforward cases, oral submissions will frequently take place immediately after the evidence completes. In more complex cases, it may be considered advantageous to give the parties an opportunity to file written submissions after the evidence has finished. While it is true that, in many complex cases, written submissions may be filed in advance, such submissions are necessarily based on the evidence the parties consider is likely to be given. There will almost inevitably be some difference between the evidence as it has emerged at the trial (including questions over which evidence should be preferred in cases of conflict) compared with how either party might have assumed, in advance, that the evidence was likely to turn out. For that reason, written submissions which reflect the evidence as actually given, as opposed to the evidence which might have been anticipated, can be useful.

10.7 But in such cases, it almost inevitably follows that there is some oral debate after closing written submissions have been filed. The purpose of that debate is to tease out issues raised and allow the court to clarify, often not least in its own mind, the precise issues which need to be addressed in the judgment. However, all parties went along, for understandable reasons, with the truncated procedure adopted in this case.

10.8 While it is entirely commendable that all concerned sought to bring the proceedings to a close as quickly as possible, it must be acknowledged that truncating the process does carry with it the risk that not everything will be done quite as thoroughly as might otherwise have been the case. While proceedings should always be concluded as quickly as is reasonably possible, it must be emphasised that truncating proceedings may well have consequences. Where the parties go along with such a truncated process, then it equally follows that at least some of the consequences cannot be taken to give rise to any legitimate complaint. In saying that, it must, of course, be acknowledged that there is an irreducible minimum below which it is not permissible to go. In the context of the issues which arise under this heading, a judgment might so lack in reasoning or demonstrable engagement with the issues that an appellate court could not allow it to stand notwithstanding the process adopted even with the agreement of the parties. But it does seem to me that it is appropriate for this Court to take into account the truncated process which was adopted in these proceedings in assessing whether the reasoning of the trial judge was adequate.

10.9 As already noted, the first point made under this heading by Quest concerned the approach of the trial judge to the evidence given by certain American expert witnesses. It may be that it would have been preferable if the trial judge had gone into greater detail concerning the actual evidence given by those experts and had given more detailed reasons, connected with their evidence and the competing evidence given by the corresponding experts called on behalf of the Morrisseys, for preferring the case made on behalf of the  Morrisseys in that regard. But the trial judge did give some reasons for preferring the evidence tendered by the  Morrisseys’ experts. In that context, it does not seem to me that it can be said that there was a “clear non-engagement” by the trial judge such that the threshold identified by MacMenamin J. in Leopardstown Club has been met in respect of this aspect of the case.

10.10 The next aspect of Quest’s case in respect of non-engagement concerned the trial judge’s approach to blind reviews. There is no doubt that Cross J. did offer some general comments on the topic of blind reviews and did put forward reasons for his conclusion that a blind review was not necessary. It would undoubtedly have been preferable, however, if the trial judge had explained in more detail why he did not consider that the blind review evidence tendered in this case was preferable to the views expressed by the experts called on behalf of the Morrisseys. If the process followed in this case had followed the normal course of events, then there might have been a basis for suggesting that the judgment in that regard was insufficiently reasoned. However, it does not seem to me that the judgment falls below the irreducible minimum of reasoning which would require this Court to set aside the judgment, whether or not the parties have gone along with a truncated process.

10.11 The third area concentrated on by counsel for Quest related to the trial judge’s finding in respect of causation. I am of the view that it would have been appropriate for the trial judge to have set out in more detail the reasons for preferring the evidence of the Morrisseys’ experts on the causation issue. However, certain reasons were given for the trial judge’s conclusions on causation and they do not seem to me to fall below the irreducible minimum of reasoning which, for the reasons already set out, I consider to be the appropriate threshold having regard to the process adopted in the trial in the High Court.

10.12 Turning then to the issues relied on by Medlab, it should be recalled that the first such issue concerned the actual number of cells present on the relevant slide. Using a computer-based method, Medlab’s expert witness concluded that there were 35,500 cells on the slide, which would be well above the threshold for adequacy of 5,000. It seems to me that the debate on this issue became overly-centred on the first question identified in Penney Palmer, which suggests that a court should initially decide what the factual situation actually was. It was certainly open to the trial judge to take the view that the question which must be addressed by a screener in determining whether a slide is adequate is as to whether there is a sufficient number of well visualised cells, in accordance with established practice. Whether or not the method adopted by Medlab’s expert could be said to establish adequacy on that basis may be debatable. It would, again, have been preferable if the trial judge had given more detailed reasons for not considering that evidence to be relevant. However, yet again, some reasons are given and they do not seem to me to fall below the irreducible minimum threshold.

10.13 The next issue raised on behalf of Medlab complains that there was what was said to be an inadequate engagement by the trial judge with the evidence given by two expert screeners called on its behalf, who gave evidence that they had subsequently looked at the slide in question and had passed it for adequacy. That evidence arose in the context of the question as to the proper process to be followed in reaching an adequacy assessment. All of the experts appeared to agree that it was open to a screener to reach a positive conclusion in respect of adequacy without doing a formal analysis. This was said to be the proper approach where adequacy was clear. A formal approach to the assessment of the number of cells was only required to be adopted where the initial assessment could not be said to have shown the sample to be clearly adequate. The two relevant witnesses had indicated that they did not consider, when reviewing the slide in question, that a formal analysis would have been required. However, as counsel for the Morrisseys pointed out, one of Medlab’s own witnesses had considered that the slide was not adequate and another witness had only considered it to be adequate because of finding abnormalities. While, again, it might be said that more detailed reasons could have been given for preferring the evidence of some of the witnesses over others, the trial judge did give some reasons and, in my view, the irreducible minimum threshold was not, therefore, met.

10.14 Finally, Medlab also made complaint about the trial judge’s engagement with the evidence on causation as set out earlier in this judgment. Here, again, there was competing evidence as to what would have happened had Medlab assessed the relevant slide as being inadequate, thus leading to a further sample being required. There was undoubtedly a significant difference of medical opinion as to what might have occurred in those circumstances. The trial judge did address those issues in his judgment but did so in a way which might well have fallen short of the level of reasoning which might have been required had this case followed a normal process. However, again, it does not seem to me that the level of reasoning of the trial judge fell below the irreducible minimum threshold.

10.15 It will be seen, therefore, that I would consider that, in respect of some of the complaints made, it would ordinarily be justified to regard relevant aspects of the judgment as being insufficiently reasoned, even allowing for the high threshold which applies in reaching such a conclusion. However, I do not consider that any lack of reasoning falls below the irreducible minimum which would lead the Court to overturn the decision of the High Court, irrespective of the manner in which the trial was conducted. If the judgment of the trial judge had been delivered in circumstances of ordinary expedition and with the benefit of final oral submissions, it might well have been impossible to regard the judgment as sufficiently reasoned to withstand challenge. Of course, the very fact that there might have been oral submissions would, in those circumstances, cast some light on that very question. The focus of the debate during those oral submissions might give some guidance to the court as to the extent to which any particular issues truly remained as significant and material at the final close of the proceedings. Such an assessment is more difficult to reach in the absence of closing oral submissions directed towards teasing out the true issues which remain for debate between the parties and which, therefore, impact on the questions which need to be addressed in the judgment.

10.16 That being said, I consider that, in the particular circumstances of this case, and having regard specifically to the somewhat expedited and truncated procedure adopted, the reasoning of the trial judge is adequate to withstand challenge.

11. Liability of the HSE
11.1 As noted earlier, the HSE has appealed the findings of the trial judge in respect of its liability for the alleged negligence of Quest and Medlab. As mentioned, in this regard the trial judge held that the  HSE was primarily liable in respect of the way in which the tests were carried out but also held that the  HSE was vicariously liable for the negligence found against the two laboratories. The statutory functions of the National Cancer Screening Service Board, which was responsible for the establishment of the CervicalCheck programme in 2008, were set out in the National Cancer Screening Service Board (Establishment) Order 2006 (S.I. 632/2006) (“the 2006 Order”).Article 6(b) thereof provides that the Board was required to:-

“[C]arry out or arrange to carry out a Programme for the early diagnosis of cervical cancer, and arrange for the primary treatment of cervical cancer in such classes of women as may be determined by the Minister from time to time.”

11.2 On the dissolution of the National Cancer Screening Service Board in 2010 (under s. 28 of the Health (Miscellaneous Provisions) Act 2009), the HSE assumed the functions of the Board. In respect of the trial judge’s finding that the  HSE had a primary liability in respect of the acts of the laboratories, the  HSE submitted that the extent of its duty under the statutory provision quoted above is to carry out, or to arrange to carry out, a competent cervical screening programme and that this duty had been complied with. The  HSE, it was argued, had not sought to assume for itself a duty to perform the relevant functions of the laboratories, being the screening and reporting of smear samples, rather it had only arranged for their performance. In support of its contention that its duty was solely an organisational one, the  HSE submitted that the operation of the CervicalCheck programme was dependent on contracting out to third party service providers which could provide services with a turnaround time which the  HSE was unable to match. It was further submitted that while the  HSE had sought to impose obligations of quality assurance, this did not in any way alter the nature of its own duty.

11.3 The HSE disputed the finding that it held a non-delegable duty to take reasonable care in the interpretation or reporting of smears by individual cytologists employed by the contracted laboratories. It was accepted that a hospital could be said to owe a non-delegable duty to provide its patients with skilful treatment and therefore be liable in negligence for the acts of all of those who administer treatment in that hospital, whether they are employed by the hospital or engaged as independent contractors (see, to this end, the judgments of Lord Greene M.R. in Gold v. Essex County Council [1942] 2 K.B. 293 and Denning L.J. in Cassidy v. Ministry of Health [1951] 2 K.B. 343). However, the  HSE argued that the service provided by the CervicalCheck programme is not akin to a hospital service and that the persons who take part in a screening programme are not comparable to patients in the care of a hospital. To this effect, the  HSE relied on the decision of the Court of Appeal for England and Wales in Farraj v. King’s Healthcare NHS Trust, [2009] EWCA Civ 348, [2010] 1 W.L.R. 2139, where it was held that the defendant hospital was not liable for the negligent acts of a third party laboratory which had been contracted to perform tasks relating to genetic screening. This finding was made on the basis that the claimants in the case had not been admitted to the hospital for treatment and what was described as the “special duty” that exists between a patient and a hospital, where the hospital undertakes the care, supervision and control of persons those who are in special need of care, was therefore not found to be present.

11.4 The HSE also sought to distinguish these proceedings from the facts in Byrne v. Ryan, as was cited by the trial judge in support of his conclusion, which concerned the imposition of a primary liability on the defendant hospital for the negligence of a consultant in the course of his treatment of the plaintiff. This case, the  HSE submitted, was in fact decided by Kelly J. on the basis of the existence of an employment relationship between the hospital and the consultant, who was a practitioner in the full time service of the hospital in question.

11.5 Further, the HSE took issue with the acceptance by the trial judge of the principles of Woodland v. Essex County Council, a decision of the U.K. Supreme Court which approved of the doctrine of the non-delegable duty, as identified in the “hospital cases”, Gold v. Essex County Council and Cassidy v. Ministry of Health, cited above. The “essential element” giving rise to this duty, as described by Lord Sumption at para. 24 of his judgment, is the defendant’s control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility. The criteria required to establish the existence of a non-delegable duty were set out in the preceding paragraph of his judgment as the following:-

“(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.
(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another…
(3) The claimant has no control over how the defendant chooses how to perform those obligations, i.e. whether personally or through employees or through third parties.
(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.
(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.”
11.6 The HSE argued first that none of the above criteria were fulfilled in respect of the role it performs in the provision of the CervicalCheck Programme, other than factor (3), as it was conceded that Ms.  Morrissey did not have any control over the screening of her samples or her treatment. Furthermore, the  HSE contested the trial judge’s approval of the doctrine of non-delegable duty as a significant development in Irish law which, it submitted, has not been expressly adopted by the courts in this jurisdiction, and which represented a form of organisational or enterprise based liability which would be more appropriately adopted by way of legislative determination.

11.7 Finally, the HSE argued that any imposition of a non-delegable duty must be justified by a strong policy rationale. To this end it was submitted that, in fact, a finding of primary liability would have negative consequences for the operation of a number of  HSE programmes that involve the outsourcing of health services and that the associated increased burden of risk on the  HSE would effectively lead to a reduction in the scope of the services which could be provided.

11.8 Counsel for the Morrisseys, in response, submitted that the non-delegable duty of care owed by the  HSE, both under statute and at common law, arises from the nature of its relationship with the women participating in its cervical screening programme. It was argued that a statutory non-delegable duty arises from the wording of Article 6(b) of the 2006 Order, in which it is said to be implicit that the  HSE has a duty both to take reasonable care in the provision of the programme and to ensure that those carrying out services on its behalf exercise reasonable care. It was submitted that this statutory duty cannot be evaded on the basis of the argument that the  HSE’s obligations were to be discharged by an independent contractor.

11.9 At common law, the Morrisseys submitted, a non-delegable duty of care arises under the criteria set out in Woodland, as quoted above, and further suggested that such a duty has been recognised in this jurisdiction in Byrne v. Ryan. Counsel for the  Morrisseys disputed the  HSE’s interpretation of the decision in Byrne as one which was determined solely on the basis of an employment relationship. Particular reliance was placed on para. 126 of the judgment of Kelly J., where it was held that the hospital owed a primary duty to the plaintiff given the fact she was a public patient who was referred to the hospital and not to an individual consultant. In that regard, Kelly J. cited the following comments of Denning L.J. in Cassidy v. Ministry of Health with approval:-

“I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services.

…

…[T]he hospital authorities accepted the plaintiff as a patient for treatment, and it was their duty to treat him with reasonable care. They selected, employed and paid all the surgeons and nurses who looked after him. He had no say in their selection at all. If those surgeons and nurses did not treat him with proper care and skill, then the hospital authorities must answer for it, for it means that they themselves did not perform their duty to him.”

11.10 The Morrisseys argued that the five criteria as set out in Woodland, which are required to establish the existence of a non-delegable duty, had in fact been fulfilled in this case. First, it was submitted, Ms.  Morrissey was one of a number of persons in the care of the CervicalCheck programme for the purpose of their protection from developing cervical cancer and she was in a position of vulnerability as a result, because a misreading of her samples would give rise to a risk of significant harm. Counsel suggested that the  HSE had recognised this responsibility to protect Ms.  Morrissey against such a risk by providing detailed and extensive quality assurance guidelines to the contracted laboratories.

11.11 Second, it was submitted that an antecedent relationship existed between Ms. Morrissey and the  HSE, as the CervicalCheck programme was a public service which involved the provision of medical care. The programme, it was said, involved both the screening and, if required, treatment of the relevant population and independent laboratories had been contracted to screen smear samples as well as to direct the future treatment of those screened. Counsel sought to distinguish these facts from the situation of the claimants in Farraj, as relied on by the  HSE. In that case, the claimants resided outside the U.K. and sought to have a sample of foetal tissue tested for analysis. Their consultant in Jordan sent what was thought to be an adequate sample to the NHS, which did not have the capacity to clean and culture the sample and so this sample was sent on to an independent laboratory for that purpose. It was held that the NHS did not have a non-delegable duty towards the claimants, and counsel for the  Morrisseys submitted that this was due to the absence of the central requirement of an antecedent relationship between the parties to the case.

11.12 The fulfilment of the third criterion, that of an absence of control on the part of Ms. Morrissey over the performance of the functions of CervicalCheck, was conceded by counsel for the  HSE. Fourth, it was submitted by counsel for the  Morrisseys that the  HSE had delegated to the laboratories the task of screening and reporting of smears, which was said to be an integral part of the  HSE’s contended duty to take reasonable care in the provision of the programme. That the  HSE had retained, in the terms of its contracts with the laboratories, full supervisory jurisdiction over the provision of these services, by means of systems of quality assurance, audits and site inspections, was suggested by counsel to be indicative of an assumption of responsibility on the part of the  HSE over the performance of these functions. Further, it was contended that the fact that the  HSE had delegated one of its functions to a third party because it did not have sufficient capacity to perform that function is immaterial. Finally, it was submitted that, if the preceding criteria have been fulfilled, it followed that any negligence established against Quest and Medlab arose in the performance of the function assumed by the  HSE and delegated to the laboratories, that is, in the screening and interpretation of Ms.  Morrissey’s smear tests. I will turn to a discussion of the issues arising in respect of the possible primary liability of the  HSE in due course. However, I will first set out the position of the parties in respect of vicarious liability.

11.13 As noted earlier, the HSE also contested the trial judge’s finding that it is vicariously liable for the activities of Quest and Medlab by reason of the control which the  HSE exercised over the laboratories under the terms of their contractual arrangements. It was submitted that vicarious liability often arises in an employment relationship, or one analogous to the same, and that the default position under tort law is that a party is not generally liable for the acts of an independent contractor such as Quest or Medlab.

11.14 On the facts of this case, the HSE submitted that it possessed no direct control over the laboratories which would suggest that their relationship was analogous to that of an employment relationship, as was said to be required to establish vicarious liability in the judgment of Hardiman J. in O’Keeffe v Hickey [2008] IESC 72, [2009] 2 I.R. 302. In particular, the  HSE contended that it had no real and exercisable power of control over the acts of the cytoscreeners. Further, the  HSE disputed the contention that the provision of quality assurance guidelines in its contracts with the laboratories was indicative of vicarious liability. It was said that these provisions do not “guide the hand” of those carrying out the expert functions of the laboratory.

11.15 Moreover, it was argued that the concept of control is subsidiary to the ultimate question as to whether a relationship akin to an employment relationship exists. On that issue, the HSE submitted that, by the terms of their contracts, Quest and Medlab were in business on their own account and provided a service that the  HSE could not provide in terms of turnaround speed. This was said to be indicative of the engagement of an independent contractor for its skills and expertise rather than of the existence of a relationship analogous to employment. Furthermore, the  HSE contended that the laboratories were neither “part of the organisation” nor “integrated” into the business of the  HSE in a manner which could give rise to the imposition of vicarious liability. The  HSE pointed to a number of features of the business relationship between itself and the laboratories which, it was said, indicated that the true nature of the relationship involved the engagement of an independent contractor. Amongst those relevant factors was said to be the fact that the laboratories provided their own equipment and had responsibility of the management of their affairs, together with the fact that the laboratories had assumed the financial risk of the enterprise and that the laboratories had the opportunity for profit through the arrangement of their affairs.

11.16 Finally, it was submitted on behalf of the HSE that the policy considerations which usually underpin a finding of vicarious liability, such as risk creation and enterprise liability, as referred to by Hardiman J. in his judgment in O’Keefe, are absent in the present case. The  HSE, in its arrangement of the CervicalCheck programme, is not operating for profit and is not “creating” any risk, in the commercial sense.

11.17 On behalf of the Morrisseys, it was submitted that, by virtue of what was said to be the extraordinary degree of its control over every aspect of the laboratories’ screening of the slides, the  HSE is vicariously liable for the negligence of Quest and Medlab. It was contended that the essence of vicarious liability is control, as held by Hardiman J. at para. 47 of his judgment in O’Keefe, and that the question of vicarious liability is no longer resolved simply by the question of whether the tortfeasor is an independent contractor.

11.18 In dictating the methodology by which the slides would be reviewed by the labs, it was submitted, the HSE exercised a degree of control that would not ordinarily be exercised over a truly independent contractor. Counsel for the  Morrisseys contested the  HSE’s reliance on the decision of the Supreme Court in O’Keefe, where it was held that the State was not vicariously liable for the sexual assault of the claimant perpetrated by the claimant’s national school teacher. That case, it was submitted, was based on an entirely different factual matrix, being that the sexual assault committed by the relevant teacher evidently fell outside the scope of his employment. In addition, the rules which the Minister for Education had laid down for national schools were general in nature and did not go to the governance of the detailed activities of any individual teacher. On the facts of this case, it was submitted, the acts of the cytoscreeners clearly fell within the scope of their employment and the  HSE exercised a high level of control over the screening activities at the laboratory. Furthermore, counsel indicated that the application of the “close connection” test, as adopted by Fennelly J. in O’Keefe and with whom the majority of the Supreme Court agreed, which considers the closeness of the connection between the work which the individual was engaged to carry out and the tortious act, would also lead to a finding of vicarious liability in this case.

11.19 Finally, on the level of policy, it was argued on behalf of the Morrisseys that the  HSE ought not to be able to divest itself of any responsibility for failings in the delivery of public health services through the outsourcing of its services

11.20 In the light of those submissions, I propose to turn firstly to the question of whether the trial judge was correct to hold that the HSE was vicariously liable for the actions of the laboratories.

12. Vicarious Liability
12.1 Both sides sought to place reliance on the judgment of Hardiman J. in O’Keefe v. Hickey. There was, however, something of a dispute between the parties as to whether the key component in the relevant test centred around the legal relationship between the parties or on the degree of control which one party exercised over the way in which the other carried out its task.

12.2 It may be said that where difficult or novel issues arise concerning the application of well-established concepts in common law to particular circumstances, it may be useful to identify what the fundamental principle or purpose behind the law concerned may be, for that may give valuable guidance as to how the practical rules regarding the application of the relevant aspect of the common law might be applied in such circumstances. However, there are areas where it may be difficult to discern any overarching but consistent fundamental principle. Rather, in some areas, the case law has grown up as part of an attempt to deal with a range of different circumstances. In some such cases it may well be that the proper approach to the evolution of the common law in such an area is to avoid over-radical developments, but to extend the parameters of the established case law to novel or evolving areas in a manner which is at least analogous to the way in which the existing case law has developed.

12.3 The former might be described as a “back to first principles” model. The latter might be described as an “evolution by analogy” approach. In my view, the former approach is preferable should it prove possible to discern, with any real degree of clarity, what the underlying principles are. However, the latter approach may be more appropriate where it is not really possible to identify a coherent underlying basis which informs all of the existing case law.

12.4 It will be necessary to return in due course to the most recent judgment of this Court on the issue of vicarious liability, being Hickey v. McGowan and anor [2017] IESC 6, [2017] 2 I.R. 196. However, in this context, it is appropriate to note that O’Donnell J. reached his conclusions on the proper principles to be applied in that case by adopting what he considered “to be the cautious and incremental approach outlined by Fennelly J. in O’Keefe”. O’Donnell J. indicated that he proposed adopting that approach, having considered what seemed to be the different approaches adopted by, respectively, Hardiman and Fennelly JJ.

12.5 In this same context, it may be appropriate to refer to Robinson v. Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] 2 W.L.R. 595. While the Supreme Court of the United Kingdom in that case was concerned with determining whether a duty of care existed in the particular circumstances of that case, it did make comments which seem to me to be appropriate regarding the broader issue of how one should approach the evolution of the common law. In Robinson, it was indicated that what is required in such circumstances is:-

“[a]n approach based, in the manner characteristic of the common law on precedent, and on the development of the law incrementally and by analogy with established authorities”.

I would only add the qualification that, where the existing case law can be seen to derive from some underlying principle or principles, it may be more appropriate to start by seeking to identify how those principles should direct the incremental evolution of the common law. However, that being said, it seems to me that Robinson provides cogent reasoning as to why the “evolution by analogy” approach may well be appropriate in many circumstances not confined to the narrow question of the determination of the existence or otherwise of the duty of care which was at issue in that case.

12.6 There is, in my view, a strong argument for the view that the law of vicarious liability may be more properly dealt with under the “evolution by analogy” approach. That it may be appropriate to impose liability on one person for the negligence of another is, of course, well-established as a legal principle. It would be surprising indeed if, for example, a supermarket could avoid liability for an injury suffered as a result of negligence by simply asserting that the fault was all that of a specified employee. However, there is a strong basis for suggesting that the categories of case in which vicarious liability has been established do not easily give rise to being explicable by reference to some underlying principle or policy. In Imperial Chemical Industries Ltd v. Shatwell [1965] A.C. 656 at p. 685, Lord Pearce said that “the doctrine of vicarious liability has not grown from any clear, logical or legal principle”. Likewise, Tipping J., in the New Zealand Court of Appeal case of S. v. Attorney General [2003] NZCA 149, [2003] 3 N.Z.L.R. 450, commented that the literature was “replete with comments concerning the lack of any coherent or agreed jurisprudential underpinning”. I respectfully agree with those comments. It seems to me to follow that any evolution of the law of vicarious liability or the application of that law to new or evolving circumstances requires an approach much closer to the “evolution by analogy” method to which I have already referred. It is in those circumstances that it is appropriate to look at how the law on vicarious liability has developed both in this jurisdiction and in other relevant common law jurisdictions in relatively recent times.

12.7 It is probably correct to say that, in its original form, the concept of vicarious liability stemmed principally from the legal relationship between the actual wrongdoer and the party who was held to be legally responsible for the actions of the wrongdoer even though not personally at fault. Thus, the relationships of employer and employee, principal and agent or partner and the other members of a partnership have been all held to potentially give rise to the possibility of liability being placed on a person who was not themselves directly responsible for any relevant wrongdoing.

12.8 However, this Court, in Moynihan v. Moynihan [1975] I.R. 192, did extend the concept of vicarious liability to a situation where there was sufficient control by one family member over the actions of another family member, who committed the negligent act in relation to the pouring of tea, which led to an injury. It is clear, therefore, that, for at least the last 45 years, the Irish courts have recognised that informal relationships involving some degree of delegated function and control can give rise to vicarious liability.

12.9 Likewise, the courts in Canada (see John Doe v. Bennett [2004] 1 S.C.R. 436) and England (see for example Various Claimants v. The Catholic Child Welfare Society & Ors [2012] UKSC 56, [2013] 2 A.C. 1) have also accepted that vicarious liability can attach to relationships that are considered to be “akin to employment”. It would seem that many of the Canadian and English cases stem from a desire to ensure, as Lord Phillips put it in Catholic Child Welfare Society, that, insofar as it was fair, just and reasonable, liability for tortious wrong was borne by a defendant with the means to compensate the victim. I have to say that I am not convinced that, laudable as that aim may be, such analysis adds very much to the difficult task of determining the boundaries of vicarious liability. In that context, I would very much agree with the observation of O’Donnell J., which is set out at para. 43 of his judgment in Hickey v. McGowan, regarding the function of vicarious liability.

12.10 Some persons are injured through the fault of others who are neither insured nor have the means to compensate. Obviously the advisors of such persons will seek to extend liability, if it be possible, to anyone who might be a so-called “mark” for damages. But the real question concerns how far it is possible to extend the concept of vicarious liability. Stating that it will be done when it is “fair, just and reasonable” does not really contribute very much to the analysis, for it simply begs the question as to the kind of circumstances that can be regarded as coming within that criteria. The real issue is to identify the type of situation which may legitimately give rise to vicarious liability.

12.11 There were undoubtedly good reasons for departing from an overly-technical view which confined liability to cases coming within specific legal relationships. Persons may well not fit, strictly speaking, within the definition of, for example, employee or agent but nonetheless may be doing something very similar to that which would be done by an employee on behalf of an employer or by an agent on behalf of a principal. There are sound reasons why vicarious liability should not depend on whether, technically, a person might be regarded in law as an employee or as an agent.

12.12 For example, it is interesting to note that a number of the Canadian and English cases arose in the context of sexual abuse within religious organisations. Clearly, the concepts of employee or agent do not always fit neatly within the structures typically encountered within religious orders. Furthermore, such organisations are not normally run as businesses and do not give rise to the kind of relationships with a commercial enterprise that would exist in, for example, a private company. But the substance of the relationship is similar. A member of a religious order who teaches in a school operated by that order may or may not, strictly speaking, have been considered to have been an employee, but their relationship with the school and those who manage or own it would be very similar to the relationship between a teacher employed in a privately owned school and the owners of that school.

12.13 Similarly confining the analysis to the question of control might also lead to unsatisfactory results. Obviously, employers not only identify the work which employees are to do but also exercise a significant degree of control over how it is to be done. However, the extent to which actual control, as opposed to a theoretical entitlement to control, may be exercised in practice may vary greatly from employment to employment. This will particularly be the case where an employee possesses a particular skill or expertise which may not be shared by those who manage the affairs of the employer. The very point of employing the expert professional may be to ensure that certain types of work will be carried out in a way which that professional deems appropriate in circumstances where the employer would not be able to have the work carried out with the requisite expertise in any other way. The reality of the employer exercising any real degree of control over how the work is to be carried out in such a case may be highly theoretical. Thus, just like an overly-technical reliance on the legal basis for the relationship between the parties may present an unduly narrow focus, so also a complete emphasis on control may not provide a satisfactory answer either.

12.14 In those circumstances, it is important to return to Hickey v. McGowan. In that case, the issue was as to the potential liability of a religious order for acts of sexual abuse committed by one of its members. In assessing the question of whether the order concerned might be vicariously liable in such circumstances, O’Donnell J. said the following at para. 38 of his reported judgment:-

“At a crude level the question of whether a relationship between [the first defendant] and [the second defendant] in any particular case is sufficient to give rise to vicarious liability can be addressed by asking how closely the relationship approximates to the classic case of employer/employee. Some of the cases have taken this approach. There is however in my view something slightly absurd in seeking to draw comparisons between the case of religious orders and businesses. Furthermore, the tests and language applicable when considering the case of employment and analogous relationships, such as ‘enterprise’ and ‘risk’ are not easily applicable in the case of religious orders. Indeed, to apply tests drawn from the relatively modern world of commerce and industry to religious organisations which have existed for centuries is in my view, to miss the sheer scale and impact of religious institutions on peoples’ daily lives, particularly in the Ireland of the first three-quarters of the 20th century. The relationship between members of an order and his or her fellow members and indeed the order itself was much more intense, constant and all pervasive than the relationship between an employer and an employee, or in the old language of the late Victorian cases, a master and his servant. Everything in the organisation of religious orders is directed towards emphasising the collective. The vow of obedience involves subjugation of individual will to that of the superior. The vow of poverty has the effect of making the member dependent upon the order’s collective resources. The vow of celibacy emphasises the focus of the member on relationships with the order and with God. The objective of teaching young people is not merely incidental to the work of an order, it is indeed the manner in which the order seeks to achieve its object. For a member of the order, teaching was not merely a job it was a religious vocation. There can no doubt that Brother Cosgrove was in the classroom in Sligo between 1969 and 1972 because he was a member of the Marist Order. That was known, understood and accepted by pupils and parents, and when such individuals looked at the various brothers who staffed the school at any given time, they saw, and were intended to see not just a teacher, but a Marist.”

12.15 O’Donnell J. went on to conclude that, at least at the level of principle, a religious order could be vicariously liable in such circumstances. The reasoning in that regard included the following at para. 37:-

“Looked at in this way, it should be apparent that this is in fact not the most difficult issue in the case. There is evidence that the second defendant was a member of the Marist Order. It is accepted that the Order was a teaching order, and supplied teachers to the school. That was how the second defendant came to be in the school. Teaching was not simply an occupation, but an important and central part of the mission of the Order. The Order was established, and its members bound, not merely by rules, but solemn vows taken by them and considered sacred and binding. Those vows included chastity, obedience, poverty and celibacy. I think we are entitled to take cognisance of the fact that members of religious orders at that time normally wore habits of standard design, identifying them as members of orders, and indeed correspondingly reducing their individuality, while emphasising their part in a collective.”

12.16 On that basis, it seems to me that the overall test must be one which considers whether the nature of the relationship, including the question of control, is such that it is similar in substance, if not in form, to the types of relationships which have traditionally been regarded as giving rise to vicarious liability.

12.17 The Morrisseys argued for greater attention to be paid to the degree of control exercised by the  HSE which, it was said, was significant. The  HSE emphasised the fact that the laboratories were independent contractors and that the screeners were employees of the laboratories and not of the  HSE. There is, in any event, often quite a close correlation between the legal relationship between two parties which arises where one carries out work on behalf of another and the degree of control exercised. Indeed, one of the criteria which courts consider in determining whether a relevant contractual relationship involves one of an independent contractor, sometimes described as a contract for services, or of employment, often described in this context as a contract of service, is the degree of control exercised. It was often said that a key distinction in that context lies between a case where, on the one hand, the employer determined what the other party was to do and, on the other hand, determined not only what the other party was to do but also how they were to do it. There can obviously be grey areas between circumstances where one party simply contracts that a task is to be carried in return for payment and leaves it entirely up to the other party to choose the method of delivery compared with a case where the contracted party is under some form of direct supervision. Skilled employees may very well be left to a large extent to their own devices. Many contracts which are very much at arm’s length will contain clauses specifying the standards to be achieved.

12.18 In my view, the ultimate question which the Court must address is as to whether the level of engagement by one party with the way in which the other party is to carry out a task entrusted to it is sufficient to conclude that there is a real extent to which it can be said that the contracted party is closely integrated into the activities of the employer, not just in respect of the ends to be achieved but as to the manner in which those ends are to be pursued. It is, in my view, difficult to give any true red line, for the type of circumstances which will arise will be many and varied. The legal relationship will certainly be relevant. So, too, will the degree of control. But neither are necessarily decisive particularly where the substance of the practical situation may not always correspond with legal form.

12.19 In that context, it is clear that there were undoubtedly significant provisions in the relevant contracts between the HSE and the laboratories which specified certain standards to be applied. But it does not seem to me that those requirements can properly be characterised as involving the  HSE in the task of directing how the laboratories were to go about their work. In any complex situation it would be extremely surprising if parties entering into a contract of the type with which this case is concerned did not impose measures by reference to which the quality of the work to be done could be assessed. Such contracts, for example, frequently specify that work is to be carried out in accordance with a particular recognised standard, even if that standard is not legally binding. It can hardly be said that a clause of that type implies that one contracting party is taking control over how the other is to do their work. The manner in which the second party is to ensure compliance with the quality control terms of the contract is left up to themselves.

12.20 Taking a broad view of the relations between the HSE and the laboratories, it seems to me that both the relationship between those parties (which is clearly that of independent contractors) but also the level of control exercised by the  HSE is such that it cannot give rise to vicarious liability. I would, therefore, hold that the  HSE was not vicariously liable for any negligence established against the laboratories. However, that leaves the question of whether it can be said that the  HSE was primarily liable for any such negligence. I, therefore, turn to that question.

13. Primary Liability
13.1 There are a number of ways in which a party who has an established relationship with someone such as a customer, client or a patient, but who ultimately arranges for relevant work to be done by a third party, may become primarily liable in negligence if something goes wrong. Perhaps the most common such circumstance arises where it can be said that the party with the primary relationship with the customer knew or ought to have known that there was a real risk that the work which was passed on to a third party would not be carried out in an appropriate fashion. For example, a failure to contract with persons of proven ability in the area might well provide the basis for a claim in that regard. However, no such claim is advanced in the circumstances of this case.

13.2 However, there is a second, and it might be said potentially developing, area of primary liability which comes under the heading of a so-called “non-delegable duty”. Under this heading, a party who has the primary responsibility with the customer, client or patient may be held, in certain circumstances, to have accepted a duty to ensure that any relevant arrangements will be carried out in a non-negligent way and may be held to have done so in circumstances where that duty remains in place irrespective of whether the contracting party chooses to carry out its side of the arrangement itself or to arrange for a third party to do so.

13.3 It seems to me that three questions arise under this heading in the particular circumstances of this case. The first is as to the extent to which the concept of “non-delegable duty” arises in Irish law. The second is as to the parameters of the applicability of such a duty, should it be held to exist in principle. The third is as to whether it can be said that the arrangements of the HSE in respect of CervicalCheck can be said to come within the scope of any such principle so as, in turn, to lead to the  HSE being primarily liable for any negligence established in respect of laboratories whom it contracts to carry out work in the context of that scheme.

13.4 The principle which gives rise to the existence of the non-delegable duty has been accepted by the courts of the United Kingdom, most notably in the decision of the U.K. Supreme Court in Woodland v. Essex County Council, as referred to above. In that case, the duty of a local education authority towards pupils in its care was held to be non-delegable in circumstances where a pupil suffered serious injury in the course of a school swimming lesson conducted by swimming instructors who were not employed by the education authority and whose services were provided to the authority by an independent contractor. Whilst that decision represents the most comprehensive analysis of the doctrine of non-delegable duties provided by the U.K. Supreme Court to date, a number of U.K. authorities had previously indicated that, in certain circumstances, the duty of a party can extend beyond taking reasonable care in the performance of their tasks, to ensuring that reasonable care is taken by anyone to whom those tasks are delegated.

13.5 As indicated by Lord Sumption in his judgment in Woodland, the characterisation of non-delegable duties has its origins in the law of nuisance and in the rule in Rylands v. Fletcher (1868) LR 3 HL 330, where strict liability may be imposed irrespective of fault on the defendant’s part and where a defendant can be held responsible even when the acts complained of are committed by independent contractors. The category of non-delegable duties was subsequently extended to include situations involving a duty to take reasonable care, as in Hughes v. Percival (1883) 8 App Cas 443, where Lord Blackburn held in the House of Lords that the defendant had a duty to ensure that reasonable skill and care was used when carrying out work which involved a risk to the party wall which divided his house with that of the plaintiff’s. It was held that this duty could not be discharged by delegating the performance of the work to a third party and thus the defendant was found liable for the negligence of the builder whom he employed to do the work which had caused damaged to the plaintiff’s house.

13.6 Subsequent to this, the principle of the non-delegable duty was further developed in the case law with reference to the character of the relationship between the plaintiff and the defendant and consideration of whether the defendant has assumed responsibility for the exercise of due care by a third party to whom the defendant may delegate the performance of his or her functions. This analysis first arose in the employment context, where it was held that an employer had a personal duty to provide a safe system of work and that, where he or she has appointed an agent to perform this duty, the employer remains responsible for the agent’s negligent acts (see Wilsons & Clyde Coal Ltd. v. English [1938] A.C. 57). This principle was affirmed by the House of Lords in McDermid v. Nash Dredging and Reclamation Co Ltd. [1987] A.C. 906, where the defendant company, who had employed the plaintiff as a deckhand, was held to be liable for the negligence of an independent contractor, the captain of the ship on which the plaintiff worked, who had failed to operate a safe system of work.

13.7 In the “hospital cases” previously mentioned, a series of decisions of the Court of Appeal for England and Wales, it was suggested that a hospital holds a nondelegable duty to take reasonable care in the provision of care to its patients. In Gold v. Essex County Council, a local authority which operated a voluntary hospital was held liable for the negligence of a radiographer which it employed. While the majority of the Court of Appeal decided the case according to the principles of vicarious liability, in his minority judgment Lord Greene M.R. held that the hospital had assumed the obligation to treat the plaintiff patient, stating that this was the “natural and reasonable inference” to be drawn from the authority’s method of conducting their affairs and the nature of the radiographer’s engagement, and that the authority was therefore liable if the persons employed by them to perform the obligation on their behalf act without reasonable care. At pp. 301-302, Lord Greene M.R. held that:-

“… [T]he extent of the obligation which one person assumes towards another is to be inferred from the circumstances of the case. This is true whether the relationship be contractual (as in the case of a nursing home conducted for profit) or non-contractual (as in the case of a hospital which gives free treatment). In the former case there is, of course, a remedy in contract, in the latter the only remedy is in tort; but in each case the first task is to discover the extent of the obligation assumed by the person whom it is sought to make liable. Once this is discovered, it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whether a servant or agent, to discharge it on his behalf; and this is equally true whether or not the obligation involves the use of skill. It is also true that, if the obligation is undertaken by a corporation, or a body of trustees or governors, they cannot escape liability for its breach, any more than an individual can; and it is no answer to say that the obligation is one which on the face of it they could never perform themselves. Nor can it make any difference that the obligation is assumed gratuitously by a person, body or corporation which does not act for profit: Mersey Docks Trustees v Gibbs….”

13.8 In another case involving the negligent acts of employed medical staff, Cassidy v. Ministry of Health, again the majority of the Court of Appeal reached its decision on the application of principles of vicarious liability. As quoted above at para. 11.9, Denning L.J. in his minority judgment considered that the critical factor was not the hospital’s relationship with the doctor or surgeon, but its relationship with the patient, arising from its acceptance of the patient for treatment. This, he concluded, meant that the hospital authorities are liable for the negligence of a hospital worker in the course of the treatment of a patient, regardless of whether the worker is employed under a contract of service or a contract for services. Denning L.J. restated this analysis in his minority judgment in Roe v. Minister of Health [1954] 2 Q.B. 66, at p. 82. While the principle of a hospital’s non-delegable duty towards its patients was referred to with approval in an obiter comment of Lord Browne-Wilkinson in his X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633, at p. 740, the underlying principle identified by Lord Greene M.R. and Denning L.J. was first adopted by the U.K. Supreme Court in Woodland.

13.9 In Woodland, reflecting on the foregoing development of the law in this area, Lord Sumption considered that there are two broad categories of case in which a nondelegable duty has been held to arise. The first such category was described as a “large, varied and anomalous class of cases” in which a defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work. The second category of cases were held to involve circumstances where a protective relationship exists between the defendant and the plaintiff. Considering the latter category as that which was relevant to the facts of Woodland, Lord Sumption referred to three critical characteristics in identifying the existence of such a duty, at para. 7 of his judgment:-

“First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant’s. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own.”

13.10 In an effort to articulate the exceptional circumstances in which a nondelegable duty of care may arise, Lord Sumption clarified that the question cannot depend simply on the degree of risk involved in the relevant activity. As previously referred to, five “defining features” of a non-delegable duty were set out at para. 24 of his judgment, which require to be restated here in full:-

“(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.
(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.
(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.
(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.”
13.11 Lord Sumption held that the fact of the defendant’s control over the environment in which the injury was caused was not an essential element in this kind of case, and where a non-delegable duty arises, the defendant is liable despite the fact that he may have no control at all. In fact, the “essential element” of this type of case, he continued at para. 24 of his judgment, is “control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility”. Furthermore, it was held that a non-delegable duty of care should be imputed to those providing critical services only in circumstances where it would be fair, just and reasonable to do so.

13.12 On the abovementioned criteria, Lord Sumption held that the imposition of a non-delegable duty was not an unreasonable burden on the education authority. In particular, as noted by both Lord Sumption and Lady Hale in her concurring judgment, the outsourcing of the educational and supervisory functions of schools was a recent phenomenon and these were traditionally performed by staff, for whom the authority would have been vicariously liable. If, on analysis, the duty of the authority was not to perform the relevant function but only to arrange for its performance, then it would not be liable for the negligence of independent contractors (see Myton v. Woods (1980) 79 LGR 28). On the facts of the case, however, it was concluded that the alleged negligence occurred in the course of the educational functions which the school assumed an obligation to perform and had delegated to its contractors, and that if negligence and resultant injury were found, the educational authority is in breach of duty.

13.13 Lord Sumption’s judgment in Woodland has been subsequently considered by the U.K. Supreme Court in Armes v. Nottinghamshire County Council [2017] UKSC 60, [2018] 1 All E.R. 1, where it was held that the imposition of a non-delegable duty on a local authority to ensure that reasonable care was taken for the safety of children in care, while they were in the care and control of foster parents, was too broad and that the responsibility with which it would fix local authorities was too demanding. In light of policy considerations and the relevant statutory provisions, the Court concluded that the duty of the local authority was not to perform the function of the provision of daily care, in the course of which the plaintiff had been abused, but rather to arrange for, and then monitor, the performance of this function.

13.14 It does not appear that this Court has ever been asked to fully consider either the question of whether such a principle applies in Irish law and, if so, whether the criteria for determining that a non-delegable duty arises are the same as those identified in the United Kingdom case law.

13.15 While the United Kingdom case law sets out quite detailed criteria for assessing whether such a duty can be said to exist in particular circumstances, it does seem to me to be necessary to consider the appropriate approach to be adopted in determining whether the concept of a non-delegable duty should be extended to a category of case which has not yet been the subject of a specific ruling by the courts. In that context, it is appropriate to refer back to the overall analysis set out in the section of this judgment concerning vicarious liability which suggests that a court should be informed by any underlying principle, if there be one, but should also, to the extent that it is not possible to identify any underlying principle, adopt an incremental approach.

13.16 There are, it is clear, certain types of duty which are owed to a very wide number of persons under the long established neighbour principle. When we drive a car, we owe a duty of care to ensure that the car is safely driven and owe that duty to anyone who happens to be in the vicinity, be they the occupants of another vehicle, cyclists or pedestrians. It does not require any particular prior relationship to impose such a duty. The happenstance of an individual being a user of the same piece of roadway as the driver creates, in itself, a sufficient proximity for a duty of care to arise.

13.17 But there are other circumstances where some form of relationship is required between parties in order for a duty of care to arise in the first place. Professional persons owe a duty of care to their clients and patients precisely because they have undertaken the relationship concerned. That relationship, whether based on contract or otherwise, informs the parameters of the duty. In such circumstances, it is easy to see that there is a strong case for suggesting that someone who assumes that duty of care cannot absolve themselves from their obligations simply by arranging that a third party will carry out some of the activity which that duty requires to be accomplished. On that basis, it does seem to me that it is appropriate to recognise that a relationship may give rise to some form of non-delegable duty. To hold otherwise would be to say that a party who enters into a relationship giving rise to a duty of care could escape from that duty simply by inviting someone who was not an employee, or over whom they did not exercise a sufficient degree of control, to carry out some of the duty concerned.

13.18 As noted by Lord Sumption, the courts of the U.K. have identified a number of types of situation where a non-delegable duty of care may exist. It is not necessary for the purposes of this judgment whether all such categories have a counterpart in Irish law. For present purposes, it is sufficient to note that, for the reasons analysed in the preceding paragraphs of this judgment, it is appropriate to consider that there is potentially at least one underlying principle behind the concept of the non-delegable duty, being that such a duty derives from a particular relationship between the parties. However, the identification of that underlying principle is not particularly helpful in defining the parameters of the type of relationship which will be held to give rise to a non-delegable duty. In that context, it seems to me that the incremental approach by analogy provides the best assistance to the Court in attempting to map out the parameters of the circumstances which give rise to such a duty.

13.19 It must be recalled that one of the matters identified by both Lord Sumption and Lady Hale in their respective judgments in Woodland as being relevant in assessing the extent of any such duty was the fact that certain functions had traditionally been performed by staff of the schools in question where the outsourcing of the functions in question was a relatively recent phenomenon. That analysis may assist in pointing to the appropriate direction of any incremental approach.

13.20 In the particular context of this case, it may also be appropriate to have regard to the fact that there have, since the adoption of widespread publicly funded health measures, been significant developments in the way in which the delivery of medical care is structured. It is, of course, necessary to acknowledge that there continue to be significant differences between the way in which health services are provided in Ireland in comparison with equivalent systems in the United Kingdom. Even where patients have medical services provided to them free of charge, those services are often provided in Ireland to a much greater extent by the private sector under arrangements with the HSE. But notwithstanding those differences, it remains the case that a significant development in the provision of medical services since the Second World War has been a move from the historical position where most of those services were provided under some form of contract between the patient and the medical service provider (whether that be a hospital, a consultant or a doctor) to one where many such services are now provided under various publicly funded schemes. In the past, a patient who contracted for medical services would almost certainly have been entitled to rely on a term (whether express or implied) of their contract to the effect that the services in question would be provided in a non-negligent fashion. In present conditions, many such services are simply provided under publicly funded schemes without any contractual relationship.

13.21 Just as there was, in Woodland, a basis for considering that the outsourcing certain education supervisory functions which would traditionally have been carried out by staff might not absolve the institution from retaining a duty of care in respect of the manner in which those functions were carried out, there is a basis for suggesting that, by analogy, the mere fact that certain services are no longer provided by contract should not necessarily absolve a provider from the kind of obligations which would likely have arisen under contract in the first place. Such an approach would meet the “evolution by analogy” approach.

13.22 In that context, it seems to me to be important to note that there is no reason in principle why the HSE might not have chosen to have its own laboratory in which screening could take place. To the ordinary woman who availed of CervicalCheck, the question of the precise ownership of the laboratory which would do the screening would not, in my view, have appeared material. Rather, that woman would have assumed that she was engaging in a  HSE promoted programme which was under the control of the  HSE, and whatever needed to be done might be done by the  HSE itself or might be done by some other body of the choosing of the  HSE. In the past, a body providing a service such as CervicalCheck, but within the private sector, would almost certainly have entered into a contract with any woman availing of that service which would have made, either by express or by implied term, the service provider liable for any negligence. That would be likely to be so even if the service provider decided that it would sub-contract some of the work to others. It would have been unlikely that a relevant contract would have been such that the obligations of the service provider would have been confined to identifying an appropriate person to carry out part of the task. It is far from the type of case where a general practitioner may refer a patient either to a medical facility or an individual consultant precisely because that general practitioner takes the view that a greater or different level of expertise in a particular area is required to meet the needs of the patient concerned. In such circumstances, a patient would not take it that the general practitioner was assuming responsibility for the consultant or the hospital. A general practitioner might, of course, be liable for referring a patient to a consultant who that doctor knew or ought to have known did not have the expertise to deal with the matter. But that would give rise to a different type of liability.

13.23 It does not seem to me that it is appropriate to characterise the role of the HSE as being simply one of facilitating a relationship between patients participating in CervicalCheck and laboratories. Rather, it is appropriate to characterise the  HSE as the party who has undertaken responsibility for the scheme, irrespective of whether actual screening, or indeed other elements of the scheme, were to be performed by others.

13.24 On that basis, it seems to me that the HSE were, prima facie, primarily liable. It is also necessary to consider whether there is anything in the circumstances of the case which would lead to the view that the  HSE had divested itself of responsibility for an element of the programme, being that element which involved the assessment of slides by screeners. It seems to me that it was considerations of this type that led to the conclusion of the U.K. Supreme Court in Armes that the relevant local authority in the United Kingdom was not responsible for the actions of foster parents with whom they had placed children, subject only to there being a possibility of liability if there was negligence in the way in which the foster parents were selected or monitored. Even in an era where all relationships were governed by contract, it would have been most unlikely that an agency which held itself out as facilitating the placement of children in foster care would have been taken to have entered into a contract to ensure that, in all circumstances, the foster parents would not engage in any inappropriate activity. However, the underlying placement service would have carried with it at least an implied contractual obligation to ensure that the persons with whom a relevant child was to be placed had been assessed for suitability and, most likely, would be subject of monitoring. It would be to push the parameters of incremental change or evolution by analogy much too far to suggest that non-delegable duties could arise in cases where it was clear that the obligation being undertaken was simply one of identifying appropriate third parties to carry out a relevant function.

13.25 Some of those involved with CervicalCheck may have been aware that slides were sent to laboratories, whether in Ireland or in the United States, which were independent of the HSE. Some may not. But knowledge does not seem to me to be the essential ingredient. Rather, the question is as to whether the arrangement viewed as a whole could be taken as one where the  HSE was simply procuring that screening would be carried out by others, so that the  HSE was divesting itself of responsibility for that aspect of the programme by entering into contracts with third parties. In my view, there is no basis for sustaining such a suggestion.

13.26 In those circumstances, it seems to me that the HSE is primarily liable for any negligence which might be found against the laboratories. I propose that the Court should reach such a conclusion on a somewhat narrower basis than that adopted by the trial judge because, for the reasons already referred to, I would not hold the  HSE to be vicariously liable for the acts of those laboratories. However, I would hold that the  HSE, in the manner in which it adopted and promoted CervicalCheck, acted in a way which would lead an informed and reasonable person to assume that the  HSE was undertaking responsibility for ensuring that the programme would be conducted in a non-negligent way and, further, I would hold that there was nothing in the circumstances of the operation of the programme which would lead a reasonable person to conclude that the  HSE had absolved itself of any obligations in respect of the screening part of the programme.

14. Damages
14.1 As noted earlier, the only defendant who appealed on the question of damages was Medlab. I have already set out the various headings under which the trial judge awarded damages against all of the defendants, including Medlab. As also already noted, with the exception of a sum of €10,000 awarded against the HSE in respect of a failure to inform the  Morrisseys, and in particular Ms.  Morrissey, about certain audit results, all of the damages were awarded against each of the defendants.

14.2 Many of the headings of damages were not contested by Medlab. The appeal, therefore, relates only to two items of damages awarded. In simple terms, it is first argued that the award of general damages, which as will have been seen were measured by the trial judge at €500,000, was said to have exceeded the established maximum award permissible in respect of such damages, which was said to be €450,000. Further, it is submitted that the sum awarded was not proportionate when assessed against the level of damages commonly awarded in other cases.

14.3 Second, it was said that the trial judge was in error in concluding that he could, in these proceedings, award damages to Mr. Morrissey in respect of the costs which would be incurred in attempting to replace the non-financial contribution which Ms.  Morrissey, had she a normal life expectancy, would have been expected to make towards the family. In that context, it is important to emphasise that the case made was not concerned with the manner in which the trial judge proceeded to calculate the sums found to be due under that heading, but rather whether there was a legal basis for awarding damages under that heading at all. In the same context, it is also important to note that the trial judge did indicate that if there was no legal basis for awarding damages to Mr.  Morrissey under that heading, he would instead have awarded the same sum under the so-called “lost years” doctrine when calculating the damages due to Ms.  Morrissey.

14.4 While arguing that the trial judge was correct to adopt the approach which he did, it is hardly surprisingly that counsel for the Morrisseys also suggested that, as a fall-back position, the trial judge was also correct to indicate that the same amount of damages could have been awarded under the “lost years” doctrine. It follows that the real question for this Court is as to whether, as a matter of law, damages of that type are available, either as damages recoverable by a person in the position of Mr.  Morrissey or under the “lost years” doctrine.

14.5 However, it is appropriate to turn first to the award of general damages.

14.6 The starting point has to be to set out a very brief account of the history of the adoption by this Court of a limit on the amount of damages which can be awarded for pain and suffering. However, before so doing, it is of some importance to be clear as to the terminology used. On one view, it is said that whatever the limit may be, it can properly be described as a “cap” on general damages so that it would, on that basis, operate as an artificial limitation reducing the damages which might otherwise properly be awarded to fully compensate an injured party. An alternative view is that the limit, which might in this context not be properly described as a “cap” at all, amounts to the current view of the appellate courts as to the damages which should be awarded in cases of the most serious injuries. On that view, it might be said that all other damages, ranging from the very minor to those which are relatively serious but not of the most serious category, would require to be broadly proportionate to the damages awarded in the most serious cases, having regard to the level of injury suffered. It will be necessary to return to this question when the brief history of the case law in this area has been reviewed.

14.7 A limit, or “cap”, on the amount of general damages which can be awarded for pain and suffering was first introduced by this Court in Sinnott v. Quinnsworth [1984] I.L.R.M. 523. In that case, O’Higgins C.J. described general damages as those which are intended to represent fair and reasonable monetary compensation for the suffering and inconvenience with which a plaintiff is afflicted by reason of their injuries and he referred with approval to the following dicta of Griffin J. in Reddy v. Bates [1983] I.R. 141 at p. 148, in relation to the calculation of such damages:-

“The fact that a plaintiff has been awarded what is considered to be sufficient damages to cover all her prospective losses, to provide for all her bodily needs, and to enable her to live in comparative comfort (having due regard to her disabilities), should be reflected in the amount of general damages to be awarded…

In a case such as this, where damages are to be assessed under several headings, when the jury has added the various sums awarded and arrived at a total for damages, they should then consider this total sum (as should this Court on any appeal) for the purpose of ascertaining whether the total sum awarded is, in the circumstances of the case, fair compensation for the plaintiff for the injuries suffered, or whether it is out of all proportion to such circumstances. In my view, the income which that capital sum would generate with reasonably careful and prudent investment is a factor which the jury (and this Court on appeal) should take into consideration in arriving at a conclusion in this behalf.”

14.8 In outlining the rationale for imposing a cap on such damages, O’Higgins C.J. described circumstances in which a sum awarded might be so high as to be construed as a punishment imposed on the defendant for the infliction of the injury rather than a reasonable attempt to compensate the injured and might, thus, impact on the operation of public policy. He then continued on to identify the factors which a court may refer to in its assessment of the level at which such a limit should be appropriately set:-

“In my view a limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which obtain in our society. In a case such as this, regard must be had to the fact that every single penny of monetary loss or expense which the Plaintiff has been put to in the past or will be put to in the future has been provided for and will be paid to him in capital sums calculated on an actuarial basis. These sums will cover all his loss of earnings, past and future, all hospital and other expenses in relation to the past and the future and the cost of the special care which his dependence requires, and will require, for the rest of his life. What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation. In assessing such a sum the objective must be to determine a figure which is fair and reasonable. To this end, it seems to me, that some regard should be had to the ordinary living standards in the country, to the general level of incomes, and to the things upon which the Plaintiff might reasonably be expected to spend money.”

14.9 In that case, general damages were assessed by the jury at first instance at £800,000, a sum which was described by O’Higgins C.J. as bearing “no relation to ordinary living standards in the country”. By reference to “contemporary standards and money values”, a limit on the award of general damages was set at £150,000, and the sum awarded was substituted accordingly.

14.10 In light of the prevailing economic circumstances, this limit was subsequently revised upwards, to £250,000, by Morris J. in the High Court in Kealy v. Minister for Health [1999] 2 I.R. 456. The limit was also subject to analysis by O’Sullivan J. in the High Court in McEneaney v. Monaghan County Council [2001] IEHC 114, where, having regard to the expert evidence tendered as to inflation and living standards, it was considered that the contemporaneous equivalent figure to the “cap” on general damages imposed in Sinnott was approximately £300,000. In M.N. v. S.M. (Damages) [2005] IESC 17, [2005] 4 I.R. 461, Denham J. held that she was satisfied that, at that time, the equivalent figure to the £150,000 limit imposed in Sinnott was in excess of €300,000.

14.11 A detailed review of the limit on general damages was undertaken in Yun v. Motor Insurers Bureau of Ireland & anor [2009] IEHC 318, in which case Quirke J. considered expert evidence regarding the change in economic conditions in Ireland between 1984 (when the “cap” in Sinnott was imposed) and 2009, together with the future social and economic outlook as of that time. Assessing the appropriate limit on the basis of the significant increases in earning levels and the improvements in living standards which took place in Ireland between 1984 and 2008, and allowing for inflation, Quirke J. found that the equivalent value of the 1984 “cap” in 2008 was €500,000. This figure was then subjected to a downward adjustment to reflect the reduction in wealth and living standards which had commenced in or around 2008, when Ireland had entered into a period of economic recession and which reduction was expected, on the basis of the evidence put before the High Court, to continue for a further period in excess of five years. Accordingly, Quirke J. reduced the value of the limit on the award of general damages to €450,000, a figure which was referred to with approval by this Court in Kearney v. McQuillan & North Eastern Health Board (No 2) [2012] IESC 43 and more recently by the Court of Appeal in Nolan v. Wirenski [2016] IECA 56, [2016] 1 I.R. 461.

14.12 This “cap” has been the subject of some recent discussion in the High Court (see, for instance, Mullen v. Minister for Expenditure and Reform [2016] IEHC 295, Woods v. Tyrell [2016] IEHC 355, [2016] 1 I.R. 349 and B.D. v The Minister for Health and Children [2019] IEHC 173), in light of what have been said to be considerable changes in the prevailing economic circumstances of the country in recent times.

14.13 In the same context, it is also important to note that a judge-led initiative suggested that a more equitable way of dealing with future care would be to provide for periodic payments rather than a lump sum, which can, of course, give rise to a windfall gain or to monies running out, depending on whether life expectancy has been accurately assessed and whether the investment climate changes.

14.14 Regrettably it would appear that, for the reasons set out by Murphy J. in the High Court in Hegarty & anor v. Health Service Executive [2019] IEHC 788, despite the fact that it took a considerable period of time for the recommendations of the Working Group on Medical Negligence and Periodic Payments to be enacted into legislation, there are real reasons to fear that the periodic payment regime will not work in practice.

14.15 Those points are of some relevance to the question which this Court has to consider, for it must be accepted that any person who establishes a claim in negligence for serious injuries will be fully compensated for any financial loss which they suffer or any financial costs which they incur so that the award of general damages is designed to deal only with pain and suffering.

14.16 However, while there might at least be something approaching a broad consensus among the public generally as to the relative seriousness or otherwise of certain injuries, the precise translation of any particular set of injuries into a sum of compensation is necessarily somewhat subjective.

14.17 It is also potentially helpful to look at the position in other jurisdictions. In so doing, I am mindful of the fact that it would require more detailed analysis of the precise circumstances in which additional damages for financial loss or cost of case might be awarded in such jurisdictions to enable a true comparison to be made. However, and with that important caveat, it is of some relevance to note the highest level of damages provided for in the guidelines maintained in certain other jurisdictions.

14.18 In the Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland (5th Ed.), which were published in 2019 as a resource for courts and practitioners in the assessment of damages in personal injury cases, the highest level of damages specifically provided for is in respect of injuries resulting in quadriplegia, which attract awards between £475,000 and £700,000. In the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (14th Ed.), published in 2017, which are for the benefit of the judiciary in England and Wales, the highest awards of damages recommended are also in respect of injuries resulting in quadriplegia, which will generally attract an award of between £284,610 to £354,260.

14.19 While it does not appear that there are formal judicial guidelines on damages for injury in Germany, I am aware that awards in respect of severe cerebral palsy have been made in and around the sum of €700,000. It should, however, be noted that in the German system, the award may be adjusted to reflect the degree of culpability found against the defendant.

14.20 Allowing for the caveat mentioned earlier concerning comparability, it certainly does not seem that a limit, whether it be €450,000 or €500,000, in this jurisdiction is out of line with the highest level of damages awarded in other comparable systems. Indeed, there may be a basis for suggesting that, in relation to very serious injuries, damages in Ireland are arguably lower than those awarded in at least some comparable jurisdictions. However, given that no suggestion was made on this appeal to the effect that the award of €500,000 for general damages was too low, it is unnecessary to address those questions or to consider any issues of comparability which might arise. It is sufficient to record that either of the limits being contended for in this jurisdiction is well within, if not below, international norms.

14.21 The first issue which arises for this Court is, therefore, as to whether it can, as Medlab argues, be said that the limit was €450,000 and that the trial judge was in error in awarding €500,000.

14.22 First, it must be said that the limit of €450,000 derives from the judgment of Quirke J. in Yun, as referred to above. However, it is also clear that the limit is not fixed forever but rather can be reviewed from time to time by reference to prevailing conditions. It is also clear that the limit of €450,000 was fixed at what was, on any view, a time of particular economic depression in this country and was expressly reduced by Quirke J. on that basis from what he would otherwise have regarded as an appropriate limit of €500,000.

14.23 Medlab accepted that it is possible for the limit to be adjusted in the light of prevailing circumstances but argued that, in order that a court might do so, there should be evidence of a change in prevailing circumstances so as to allow for a proper assessment to be made.

14.24 It is in that context that it seems to me to be important to note the difference between the proper approach to financial damages which are capable of reasonably precise assessment, on the one hand, and general damages for pain and suffering, on the other. The course of action adopted in Russell (A Minor) v Health Service Executive [2015] IECA 236, [2016] 3 I.R. 427 did involve detailed economic and other evidence which enabled that court to conclude that it was appropriate to calculate future pecuniary loss on the basis of an assumption that the real rate of return on monies invested would be 1.5% (with an exception in respect of the calculation of the cost of future care, where the real rate of return was set at 1% to account for future wage inflation). But such an exercise was required precisely because such damages are capable of at least being approached on the basis of a calculation. As already noted, there is a significant subjective element to the calibration of compensation for pure pain and suffering. In those circumstances, it does not seem to me that a detailed evidence based approach to a change in circumstances is necessary or required when identifying the limit on general damages for pain and suffering. Rather, a court is entitled to take a broad approach based on its own experience, just as some of the courts which have set and varied the limit have done to date. In so saying, I do note the approach of O’Sullivan J. in McEneaney and of Quirke J. in Yun was somewhat different. In those circumstances, and having regard to the economic circumstances which prevailed at the time the limit of €450,000 was fixed, it does not seem to me to be unreasonable to place the current limit at €500,000.

14.25 I would also suggest that it is important that there be consistency in this area. In those circumstances, it does not seem to me that a first instance judge should alter the limit, even where that judge feels that circumstances have changed sufficiently to justify a departure from a previous limit set by appellate courts. Rather, as applies in a situation where a first instance judge is bound by precedent set by a higher court, it should be open to a first instance judge, while awarding damages at the limit previously fixed, to set out a reasoned basis for suggesting that a higher limit might be appropriate in the prevailing circumstances and, thus, to leave it up to an appellate court, most likely the Court of Appeal, to consider whether such an increased limit is appropriate. It is, of course, open to a party who wishes to seek to persuade the courts that a different limit should be applied, to lead whatever evidence they might consider appropriate to that end. It would then be open to a trial judge, in giving reasons for suggesting a change in the limit, to set out whatever evidence was considered persuasive. Such an approach would pay appropriate respect to the experience of trial judges but also ensure consistency by ensuring that any changes are made in only one place, i.e. the Court of Appeal.

14.26 It is then necessary to turn to the second aspect of Medlab’s appeal against general damages. Under that heading, Medlab argues that, whatever may have been the appropriate limit, the damages in Ms. Morrissey’s case ought not have been set at that limit. In that context, it was submitted on behalf of Medlab that the award of general damages made by the trial judge was disproportionate, on the basis that Ms.  Morrissey’s injuries do not reach the end of the spectrum of personal injuries occupied by injuries such as a catastrophic brain injury occurring at birth.

14.27 It is, of course, the case that it may seem somewhat invidious to attempt to compare one type of very serious consequence with another. Some persons who suffer catastrophic injury due to negligence are likely to lead a long life suffering from very serious disability indeed, in circumstances where there are limits to the extent to which those disabilities can be ameliorated by the provision of supports which in turn can be financed by an award of damages. In some such cases, the person concerned may have full cognitive ability and may be all too well aware of their unfortunate circumstances. Others may suffer similar disability but with less realisation. Still others, such as Ms. Morrissey, will, tragically, not have a full or close to full life expectancy during which they will suffer from the consequences of negligence, but on the other hand will have the additional pain of knowing about the life which they will miss and the consequences for their loved ones. In my view, there are different ways in which it is possible properly to characterise injuries suffered as a result of negligent action as being at or near the top of the compensation range so far as pain and suffering are concerned. I have no doubt that this is one such case.

14.28 I should say that I have come to that view while considering that the proper approach to the limit for damages for pain and suffering is the one which sees that limit as the appropriate sum to award for the most serious damages. This is therefore the sum by reference to which all less serious damages should be determined on a proportionate basis, having regard to a comparison between the injuries suffered and those which do, in fact, properly qualify for the maximum amount. The point which I have sought to make, however, is that the type of injuries which do properly qualify for the maximum amount may nonetheless come into different categories. While it is not possible to conduct a precise mathematical exercise in deciding whether particular injuries are, for example, half as serious as others, nonetheless it seems to me that respect for the proper calibration of damages for pain and suffering requires that there be an appropriate proportionality between what might be considered to be a generally regarded view of the relative seriousness of the injuries concerned and the amount of any award. But those very same considerations also recognise that it may be possible to regard injuries of very different types as being broadly comparable. That consideration applies equally to injuries of the most serious type and, thus, it is appropriate to consider the injuries suffered by Ms. Morrissey to be of that most serious type, even though they differ in character from other types of injuries which can also properly be characterised as being of the most serious type.

14.29 Given that I have, for the reasons already set out, come to the conclusion that the limit on general damages for pain and suffering as currently considered should be fixed at €500,000, it seems to me that such a sum amounts to an appropriate means of compensating Ms. Morrissey under that heading and I would not, therefore, interfere with the trial judge’s award in that regard.

14.30 It is, therefore, necessary to turn to the second element of the appeal against damages which relates to the financial cost to Mr. Morrissey of providing for those “services” which Ms.  Morrissey would, of course, willingly and happily have provided for her family had her life not been so tragically cut short.

15. Damages to Compensate for Loss of Free Services
15.1 While it may be somewhat difficult to describe the issues which arise under this heading in a way which does not appear disregarding of the real human issues which lie behind this question, nonetheless there is an important question of law which needs to be resolved. It will be necessary to turn shortly to the case law from which the existing legal position may be gleaned and from which any possible evolution of that position may find its staring point.

15.2 The essential difficulty stems from the long standing case law which suggests that a third party cannot sue in damages for loss arising out of a death caused by the wrongdoing of a defendant. There have been some exceptions identified and there have been alterations in the law brought about by the legislature. However, on Medlab’s case, the fundamental position remains as indicated in that historic case law, subject only to those exceptions which have been recognised or where legislative change has been brought about.

15.3 The heading of claim with which we are concerned refers to damages to which the trial judge considered Mr. Morrissey was entitled, so as to compensate him for the cost of having to provide services for himself and his family which would, in the ordinary course, have been likely to have been supplied by Ms.  Morrissey had she a normal life expectancy. The  Morrisseys suggest that such a claim can come either within the existing case law or, potentially, a reasonable evolution of that jurisprudence. It is said that the anomalies which would arise from a finding that Mr.  Morrissey was not entitled to such damages would justify, if it was required, such an evolution.

15.4 It follows that it is necessary to look at the case law and certain relevant legislation in a little detail. The historic position in tort was that no damages could be recovered for financial loss arising out of a death. In Law of Torts (4th edn.), McMahon & Binchy explain that the principle that death ended all actions in personal torts, action personalis moritur cum persona , arose from a feature of early English law, the felony merger doctrine, and meant that at common law the deceased person’s estate had no right to sue in respect of his or her death. Further, the common law did not recognise the death of a person as giving a claim for damages. In a case which underpins much of the evolution of the law in this area, Baker v. Bolton (1808) 1 Camp 493, it was established that the dependants of a deceased person had no right to sue in respect of his or her death. There, the plaintiff, following an accident in which his wife was fatally injured, sought damages for the loss of her society and of her assistance in conducting his business. Lord Ellenborough held that the plaintiff was entitled to damages for the loss of his wife’s society and for the distress which he had suffered only from the time of the accident until the time of her death a month later, and stated the following:-

“In a civil Court, the death of a human being could not be complained of as an injury, and in this case the damages, as to the plaintiff’s wife, must stop with the period of her existence.”

15.5 The rule in Baker v. Bolton was subsequently accepted in other common law jurisdictions (see, for instance, the decisions of the Supreme Court of Canada in Monaghan v. Horn (1884) 7 Can S.C.R. 409 and of the Supreme Court of the United States in Insurance Co. v. Brame (1878) 95 U.S. 754) and has also been previously referred to with apparent acceptance by this Court in Byrne v. Houlihan [1966] I.R. 274.

15.6 Exceptions to the historical position in tort law regarding recovery for financial loss arising out of a death have been fashioned both by courts and legislatures. In Rose v. Ford [1937] A.C. 826, the House of Lords held that the plaintiff had a claim of damages for loss of expectation of life as a result of the wrongful act of the defendant. The “lost years” doctrine has been subsequently adopted by the courts in order to allow those plaintiffs who have a decreased life expectancy as a result of the negligent acts of the defendant to recover for their lost years in a personal injury action brought before their death. In Doherty v. Bowaters Irish Wallboard Mills Ltd [1968] I.R. 277, it was Walsh J.’s view that the sum to be considered in this regard was the plaintiff’s loss of earnings during the period by which his or her life expectancy has been reduced, less the living costs which would have been incurred during these years. The “lost years” doctrine has also been accepted in the United Kingdom, in the decision of the House of Lords in Pickett v. British Rail Engineering Limited [1980] A.C. 136, which appears to have similarly confined the monies to be recovered under this heading to the plaintiff’s loss of earnings during his or her “lost years”.

15.7 Further, the rule in Baker v. Bolton presented the obvious anomaly that a defendant could be found liable for negligence causing injury to a potential plaintiff, but that recovery was not allowed where the defendant’s negligent acts caused the wrongful death of the same. Legislation was introduced in order to mitigate the harsh effects of this rule on the spouse and dependants of the deceased, who were until that point deprived of any cause of action for damages in respect of the individual’s death. The Fatal Accidents Act 1846, commonly known as Lord Campbell’s Act, was introduced to provide a statutory right to a cause of action to the dependants of the deceased in respect of their dependency (see the Fatal Accidents Act 1976 for these provisions as currently set out in English law) and such provisions were reflected in statutes introduced across a number of common law jurisdictions. In Ireland, the law on this matter has been consolidated in Part IV of the Civil Liability Act 1961. Section 48(1) of that Act is particularly relevant for the purposes of these proceedings and states as follows:-

“48.—(1) Where the death of a person is caused by the wrongful act of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.”

15.8 In a decision of the Queen’s Bench Division of the High Court of England and Wales, Thompson v. Arnold [2007] EWHC 1875 (QB), Langstaff J. helpfully sets out the differences between a personal injuries claim taken by an individual who has suffered a shortened life expectancy as a result of negligence and a claim under the Fatal Accidents Act 1976 taken by the dependants of the deceased, at paras. 20-21:-

“[20] First, a claim for the life time damages of a claimant whose death is impending will, if made on a lump sum basis – the only basis available for claims at the time which this case concerns, which was before the introduction of periodical payment orders – be a claim for the loss of earnings up to the date of anticipated death, and thereafter may include a claim for the ‘lost years’. Second, the claim can contain no element of care for any child, or husband, of the claimant after death, though the costs incurred in doing that which the claimant would have done to care for family members up until her death may be included. Third, an award for pain, suffering and loss of amenity may be made, but no claim for bereavement damages is payable to members of the family. Fourth, the claim is made by the claimant herself. Accordingly, any damages are paid to the claimant. If she dies any sum unspent out of the money she received will therefore be dealt with as part of her estate, and in accordance with her will if she has made one, subject only to any claims under the Inheritance (Family Provision) legislation.

[21] By contrast, a claim under the Fatal Accidents Act is one for dependency, which may be conveniently divided into two parts – dependency upon earnings (‘earnings dependency’) and dependency upon those services provided by the deceased to which a money value can be attributed (‘services dependency’) such as care of a spouse and children, insofar as either would have been provided for the benefit of the dependants, during the duration of their dependency. There is no lump sum claim, for pain, suffering and loss of amenity of the deceased – but instead the dependants may make a claim for bereavement which attracts a lump sum award, in a standard figure prescribed by legislation. Finally, a dependency claim is not one made by the claimant, but by her dependants and is therefore for their direct benefit, and not subject to the laws of intestacy, or to any will which she may have made.”

15.9 The creation of a remedy for the dependants of the deceased by statute has in turn influenced the approach of courts in a number of common law jurisdictions towards the underlying rule in Baker v. Bolton. In Admiralty Commissioners v. S.S. Amerika [1917] A.C. 38, the House of Lords refused an invitation to disturb the rule. Lord Sumner considered that the provisions of Lord Campbell’s Act, which remedied the disadvantageous position of widows and children, should be read as effectively providing statutory recognition to the rule at common law and held at p. 52 that the legislation “provided a new cause of action and did not merely regulate or enlarge an old one”.

15.10 Similarly, in Barclay v. Penberthy and Ors [2012] HCA 40, the High Court of Australia declined to interfere with the rule in Baker v. Bolton at common law, where the plaintiff firm had sought to make a claim for damages for the wrongful deaths of two employees, in circumstances where such a remedy was not provided for by legislation. In doing so, the High Court surveyed the legislative provisions of all Australian jurisdictions regarding a cause of action on behalf of dependants, with the majority judgment of the Court holding that “the pattern of Australian legislation is a pointer towards the continued existence of the rule in Baker v. Bolton as a matter of common law” (para. 26) and that any further contraction in the scope of the rule is a matter for Australian legislatures.

15.11 As mentioned, in the United States, the rule in Baker v. Bolton was also accepted into case law and, in a similar manner to that described above, U.S. state legislatures subsequently intervened to provide a statutory remedy for the dependants of the deceased to maintain a cause of action. Deviation from the rule in Baker v. Bolton was considered permissible by the U.S. Supreme Court in circumstances where no legislative remedy had been already provided to mitigate the effects of the rule. In Moragne v. States Marine Lines (1970) 98 U.S. 375, the U.S. Supreme Court overruled The Harrisburg (1886) 119 U.S. 199, precedent founded on the rule in Baker v. Bolton, to the effect that maritime law did not afford a cause of action for wrongful death, and held that the petitioner could maintain an action at maritime law for the wrongful death of her husband caused by a violation of maritime duties. This was in circumstances where a remedy for wrongful death in territorial waters did not otherwise exist in federal maritime statute. Having reviewed the other remedies provided at federal maritime law for dependants of maritime death victims in other circumstances, the Court concluded that the lacuna at issue was not reflective of a legislative intent to preclude the availability of a remedy for situations not covered under the legislation and to remedy the anomalies which such a lacuna caused, the Court created a uniform federal cause of action for maritime death.

15.12 The effects of the creation of a “true wrongful-death remedy” in Moragne were recognised in the later decision of the U.S. Supreme Court, Sea-Land Services, Inc. v. Gaudet (1974) 414 U.S. 573, where the Court allowed the bringing of a maritime wrongful-death action by the spouse of a deceased longshoreman who had previously recovered damages in his lifetime for his personal injuries. In that case, Brennan J. held on behalf of the majority of the Court that in Moragne a true wrongful death remedy had been created, which is founded on the death itself and is independent of any action the deceased may have taken in respect of his own cause of action. The dependant’s claim was held to involve a different cause of action to that of the deceased and thus was not precluded by the principle of res judicata. While so called “wrongful death statutes” provide that a dependant’s claim is barred if the deceased has recovered for their injuries during their lifetime, the judge-made wrongful death remedy at maritime law was held to operate with no such limitations and it was said that any potential for double liability could be eliminated by the application of principles of collateral estoppel.

15.13 The question which the U.S. Supreme Court faced in Sea-Land Services Inc v. Gaudet raises a final issue in relation to this aspect of proceedings, which is as to whether, under Part IV of the Civil Liability Act 1961, as amended, a claim could be brought subsequent to the death of the injured party by his or her dependants, where a claim has already been brought during the lifetime of the injured party. The position under U.K. law appears to be that if a deceased person brings an action for damages during his or her lifetime, and either proceeds to judgment or receives a settlement, a further claim cannot be brought after his or her death under the Fatal Accidents Act 1976, on the basis that the recovery by a dependant is conditioned in statute on the existence of an actionable cause in the deceased at the time of his or her death (see Read v. Great Eastern Railway Company (1868) L.R. 3 Q.B. 555 and Nunan v. Southern Railway Company (1924) 1 K.B. 223). This was also the assumption on which the House of Lords proceeded in Pickett, although the issue itself did not arise for determination in those proceedings. It is noteworthy that in that case it was stated by Lord Wilberforce that this assumption, if correct, “provides a basis, in logic and justice, for allowing the victim to recover for earnings lost during his lost years”.

15.14 In this jurisdiction, the issue has been subject to limited consideration. In Mahon v. Burke [1991] 2 I.R. 495, the deceased had brought an action for negligence against the defendant but settled this action before his death. The plaintiff, his widow, then brought proceedings under s. 48 of the 1961 Act, in which she claimed damages for funeral expenses, mental distress, and loss of consortium and for loss to the dependants of the deceased arising from his death. The High Court (Lavan J.), on an appeal from the Circuit Court, refused to award damages in respect of the fatal injuries claim, holding that the underlying action of the deceased had already been extinguished when the principal action had been settled by the deceased during his lifetime and therefore there was no longer a cause of action vested in the deceased at before his death.

15.15 In a more recent decision of the Court of Appeal, Hewitt v. Health Service Executive [2016] IECA 194, [2016] 2 I.R. 649, the plaintiff sought to bring a claim under s. 48(1) of the Civil Liability Act in respect of the death of his wife. The respondent sought to have the claim dismissed as statute-barred, as the statutory limitation period within which the deceased could have commenced proceedings had expired prior to her death and, it was said, the cause of action vested in the deceased had been extinguished by the time of her passing. Hogan J. held that, while the cause of action under s. 48 is a separate cause of action from that which might have been maintained by the deceased, the statutory claim of dependants is interdependent with the original action which the deceased might have brought during his or her lifetime. Having examined the statutory construction of s. 48(1), as set out above, he found in favour of the respondents, stating the following at paras. 19 and 20:-

“19. In my view, however, it is the following words in s. 48(1) (“… such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof…”) which are critical and this is where I respectfully part company from the reasoning and conclusions of [the trial judge]. In other words, I take the view that s. 48(1) goes further than simply requiring that the action was in respect of a justiciable controversy measurable in damages which the deceased was capable of commencing during her lifetime: it also requires proof that the deceased would have succeeded in the action but for the death.

20. Accordingly, while s. 48 is certainly a separate cause of action, the Oireachtas has clearly linked recovery to the entitlement of the deceased – but for her death – to have sued in her own right. This is underscored by the use in the sub-section of a past conditional tense (“… such as would have entitled…” ) and the consequential requirements that the decision would have been entitled to maintain the action and recover damages in respect thereof.”

15.16 There is no doubt that there are complexities, both at the level of principle and as a matter of practice, in attempting to produce an internally logical and coherent regime to compensate those who may have suffered financial loss as a result of a death or reduced life expectancy occurring in actionable circumstances. This will be so in circumstances where an action is brought after the death in question by third parties who claim that they have suffered financial loss or where, as here, it is unfortunately the case that a person will suffer from a significantly decreased life expectancy with financial consequences both for themselves and for those close to them.

15.17 As noted earlier, the historic position was that no damages could be recovered for financial loss arising out of a death. As has been pointed out in judgments from many jurisdictions (some of which are cited earlier), whatever may be the merits or demerits of that historic case law, the problem with which we are now faced is not only that the case law in question has represented the established position in most common law jurisdictions for a number of centuries, but that we are also faced with the fact that the law as thus defined has clearly formed the basis of legislative intervention in most of those jurisdictions. The provisions of the Civil Liability Act 1961, already mentioned, which permit a claim to be brought by the dependants of someone who dies as a result of the wrongdoing of a defendant are a case in point.

15.18 Whatever way one looks at the situation, there are potential anomalies. A person bringing an action while they are alive can, under the established case law, recover for the so-called “lost years”. On that basis, income which they might have hoped to have earned during a normal life expectancy but are now not likely to earn because of that life expectancy being reduced can be recovered. The person concerned can, of course, provided that they have sufficient mental capacity, do what they like with the money thus recovered. However, in many cases, not least those where there has been a very significant reduction in life expectancy, it may well be that the benefit of at least a portion of the damages recovered for those lost years will go to the dependants of the person who will, tragically, die much earlier than would otherwise have been the case. It may be that, in such circumstances, those dependants will benefit financially.

15.19 On the other hand, a claim brought after death by the dependants of a deceased will, insofar as financial loss is concerned, be confined to that proportion of the future income of the deceased which would have been lost by reason of their death but which would, as a matter of likelihood, have been spent on the dependants in question. It certainly does not necessarily follow that the ultimate benefit to the dependants will be the same in either case.

15.20 Whether, in practice, the total amounts from which the dependants may benefit might be better under one or other model is difficult to estimate and may well depend on the particular circumstances of each individual case. On one view, which is in substance the argument put forward on behalf of Medlab, essentially, as the law currently stands, that is a choice which parties must address on the basis of their best estimate of the circumstances prevailing in their own case. It is, of course, a choice which only arises where a person remains alive but has a significantly reduced life expectancy for in any case in which the person has already died as a result of an actionable wrong, the only recourse is to a claim under the Civil Liability Act.

15.21 On the other hand, there is the question as to whether it would ever be permissible for the dependants of a deceased to bring an action under the Civil Liability Act arising out of the death of the deceased in circumstances where the deceased him or herself had, while still alive, successfully prosecuted a case arising out of the same wrongdoing. The case law of the High Court and the Court of Appeal in that regard has already been briefly referred to. The issue awaits a final determination. If it is not possible for the dependants to bring such an action, then the difficulty is that the deceased would either have to forego bringing an action during their life (which might be unfair to them, for they might well have benefited during their remaining but reduced lifespan from whatever damages might have been awarded) or the dependants might potentially benefit unless there were to be a rule, as counsel for the Morrisseys suggested might exist, which prevented double recovery.

15.22 However, how such a rule would operate in practice might not be altogether fully clear. For example, a person may, at different times in their life, choose to exercise a decision to engage in paid employment and use some of that money to pay others to do work in the home or may do some of that work themselves. I use the term “work in the home” very loosely to encompass the whole range of things which may be provided free for the other occupiers of a household or others who may be dependent. To the extent that a person might have engaged in paid employment then damages might be recovered under the “lost years” doctrine. However, to the extent that they might have provided free benefits to their dependants and others from the same household, damages might only be capable of being recovered in an action taken by those dependants after the relevant death had occurred. But estimating which course of action would have been taken and, potentially, in what proportions, could present a very difficult equation.

15.23 As I see it, the underlying problem is that the entire basis of both the case law and legislative intervention in the area of damages arising out of death or reduction in life expectancy has operated for many centuries from a starting point that no such damages are recoverable, with very limited exceptions identified by the courts or by intervention by the legislature. While there may be particular circumstances where the courts can identify a straightforward evolution of the existing case law so as to accommodate a particular head of damage which may logically fit in with the overall scheme, it seems to me that there is an insurmountable danger in attempting to rewrite the underlying basis of the law of damages in this area. There are already anomalies enough without creating more.

15.24 To that must be added the fact that it is clear that statutes have been passed by the Oireachtas on an apparent assumption that the default position in law is that damages cannot be recovered for death save for those limited exceptions to which I have referred. Indeed, it seems to me that there is much merit in the argument put forward on behalf of Medlab, which drew attention to the fact that the only areas where the American courts would appear to have felt free to develop common law principles in this area was where there had not been legislative intervention.

15.25 In those circumstances, it seems to me that any further significant evolution in this area is one that can only be achieved by comprehensive legislation rather than by an evolution in the case law. I appreciate that the current situation does contain some anomalies. But the risk of creating further anomalies by a piecemeal approach on the part of the courts involving a radical alteration in the underlying common law assumption in this area is one which, in my view, should be avoided.

15.26 It follows, it seems to me, that the trial judge was in error in awarding Mr. Morrissey damages in respect of the costs of providing for services which Ms.  Morrissey might have been expected to provide free for the family in the event that she had lived to a normal life expectancy. It seems to me that such damages can, under the law as it currently stands, only be recovered in an action brought by dependants under the Civil Liability Act. If there are to be further changes in this complex area, it seems to me that they will be much better carried out through considered legislative intervention.

15.27 While it is true that one of the strengths of the common law is its ability to evolve to reflect changed circumstances, it is equally true that there are dangers in over-radical intervention, particularly where the consequences are by no means clear and the risks of creation of further anomalies are significant. Furthermore, where, as here, the legislature has already intervened to define the parameters of certain categories of loss which can be recovered, it seems to me to be appropriate to view this as an area where the legislature has adopted the common law position and sought to amend it. In such circumstances, the courts should lean against over-radical reinterpretation of the common law which might be said to be potentially inconsistent with the legislation.

15.28 In all those circumstances, it seems to me that if a less anomalous situation is to be arrived at in this area it will require legislation. I would, therefore, allow Medlab’s appeal against that head of damage awarded to Mr. Morrissey in respect of the cost of future services.

16. Conclusions
16.1 As noted at the beginning of this judgment, the background to this case involves a particular human tragedy. However, this Court has to deal with the legal issues which arise and, as agreed with by counsel at the oral hearing, there were essentially five sets of legal issues with which the Court was confronted. For the reasons analysed earlier in this judgment, I would propose the following conclusions in respect of each of those issues.

16.2 The first question concerns the proper standard of approach to be adopted by a screener involved in a scheme such as CervicalCheck. I have set out the reasons why I consider that the Dunne test remains the basis for identifying the legal standard of care by reference to which a claim in clinical negligence is to be assessed. To avoid any lack of clarity, I have made a number of observations in respect of that test. In substance, the legal standard of care applied in any clinical negligence claims, or indeed other professional negligence claims, requires the court to assess whether no reasonable professional of the type concerned could have carried out their task in the manner which occurred in the case in question. That overall test requires a court to determine what standard a reasonable professional would apply. For the reasons set out earlier in this judgment, I have used the phrase “standard of approach” to describe the standard that a reasonable screener would be expected to apply in order to avoid any confusion with the term “standard of care”, because that latter term has a precise legal meaning. As noted earlier, I consider that the use of the term “absolute confidence” may have created more confusion than clarity. However, it is clear that all of the relevant witnesses agreed that a screener should not give a clear result in respect of a slide unless they had no doubt but that the sample was adequate and did not contain any suspicious material. That standard is not one imposed by the court but rather one which stems from the profession itself. The determination of that standard requires either agreement between the parties or, in the event of disagreement, an assessment by the court of expert evidence.

16.3 I have also set out the reasons why I consider that it is clear that the trial judge applied the appropriate standard in reaching his conclusions.

16.4 The second and third set of issues concerned the contention made by both Quest and by Medlab which suggested that the trial judge had failed to engage properly with certain aspects of the case which they made on the facts and had, thereby, delivered an insufficiently reasoned judgment. I make some observations on the legal principles to be applied in assessing such a contention. I also note that, for laudable and understandable reasons, a somewhat truncated procedure was adopted in the High Court in this case.

16.5 As set out in the judgment, I conclude that, while there were a number of areas where it would have been preferable for the trial judge to have given more detailed reasons, the judgment did not, in its reasoning, fall below the irreducible minimum of reasoning, even where the Court has made all due allowance for the adoption of a truncated procedure. I also suggest that it might well be that, in some respects, the judgment might have fallen short of the standard required to survive a successful appeal had these proceedings followed their normal course. However, I conclude that the grounds of appeal put forward under this heading by, respectively, Quest and Medlab must fail.

16.6 The fourth set of issues arise in respect of the appeal brought by the HSE in relation to the finding of negligence made against it. The High Court had found the  HSE liable both on the basis of being vicariously responsible for the actions of the laboratories and also on the basis of having a non-delegable duty to the patients who availed of CervicalCheck such that the  HSE must be taken to have accepted responsibility for the non-negligent delivery of the service.

16.7 For the reasons set out earlier in this judgment, I have concluded that the High Court judge was incorrect to hold that the HSE were vicariously liable for the negligent acts of the laboratories. However, having analysed the law in the evolving area of non-delegable duty, I express the opinion that the  HSE did, in all the circumstances of this case, have such a duty in respect of patients availing of CervicalCheck. On that more limited basis than the one adopted by the High Court, I would dismiss that aspect of the  HSE’s appeal which suggested that it should not be fixed with any liability in respect of negligence established against the laboratories.

16.8 Fifth, and finally, there were two sets of issues arising under the heading of damages. An appeal on the award of damages was brought solely by Medlab with no similar appeal begin brought either by Quest or by the HSE.

16.9 The first area of appeal concerned the award of €500,000 for general damages to Ms. Morrissey. Having analysed the relevant case law, I express the view that €500,000 now represents the appropriate maximum damages to be awarded for pain and suffering in personal injury cases. I also express the view that Ms.  Morrissey is entitled to that maximum sum. It follows that, in my view, the appeal brought by Medlab in respect of the award of €500,000 for pain and suffering should be dismissed.

16.10 The second issue raised by Medlab in respect of damages concerned the award of damages to Mr. Morrissey in respect of losses attributable to having to replace services which would have been provided to the family by Ms.  Morrissey had it not tragically transpired that she will have a significantly reduced life expectancy. I have analysed the law in this area in some detail and set out the reasons why it may, in certain respects, be potentially anomalous. However, the underlying basis for this law goes back many centuries, has been followed in most common law countries and has been the subject of intervention by the legislatures in such countries in circumstances where it can only be inferred that the legislature accepted that the law which it was seeking to amend was as set out in that established common law jurisprudence. In those circumstances, I conclude that any change in the law in this area is a matter which must be the subject of legislation. It in turn seems to me to follow that the High Court was incorrect in awarding the sum in question to Mr.  Morrissey. In that respect, I would allow Medlab’s appeal in that regard. It is suggested that if the parties are not in a position to agree on the amount of such damages in respect of which the appeal is to be allowed, submissions are to be made to the Court on the matter within three weeks of today’s date.

16.11 In summary, therefore, I would dismiss all of the appeals save for the appeal of Medlab in relation to the award of damages in respect of loss of services. I would invite the parties to file, electronically, in court, within three weeks of today’s date, submissions as to the precise orders which the Court should make, including issues concerning the costs of these proceedings. In the event that there is any difference of opinion between the parties as to the precise orders which should be made, I would propose that the Court consider, in the current difficult circumstances, how best to arrange for the proper debate of those issues in a manner which is consistent with the highest levels of safety while at the same time complying with the requirements of justice.

Felix Moorehouse v The Governor of Wheatfeild Prison

, The Minister for Justice, Equality and Law Reform, Ireland and The Attorney General
[2010-5534 P]

High Court [Approved]

8 March 2021

unreported
[2021] IEHC 248
Mr. Justice Bernard Barton

March 08, 2021

JUDGMENT
1. This case was remitted back to the High Court by order of a majority of the Court of Appeal on foot of the Plaintiff’s appeal against the order I made dismissing his claim to have the following issues determined:

(1) Determination of the issue as to whether the Plaintiff was guilty of contributory negligence for the accident that befell him, as pleaded by Defendants;
(2) Apportionment of liability as between the Plaintiff and the Defendants if there is a finding of contributory negligence against the Plaintiff;
(3) Assessment of the Plaintiff’s damages, taking account of any apportionment of liability consequent on a finding (if any) of contributory negligence on the part of the Plaintiff.
2. Written submissions were exchanged and filed on behalf of the parties in advance of the resumed hearing which took place on the 2nd February 2021. It is not proposed to repeat in extenso the findings of fact which I made in my judgment delivered the 15th August 2017 (see neutral citation [2017] IEHC 535); rather these will be referred to where necessary in relation to the first issue and, if appropriate, in relation to the determination of the second issue. This judgment should, therefore, be read in conjunction with the judgment of this Court following the trial of the action.

3. The Court is not concerned with the question of liability. This was determined in favour of the Plaintiff by a majority of the Court of Appeal, Costello J. dissenting. For the reasons set out in the judgments of Edwards J. and Donnelly J., the Court of Appeal concluded that I had erred in law by making an order dismissing the Plaintiff’s claim in circumstances where the Plaintiff’s account of how the accident occurred had been rejected. Although obiter I stated that had the Defendant been found liable, I would also have found the Plaintiff guilty of contributory negligence and would have apportioned fault to a high degree against him; remarks which are consequently non-binding.

4. It follows that notwithstanding the Plaintiff’s failure to provide a cogent explanation for how his hand came to be in the path of the blades, the starting point for the resumption of the case is that absent evidence establishing that the Plaintiff had been subjectively reckless (of which there was no finding), his actions would have been no more than a causa sine qua non and not the causa causans. Having adduced adequate proof of the causa causans of the accident arising from the findings of negligence and breach of statutory duty on the part of the Defendants the liability therefor followed, and the Plaintiff is entitled to succeed in his claim against them.

5. In a case where the transcript of the evidence exceeds 4 days it is the practice of the Court of Appeal that the parties agree extracts of the evidence from the transcript which are relevant to the issues on appeal. In this case, the transcripts ran to 29 days. The practice was followed and consequently the Court did not have sight of large tranches of the evidence. Whether or not this explains the reference at para 92 of the judgement by Edwards J. to the “absence of evidence” to establish a finding of “subjectively reckless” behaviour by the Plaintiff is plainly a matter of conjecture; however, the transcript is in fact replete with evidence on which findings have been made, which on the Defendant’s submissions, if accepted, would warrant the Court coming to the conclusion that the Plaintiff was reckless and thus guilty of contributory negligence at common law as well as being in breach of statutory duty.

6. It follows in the circumstances of the case that the Court is concerned to determine whether, on the evidence, the actions or omissions alleged on the part of the Plaintiff were the result of factors such as an error of judgement, carelessness, heedlessness, inadvertence or inattention, or as a result of some positive or deliberate act involving the running of a subjective risk. In this regard it is pertinent to refer to the case pleaded by the Defendants at paras 3 and 4 of the amended defence delivered herein which reads as follows:

“3. The Defendants deny that they are guilty of the alleged contributory negligence or breach of duty or breach of statutory duty.

(a) The incident or accident was caused by the negligence or breach of duty and/or recklessness on the part of the Plaintiff.
(b) The Plaintiff was the author of his own misfortune.
(c) The Plaintiff acted contrary to warning signs in operating and/or purporting to operate the machine as alleged.
(d) The Plaintiff acted contrary to all instruction from the Defendants, their servants and/or agents in operating and/or purporting to operate the machine as alleged.
(e) The Plaintiff acted contrary to all warnings and/or instruction from fellow inmates in operating and/or purporting to operate the machine.
(f) The Plaintiff removed guarding from the machine in operating and/or purporting to operate same as alleged.
(g) The Defendants, their servants and/or agent had shut down the machine.
(h) The Defendants, their servants and/or agent had given instruction not to operate the machine.
(i) The Plaintiff was not authorised to operate the machine”.
7. At paragraph 4 (1) of the defence the following plea appears:

“Further if the accident or incident occurred in the manner alleged or at all and/or if the Plaintiff suffered the alleged or any personal injuries, loss and damage then the Defendants will claim that they are not responsible and/or liable or not wholly responsible or liable to the Plaintiff by virtue of the fact that same arose and/or was caused wholly and/or partly by the negligence and/or contributing negligence on the part of the Plaintiff for the reasons set out above.”

8. At the outset of the principal judgment delivered on the 15th August 2017 a number of issues, observations and findings were set out and discussed in greater detail later in the judgment. For the purposes of contextualising the first and second issues, it may be helpful to set out again the observations made which are relevant thereto as follows:

(i) The cutting/cropping and punch facilities constituted dangerous parts of the GEKA Minicrop which required guarding to minimise or avoid the risk of injury; the opening to the cropping facility was designed and fitted with an adjustable device known as a hold down guide which also served as a safety guard (the guide-guard);
(ii) At the time of the accident, the Plaintiff’s left hand was in the pathway of the shear blades of the machine whose guide guard had been removed; the identity of the individual and responsibility for the removal of the guide guard was in question;
(iii) Both the Plaintiff and Jonathan Nicholson, the Industrial Training Instructor (ITI) with responsibility for supervision and training in the workshop, denied removing the guide-guard; (The identity of the person who removed the guide-guard was established, accordingly, no finding was made against the Plaintiff or ITI Nicholson)
(iv) If fitted and properly adjusted, the guide-guard would have prevented any part of the Plaintiff’s hand entering the cropping compartment to the point where it would have been in the path of travel of the shear blades; the injuries could not have been sustained had the guide-guard been so positioned;
(v) The guide-guard was not a fixed guard; it was adjustable and removable without the use of a tool;
(vi) The cropping facility could be operated without the guide-guard in position; consequently, the cropping blades were exposed, accessible and clearly visible to the operator and anyone supervising the operation of the machine;
(vii) Shortly before the accident, a problem had arisen when two other prisoners were using the cropping facility as a result of which the steel flat or stock bar (steel bar) which they were trying to cut jammed between the cropper blades;
(viii) Following the report to him of the problem, ITI Nicholson removed the steel bar. Whether or not the machine had been completely switched off by him, it had not been locked out in a way which prevented it from being restarted;
(ix) The machine was supplied and fitted with a lock out facility in the form of a pad lockable device; in practice, this was not utilised prior to the accident by either the training staff or by those servicing the machine and was not fitted on the day of the accident;
(x) On the afternoon of the accident there were thirteen prisoners present in the welding workshop; whether the Plaintiff was actively participating in his course or whether he had been assigned to sweeping duties because the available welding booths were already occupied was in question; the Plaintiff claimed he was on his welding course, however ITI Nicholson gave evidence that because he had arrived late to the workshop the Plaintiff had been assigned sweeping duties. I was satisfied that regardless of whether or not the Plaintiff was assigned sweeping duties on the afternoon, he was entitled to use the GEKA cropping machine without obtaining permission to do so.
(xi) The instruction and supervision ratio of staff to prisoners considered appropriate by the IPS was eight to one; whether or not Prison Officer Vincent Maher was in the workshop with ITI Nicholson on the afternoon of the accident was in question; the Plaintiff claimed he did not see him there at any time before the accident; Officer Maher said he was present and gave instructions to the Plaintiff (The Court found that the Plaintiff did not receive any instructions from Officer Maher not to go near the machine.).
(xii) At the time of the accident, neither ITI Nicholson, Officer Maher nor any other member of the prison staff were present in the work and training area where the Plaintiff and the other prisoners were working; the period of absence was in question; The Plaintiff claimed that the area was unsupervised for 10 or 15 minutes at least whereas ITI Nicholson and Officer Maher claimed it was a matter of minutes. The Court found that ITI Nicholson and Officer Maher were both present in the workshop on the afternoon of the accident but that before the occurrence thereof and as a result of a problem which had developed with the GEKA cropping machine, ITI Nicholson had left the area to go to the office to get a lock out/out of order tag. He got delayed as a result of receiving a call from the governor which he took. In the meantime, Officer Maher left the vicinity of the machine and went into the storeroom. Neither Officer Maher nor ITI Nicholson were present in the workshop at the time when the accident occurred.
(xiii) Whether or not the Plaintiff had been instructed and trained in the safe use and operation of the GEKA, and whether or not shortly before the accident he and others in the vicinity of the machine had received instructions from ITI Nicholson and/or Officer Maher not to go near it was in issue; the Plaintiff claimed that he had received neither training nor instructions; ITI Nicholson and Officer Maher claimed he had received both. The Court found that the Plaintiff had received appropriate training and instructions on the use and operation of the machine and had demonstrated his competency in the use thereof to the point that he did not require permission in the workshop to use or operate it.
(xiv) Had such instructions been given not to go near the GEKA, they were confined to prisoners in the vicinity of the machine; those working elsewhere in the workshop would not have been aware that the machine was out of order and was not to be used; significantly, prisoners who had been trained and had demonstrated competence in the operation and safe use of the cropping facility could use the GEKA without seeking permission to do so; (In addition to findings that the Plaintiff had received appropriate instructions and training in the safe use and operation of the machine, he had demonstrated his proficiency in the use and operation thereof and did not require permission to use the machine for cutting steel flats. The court found that no express instruction was given to the Plaintiff not to go near or use the machine by either ITI Nicholson or Officer Maher and for the reasons set out in the judgment would not have been aware that such an instruction had been given to those who had been using or were working in the vicinity of the machine once a problem developed therein.).
(xv) At his request, the Plaintiff commenced a structured methadone programme on the 16th September 2008; he had been using illicit drugs before commencing the programme and had smoked heroin while on transfer to Wheatfield.
(xvi) As a matter of probability, he continued to use illicit drugs both before during and after the accident; details of the type, quantity and level of illicit drugs used were not canvassed with the Plaintiff;
(xvii) Whether the dose of methadone administered on the day alone or in conjunction with other illicit drugs would have had an effect on the Plaintiff’s cognitive and psychomotor functioning material to the cause of the accident was in question; (the court found that the administration of methadone alone and/or in combination with other illicit substances which had likely been ingested by the Plaintiff played no material role in the cause of the accident.)
(xviii), (xix), (xx), (xxi), (xxii), (xxiii), (xxiv), (xxv) and (xxvi) involve a series of subsidiary observations in relation to the use of methadone and illicit drugs as well as the screening therefore.
(xxvii) When stabilised on methadone, it does not follow from a positive result for cannabis and or benzodiazepine that 24, 48 or 72 hours later that the concentration of those drugs in the system is such as would produce a meaningful impact on the level of psychomotor functioning; with all such drugs assessment of the individual for effect by direct conversation, personal interaction and observation is clinically significant.
(xxviii) Any prisoner reporting being unwell or showing signs of intoxication or of being “strung out” is not permitted to enter the workshop but is returned to his cell and, if necessary, referred for medical attention;
(xxix) Cognitive and psychomotor function may be affected to a greater or lesser extent by the presence, quality, quantity, time and type of illicit drugs and/ or methadone in the system; whether the Plaintiff was stabilised on a methadone dose of 60 ml at the time of the accident was in issue; (the Court found that as the Plaintiff was admitted to the welding workshop following a conversation with ITI Nicholson it was highly unlikely that he was exhibiting any signs of being unwell or of being inebriated in any form and that had he been exhibiting any such signs, he would have been returned to his cell by a class officer. The Plaintiff took his dose of methadone most likely between 10 and 10.30 am on the morning of the accident. The Court found that there were no contra-indications apparent to the dispensary nurse when the Plaintiff presented himself for and was administered the prescribed dose of his medication. The Court accepted the evidence of Dr. Scully, who treated and assessed the Plaintiff from time to time before the accident that, had he any concerns about the Plaintiff’s medical capacity to attend and participate in the welding workshop at any time he would have raised and acted upon those concerns; there was no such evidence.)
(xxx) The provisions of the Safety, Health and Welfare Work Act, 2005 (the 2005 Act) and the Safety, Health and Welfare at Work (General Application) Regulations 2007 S.I. No. 299/2007 (the 2007 Regulations) applied to the prisoners when working in the prison workshops.
(xxxi) The Safety Statement in force for the prison workshops at the time of the accident which contained a risk assessment relevant to machinery was drawn up in 2003 and a General Metal Workshop Standard (MS1) was issued in June 2007 but neither were machine specific. Whether the relevant statutory requirements had been complied with was in issue; (the Court found that there was a breach of statutory duty on the part of the first, second and third Defendants in failing to comply with the requirements of the 2005 Act and in particular, Regulations 33 and 34 of the 2007 Regulations .).
(xxxii) The focus of the workshops was on training and up-skilling rather than on production.
(xxxiii) The metal/ welding workshop is self-contained and incorporates an office, toilet facilities, store/ stock room, as well as a work and training area; prisoners, whose names are recorded on a list, have to be admitted individually and are required to wear personal protective equipment at all times while in the welding workshop.
(xxxiv) Metalwork machines, including the GEKA, tools, welding equipment, ten ordinary and three auxiliary welding booths were located in the work and training area of the workshop.
(xxxv) The removal of or making adjustments to the guide-guard was restricted to ITI Nicholson and the servicing engineer; training on the safe use and operation of the machine included information about the purpose of the guide-guard together with an instruction that the machine was never to be used without the guide-guard in place; (the Court found that the Plaintiff had received instructions in training on the safe use and operation of the GEKA machine.)
(xxxvi), (xxviii) are concerned with the provision of PPE and the supervision of prisoners before leaving the workshop.
(xxix) Had there been supervision in the work and training area of the workshop at the time of the accident it is highly unlikely that the accident could or would have occurred;
(xxx) to (xxxi) were concerned with the timing of training sessions and with the issuance of disciplinary reports known as a P19;
(xxxii) Photographs of the GEKA taken by the ITM Austin Stack shortly after the accident show the work piece stop bar fitted in position to the back of the machine; whether the stop bar was missing at the time of the accident was in question; (the Court found that the backstop was in position and was not missing as suggested by the Plaintiff.)
(xxxiii) A Governor’s parade takes place every morning between 9 and 10.30 am. Prisoners are entitled to attend and bring any complaints or other issues of concern which they may want addressed to the attention of the Governor.
(xxxiv) When prisoners have mastered horizontal welding, they progress to vertical welding; the Plaintiff was still engaged in horizontal welding at the time of his accident.
(xxxv) Certificates of competency in the different types of welding are issued once sufficient levels of competency have been reached and demonstrated in front of an external verifier. A training record is kept by ITI Nicholson, generally filled in on a Friday.
(xxxvi) The record for the Plaintiff shows that he attended the welding course over four weeks, commencing on week ending 42 and that he received an induction, a safety video, and safety training, including manual handling, as well as guillotine training;
(xxxvii) and (xxxviii) are concerned with the post-accident servicing of the blades in the GEKA cropping machine.
(xxxvii) to (xli) were concerned with post-accident investigation and will not therefore be repeated. Suffice is to say that for comprehensive overview this judgment should be read in conjunction with the principal judgment of the court delivered in this case.
9. The question of whether or not the Plaintiff was subjectively reckless in doing whatever he did when operating the machine at the time of the accident falls for consideration in the determination of the first issue herein. I did not address it or make a finding in relation to that matter since I did not accept the Plaintiff’s account of the accident, and as a result concluded that he had failed to establish the case he had brought to Court and accordingly dismissed his claim. Given the circumstances in which the case has been remitted back to this Court for a resumption of the action and having regard to the first two issues which must be addressed, this is as convenient a place as any to set out the statutory provisions relevant thereto.

Contributory negligence and breach of statutory duty
10. Section 2 (1) of the Civil Liability Act, 1961 as amended provides for the interpretation of terms used in the Act. “Negligence” is defined as including “breach of statutory duty”. The Act made express provision for the apportionment of liability in a case of contributory negligence in s. 34 which reads as follows:

“34.—(1) Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the Plaintiff was caused partly by the negligence or want of care of the Plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the Defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the Plaintiff and Defendant: provided that—

(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally;

(b) this subsection shall not operate to defeat any defence arising under a contract or the defence that the Plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions of this subsection shall apply notwithstanding that the Defendant might, apart from this subsection, have the defence of voluntary assumption of risk;

(c) …

(2) For the purpose of subsection (1) of this section—

(a) …

(b) …

(c) the Plaintiff’s failure to exercise reasonable care for his own protection shall not amount to contributory negligence in respect of damage unless that damage results from the particular risk to which his conduct has exposed him, and the Plaintiff’s breach of statutory duty shall not amount to contributory negligence unless the damage of which he complains is damage that the statute was designed to prevent.”

11. A simple and classic example of a statutory duty designed to prevent a Plaintiff from injuring himself or herself is the Road Traffic (Construction Equipment and Use of Vehicles) Amendment No. 2) Regulations, 1978 S.I. 360/1978 requiring the use of seatbelts and crash helmets. Contributory negligence at common law has a different meaning in an action for negligence than for an action for breaches of statutory duty. See Stewart v. Killeen Paper Mills Ltd[1959] I.R. 436 at 441. Contributory negligence at the common law is founded on the principle that one owes a duty to take care for one’s own safety in any given set of circumstances. The duty of care owed by a Plaintiff in an action for breach of statutory duty, such as an action under the provisions of the Safety Health and Welfare at Work Act, 2005 (the 2005 Act) has long been considered less extensive than in actions for common law negligence. See Stewart above and Kennedy v. East Cork Foods[1973] I.R. 244 at 249.

12. There is a long line of authority for the proposition that carelessness, inattention or inadvertence on the part of an employee in an action for damages brought for breach of the provisions of the Safety in Industry Acts and more recently the Safety, Health and Welfare at Work Act, 2005, would not warrant the Court in making a finding of contributory negligence against the employee. See also Dunne v. Honeywell Control Systems[1991] ILRM 595 and most recently McWhinney v. Cork City Council[2018] IEHC 472 at para. 49. This is as convenient a point as any at which to mention that although the accident involving the Plaintiff occurred in the workshop of Wheatfield Prison and that the Plaintiff was not an employee in the ordinary industrial sense of the word, it was accepted that the provisions of the 2005 Act and the 2007 Regulations made thereunder were applicable.

13. The Court raised with the parties the decision of the Supreme Court in McSweeney v. McCarthy, (Unreported), delivered on the 28th January 2000 which appeared to be particularly relevant to the first two issues under consideration and in respect of which submissions were made by the parties. That case was decided against the background of the statutory scheme that the health and safety of employees established by the Safety in Industry Acts 1955 to 1980 and the Safety, Health and Welfare at Work Act, 1989. The case involved a trained painter who was employed by the defendant in a chemical factory. Part of his work duties involved carrying out painting at heights with the use of a ladder. The plaintiff fell from the ladder in the course of carrying out his duties. The ladder was neither tied by the plaintiff nor did the plaintiff use anybody to stand or restrain it while he was using it. The case came on for hearing at the High Court in Cork. The plaintiff’s claim was dismissed on the basis that the plaintiff had failed to establish any negligence or breach of duty including breach of statutory duty on the part of the Defendant. The plaintiff appealed against the decision. The Supreme Court allowed his appeal. Delivering the judgment of the court, Murray J., as he then was, observed at the foot of p. 8:

“In these proceedings it is common case that it was foreseeable that the Plaintiff at some point in the course of his duties would require the assistance of someone else to secure the ladder at it’s foot when he had to mount it. This is because the climbing of an unsecured ladder is inherently dangerous. It is also common case that, in the circumstances of this case, it would be placing too onerous a duty on the employer to contend that he should have provided the Plaintiff during entire his period of work with an assistant ready to hold the ladder, as the isolated need arose.”

And on p. 9 he continued:

“The reality of cases like the present is that both employer and employee had an opportunity to consider how the work should be carried out, whether it involved any dangers, and, if so, how they should be avoided. By denying liability because only the employee was present is in effect to seek to plead some sort of last opportunity rule. That, however, is not the basis of liability. Admittedly, the employee is more proximate to the events leading up to the circumstances in which the injury occurred. But this is not the test of liability. The test is dependent upon control of the work.”

The learned judge concluded at p. 17 of the judgment that:

“the Defendants were guilty of negligence and breach of duty, including statutory duty and the learned trial judge erred in law in not so holding.”

He then went on to make the following statement at the top of p. 18:

“Having found that it had not been established that there was negligence on the part of the Defendants, the learned trial judge did not consider the question whether the Plaintiff was guilty of contributory negligence. Again it is clear from the undisputed facts in this case that the Plaintiff himself was guilty of negligence and breach of statutory duty in failing to take reasonable care for his own safety. He fully appreciated the danger of ascending an unsecured ladder and the risk of injury attached thereto, but in spite of such knowledge, he knowingly took the risk of ascending a ladder which was not secured and when there was no person holding the ladder while he was ascending it. In so doing, he, as an experienced workman was not taking reasonable care for his own safety. In not so doing, he was not only in breach of the common law duty but statutory duties by then imposed, namely s. 125 (7) of the Factories Act, 1955 (as amended by Section 8 of the Safety in Industry Act, 1980 ).”

In the circumstances of that case the court apportioned liability 40% to the plaintiff and 60% to the defendant.

14. Section 13 of the 2005 Act provides for the general duties of employee and persons in control of places of work. Section 13 (1) provides an employee shall, while at work —

“(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work,

(b) ensure that he or she is not under the influence of an intoxicant to the extent that he or she is in such a state as to endanger his or her own safety, health or welfare at work or that of any other person,

(c) …

(d) co-operate with his or her employer or any other person so far as is necessary to enable his or her employer or the other person to comply with the relevant statutory provisions, as appropriate,

(e) not engage in improper conduct or other behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person,

(f) attend such training and, as appropriate, undergo such assessment as may reasonably be required by his or her employer or as may be prescribed relating to safety, health and welfare at work or relating to the work carried out by the employee,

(g) having regard to his or her training and the instructions given by his or her employer, make correct use of any article or substance provided for use by the employee at work or for the protection of his or her safety, health and welfare at work, including protective clothing or equipment,

(h) report to his or her employer or to any other appropriate person, as soon as practicable—

(i) any work being carried on, or likely to be carried on, in a manner which may endanger the safety, health or welfare at work of the employee or that of any other person,

(ii) any defect in the place of work, the systems of work, any article or substance which might endanger the safety, health or welfare at work of the employee or that of any other person, or

(iii) any contravention of the relevant statutory provisions which may endanger the safety, health and welfare at work of the employee or that of any other person,

of which he or she is aware.”

At para. 166 of the original judgment, I found that having regard to the reasons given and the findings made that there was a breach of statutory duty on the part of the first, second and third Defendants in failing to comply with the provisions of the 2005 Act with regard to requirements relating to the provision of a safety statement and risk assessment under the Act and with regard to the duties owed to the Plaintiff under the 2007 Regulations in particular Regulations 33 and 34. In terms of ordinary negligence there were express findings of negligence at paras. 143 and 144. For the purposes of the Civil Liability Act 1961, breaches of statutory duty on the part of the Defendants in this case constitute negligence on their part.

Submissions
15. The Defendants carry the onus of proof to establish, on the balance of probabilities, negligence and breach of statutory duty on the part of the Plaintiff in the sense described by Murray J. in McSweeney v. McCarthy, if there is to be a finding against him on the first issue. It is not intended to summarise the submissions made on behalf of the parties. Suffice it to say that on the evidence and the undisturbed findings of fact the contention advanced on behalf of the Defendant is that the only conclusion the Court could come to is that the several actions of the Plaintiff which resulted in him severing the fingers of his left hand were attributable to a series of deliberate actions which were grossly reckless and constituted a causa causans of the accident.

16. The suggestion advanced on behalf of the Plaintiff that, having rejected his account of the accident the Court could not now make a determination of contributory negligence in the absence of determining how the accident did occur, did not stand up to scrutiny and was without merit factually or at law. On the evidence and the findings made and left undisturbed on appeal there was not, as had been suggested on behalf of the Plaintiff, any element of the Court entering into the realm of speculation for the purposes of trying to establish the reasons for what the Plaintiff did, why he did it or what he was doing it for.

17. The plain facts of the matter were that he came to a machine the operation and purpose of which he was familiar. He had been instructed and trained in the safe use and operation of the machine. He knew the purpose of the machine was to cut metal flats. He knew that the production of flats from the introduction of a length of steel bar was dependent upon and involved a guillotine action about which he had been specifically made aware. He had used and operated the machine under supervision. He had established to Inspector Nicholson his proficiency and knowledge in the safe use and operation of the machine to the point that before using it to cut flats it was not necessary for him to seek the permission of Inspector Nicholson or for that matter any member of staff.

18. When the Plaintiff came to the machine on the afternoon of the accident it was immediately obvious to him, as it was to anyone else who approached it, that the guide-guard had been removed, revealing the blade opening and, in the process, the cropping blade. The Plaintiff knew that the function of the cropping blade was completely dependent upon the operator pressing a foot pedal, that releasing the foot pedal resulted in the cropping action stopping and the blade returning to its rest position. The Plaintiff’s hand was not resting on a steel bar. The back stop was in position, thus avoiding any necessity for him to judge the positioning or distancing of a steel flat in the machine. The Plaintiff’s left hand was palm upwards with the fingers in the path of travel of the cropper blade, a state of affairs visible to the Plaintiff when he pressed the foot pedal which he knew would immediately activate the shear blade.

19. These actions were all carried out in circumstances where he knew from the training and instructions he had received that the machine was only to be used for cutting steel flats. The sauce for the goose was good for the gander. Any alternative cogent explanation for what had happened acceptable to the court was not a sine qua non for a finding of contributory negligence, particularly when regard was had to the evidence before it and the facts as found. The Court was entitled to infer that whatever the Plaintiff was doing in using the machine, he knew that what he was doing was extremely dangerous and that it exposed him to a risk of serious injury which, in the event, is exactly what happened. Mr. O’Scanaill also addressed the Court at some length on the apportionment of liability and drew the Court’s attention to a number of authorities on the approach to be taken by the Court in relation to that exercise. He submitted that in the particular circumstances of the case, the blameworthiness of the Plaintiff far outstripped any blameworthiness that could be attributable to the Defendant and that this was a case where an apportionment of 85 to 90% against the Plaintiff was warranted.

20. On behalf of the Plaintiff, Mr. Keane contended that having rejected the Plaintiff’s account of the accident, it was not open to the Court to speculate on how else the accident may have occurred. This was not a case in which the Defendants had advanced an alternative version of the accident; rather, the case was one where the only explanation or version of the accident was the one advanced by the Plaintiff and that had been expressly rejected for the reasons set out in the judgment of the Court. To find contributory negligence in these circumstances would be to find contributory negligence in abstracto, a conclusion which was legally impermissible. The Court was, so to speak, hoisted on the petard of its own judgment, and could not resile from the consequences of the outcome when it came to address the issues. It had not been pleaded nor had it been put, at least in a full-frontal way to the Plaintiff, that what he was doing amounted, in effect, to a deliberate act of self-harm no doubt because the Defendants would not have been in a position to establish such a case. If pleaded but they were unsuccessful it would have exposed the Defendants to a claim for aggravated damages on the grounds that such a plea amounted to an allegation that the Plaintiff’s claim was a fraud.

21. It was argued the Court of Appeal had found that it was the actions of the Defendants and not those of the Plaintiff which were the causa causans of the accident, in other words, that it was the Defendants’ negligence and breach of statutory duty and not that of the Plaintiff which was responsible for the occurrence of the accident. Mr. Keane drew the Court’s attention to various extracts from the judgment of this Court concerning the findings of fact and the conclusion reached thereon that the Defendants were guilty of negligence and were in breach of statutory duty. The Court was also brought through the judgment of Edwards J. in relation to this aspect of the case.

22. Quite apart from these submissions it was argued on behalf of the Plaintiff that in approaching the issue of contributory negligence, particularly in the context of a breach of statutory duty, that the circumstances were to be viewed not from the perspective of the ordinary reasonable person; rather, what had to be borne in mind were the life circumstances in which the Plaintiff found himself, his circumstances at birth, his social circumstances, the fact that the Court had already acknowledged he was a highly disadvantaged member of society and had grown up and was involved in criminal activity, was a person who left school at an early age, lived in very deprived circumstances, was illiterate, and was innumerate. These were factors which had to be taken into the balance.

23. Referring the Court to McWhinney v. Cork City Council[2018] IEHC 472 and McSweeney v. McCarthy, which depended on its own facts, it was not enough to show an error of judgment or inadvertence on the part of the Plaintiff if contributory negligence was to be established in circumstances where a Defendant is found to be in breach of statutory duty. Mr. Keane distinguished the facts of McSweeney v. McCarthy from the facts in this case, drawing the Court’s attention to the fact that in that case, the actions or omissions of the Plaintiff had been admitted having been negligent. In the absence of a satisfactory explanation as to how and why the accident occurred there was no evidence or finding of fact which would permit the Court to find the Plaintiff guilty of contributory negligence and breach of statutory duty.

24. Even if the Defendants could get over that barrier, they were faced with the difficulty of establishing that the injuries which befell the Plaintiff were other than as a result of an error of judgement or inadvertence absent which there could be no finding against him on the first issue. When regard was had to the majority judgements of the Court of Appeal a finding that the Plaintiff guilty of contributory negligence and an apportionment of fault to the extent of 85 to 90% against the Plaintiff would arguably be a perverse; the higher the apportionment the stronger the argument would be. The perversity of such a conclusion would arise from what in effect would amount to a reversal of the decision of the Court of Appeal that the causa causans of the accident lay with the Defendants.

25. In addressing these issues Mr. Keane urged the Court to have regard to the spirit as well as the letter of the majority judgments in the Court of Appeal. He submitted that it could be inferred from the judgment of Edwards J. in particular that if there were to be a finding of contributory negligence, such should be less than 50%. since in the absence of evidence to establish a finding that the Plaintiff was subjectively reckless any act or omission on his part was a causa sine qua non and not the causa causans of the accident. I understood this submission to be that the only causa causans of the accident was the negligence and breach of statutory found against the Defendants. If the Court was against the Plaintiff on the submission in relation to a finding of contributory negligence, Mr. Keane argued that any apportionment on the second issue should be limited to a maximum of 20%. If, having regard to all the circumstances of the case it was not possible for the Court to establish different degrees of fault, s. 34 (1) (a) provided for the apportionment of liability equally.

26. Finally, Mr. Keane also advanced a claim for aggravated damages because of the conduct of the Defendants during the trial and what amounted to a continuation of that conduct by the Defendants in the submissions made on the first and second issue by Mr. O’Scanaill. I shall deal with that matter presently but returning to the present argument Mr. Keane drew the attention of the Court to the inescapable fact that it was the Defendants who were in control of the workshop, of the system of work therein and of the Geka cropping machine. It was they, who failed to make the Plaintiff aware that the machine had been taken out of use and had left it in a condition constituted a very serious danger to anyone who attempted to use it unawares.

Decision
27. I have adverted earlier to the practice in the Court of Appeal of limiting the transcripts in cases where oral evidence was given over more than four days to an agreed book of extracts of the transcript of the evidence relevant to the issues in the appeal. It is not apparent from any of the judgments delivered in the court precisely what extracts were before the judges who heard the appeal. However, and having had the benefit of the entire transcripts of the evidence at the time when the principal judgment was delivered and having reread these insofar as they are relevant to the first and second issues I am satisfied, with respect to the learned judge, that there is no factual basis to the reference of an absence of evidence to establish on the balance of probabilities that the Plaintiff was subjectively reckless.

28. Whatever the explanation, the transcripts of the Plaintiff’s own evidence, not to mention the evidence of the engineers and the photographic evidence is replete with evidence to support the conclusion that the behaviour of the Plaintiff was itself a causa causans of the accident. This conclusion has very significant implications for the submissions advanced on behalf of the Plaintiff by Mr. Keane. While I accept the submission that it is not appropriate for the Court to venture into the realm of speculation in circumstances where it has rejected the only explanation advanced in the case for the accident, I do not accept for the reasons advanced by him that it follows there cannot be a finding of contributory negligence against the Plaintiff, quite the reverse.

29. In that regard I accept the submissions made on behalf of the Defendants by Mr. O’Scanaill, particularly in light of the observations made in relation to the evidence which, it would appear, was not part of the extracts from the transcript made available for the purposes of the appeal. I consider it pertinent to mention this because had the relevant transcripts been available to be read by my learned colleagues I have absolutely no doubt, having again had the benefit of reading the transcripts, that the reference to the absence of such evidence would not have been made, especially by such a learned and experienced judge as Edwards J.

Conclusion; Contributory Negligence
30. In coming to the conclusion that there was contributory negligence on the part of the Plaintiff I am mindful of the submission made to the Court by Mr. Keane concerning the social and economic background and circumstances not to mention the disadvantages experienced by the Plaintiff in life which were, if I may be permitted to say so, appropriately recognised by the Court in its principal judgment. That being said, the Court has found that although this unfortunate individual’s life was blighted on so many levels, including addiction to illicit drugs, he was able to hold down a job before he committed the crime which ultimately sent him to Wheatfield after conviction. He was able to drive a car and once in prison, apart from trying to get his life back on some sort of normal track, he volunteered for training under Mr. Nicholson so that he could acquire a marketable skill he could deploy once he had served his sentence and was released back out into society.

31. I had no impression that the Plaintiff took this course of action involuntarily. Similarly, although not entirely successful in weaning himself off all illicit substances, he showed a willingness and determination to try and rid himself of his affliction by going on the treatment programme offered to him and other prisoners at the prison. I was particularly impressed by the evidence of Dr. Scully, which I have re-read for the purposes of this judgment. He was aware of the training facilities and programmes offered and available to inmates in the prison workshop and that some of the tasks involved operating dangerous machinery and the use of potentially dangerous materials, such as welding torches. If he had had any concerns about the suitability or capacity of a prisoner to engage in any of these activities, particularly from a safety perspective, he would have intervened. He had no concerns for the suitability or safety of the Plaintiff throughout the time he was undergoing his training or subsequently up to the time of the accident.

32. It has to be remembered that a very considerable period of time elapsed between the occurrence of the accident and when the action ultimately first came on for hearing in December 2015 and trundled on into the following year. All other factors being considered, it would hardly be surprising that the Plaintiff exhibited memory difficulties by the time he came to give evidence. What is material, however, is the Plaintiff’s condition on the day of the accident. The Court has already found that his methadone treatment or a combination thereof with illicit substances played no causative role in the occurrence of the accident and that had he been exhibiting any signs of being unwell or of being in any way affected by his medication and/or use of illegal substances he would not have been permitted to enter the workshop. Subjectively, therefore, the Plaintiff was considered fit to come into a workshop in which he was entitled to undertake unsupervised welding work and, whether or not he had been assigned to sweeping/cleaning duties on that afternoon, was entitled to use the GEKA cropping machine without permission or supervision.

33. Lest it should be necessary to do so, the Court confirms as findings of fact the several matters cited earlier herein and incorporated in the submissions made on behalf of the Defendants. Accordingly, upon those findings I am satisfied and the Court finds that the Plaintiff’s actions in approaching a machine the safe use, operation and purpose of which he had been trained and instructed, that he knew involved a guillotining mechanism, that as a result of the removal of the safety guide guard the cropping blade was visible to him, that it operated by pressing a foot pedal and that he could see his hand upturned in the path of the cropping blade while not resting on a steel flat when he pressed the foot pedal, constituted subjective recklessness and disregard for his own safety; his actions were sheer folly. That he subjectively ran a risk of causing himself a very serious injury when he pressed the machine pedal in beyond question. In the circumstances the Court finds that the Plaintiff was guilty of contributory negligence and was in breach of statutory duty contrary to the provisions of s. 13 of the 2005 Act.

Apportionment of Fault
34. The next issue which falls for determination is the apportionment of fault. This arises in circumstances where it is proved that the damage suffered by the Plaintiff was caused partly by the Plaintiff’s negligence or want of care and partly by the wrong of the defendant. Section 34 (1) of the 1961 Act provides that in those circumstances, damages recoverable in respect of the wrong shall be reduced by such amount as the Court thinks just and equitable having regard to the “… degrees of fault of the plaintiff and the defendant” , subject to the provisos set out in sub. paras. a, b and c of the subsection. Fault is not to be equated with the potency of the causative factors, whether they be acts or omissions, moving from the plaintiff and defendant; rather, fault in this context is equated to blameworthiness of the parties’ respective contributions to the loss and damage. Particularly having regard to the submissions made on behalf of the Plaintiff the measurement of fault is not carried out by purely subjective standards but by objective standards. As observed by Walsh J. in O’Sullivan v. Dwyer(1971) I.R. 275 at 286

“The degree of incapacity or ignorance peculiar to a particular person is not to be the basis of measuring the blameworthiness of that person. Blameworthiness is to be measured against a degree of capacity or knowledge which such a person ought to have had if he were an ordinary reasonable person…Fault or blame is to be measured against the standard of conduct required of the ordinary reasonable man and the class or category to which the party whose fault is to be measured belongs…”

This passage was quoted with approval by Kenny J. in Carroll v. Clare County Council[1975] I.R. 221 at 226-227. See also McCord v. Electricity Supply Board[1980] ILRM 153; Iarnrod Eireann v. Ireland[1996] 2 ILRM 500; Hackett v. Calla Associates Ltd[2004] IEHC 336; Hussey v. Twomey[2009] IESC 1; Moran v. Fogarty[2009] IESC 55; Gallagher v. McGeady[2013] IEHC 100; Shaughnessy v. Nohilly & Anor[2016] IEHC 767 at para. 135 and Kelly v. Meegan[2020] IEHC 698.

35. The percentage reduction of the damages achieved by this process must be just and equitable. The percentages of fault arrived at in the authorities cited on apportionment are illustrative only since the result in was clearly grounded in the particular circumstances of the case to which the relevant principles have been applied. Approaching the task in the way mandated, I find myself unable to accept the submissions of either party with regard to the apportionment which is appropriate. While it is clear that the failure to lock out the machine, ensure the guard was in place and/or that officer Maher remained on station was undoubtedly blameworthy behaviour by omission, however it was also clear that the positive actions of the Plaintiff in operating machine at a time when he could see that his upturned hand was in the path of travel of the cropping blade was blameworthy by commission.

Conclusion; Apportionment of Fault
36. On my view of the evidence and the accident circumstances the Plaintiff’s behaviour while to a significant degree more blameworthy than the blameworthiness of the Defendants was not so blameworthy as to warrant visiting upon him the degrees of fault suggested by the Defendants at 85 to 90%. In my judgment the justice of the case is fairly met by an apportionment of 70% against the Plaintiff and 30% against the Defendants. It follows that the damages to which the Plaintiff is entitled will be reduced accordingly.

Quantum
37. The Plaintiff suffered horrific injuries as a result of the accident injuries which he was primarily responsible for inflicting on himself. The parties were invited to and made submissions to the Court on the level or ranges of general damages in which they considered damages ought to be assessed. Mr. Keane suggested a range of €250,000 to €350,000. He considered a reasonable value in respect of the Plaintiff’s physical injuries to be €275,000 and for the psychological/psychiatric injuries a sum of €50,000, making in aggregate a sum of €325,000. Mr. O’Scanaill, on the other hand, submitted that the appropriate range for general damages on full liability was €150,000 to €175,000. As a result of the accident the Plaintiff sustained amputations to the middle phalanges of the index, middle and ring fingers and through the distal phalanx of the little finger of his left non-dominant hand. By any stretch of the imagination these were very serious injuries.

38. The Plaintiff was brought by ambulance to Tallaght Hospital from where he was transferred to the plastic surgery unit at St. James’ Hospital. He was taken to theatre under a general anaesthetic and underwent micro surgical re-implantation of the index, middle and ring fingers of the left hand. The distal amputated part of the little finger was not salvageable and he underwent a primary terminalisation of the left little finger. Unfortunately, the re-implanted fingers gradually lost their blood supply and died over a number of days. The Plaintiff was taken back to theatre on the 2nd December 2008 and had the failed re-implanted segments of index, middle and ring fingers removed and the amputation stumps formally terminalized. In March 2009 the amputation stumps had healed, although they were still tender and uncomfortable.

39. The Plaintiff was examined and medically reported on in relation to his physical injuries by Mr. J. A. Orr, Consultant Plastic Surgeon. He prepared reports dated the 12th May 2009, and 18th November 2013. He gave evidence. The severed parts of the fingers had been cleanly cut. The amputated digits had been recovered, packaged, and sent with the Plaintiff to hospital. Medical assessment was that there was a possibility of saving the fingers, hence the initial surgery. The injuries suffered by the Plaintiff would have been extremely painful. Mr. Orr explained that any information coming back from the frayed ends of the nerves would be interpreted at a deep level within the brain and within the spinal cord as pain which was difficult to localise. He considered that this sensation would have been particularly distressing though the massaging as a therapy advised and undertaken by the Plaintiff helped to desensitise the area.

40. Mr. Orr described the Plaintiff as having received a severe irreparable mutilating injury to his left hand which in the long term would leave the Plaintiff with a permanently mutilated appearance together with a very considerable loss of function and the likelihood of chronic pain and discomfort in the amputation stumps. Because the Plaintiff was left with very short stumps of the fingers of the index, middle and ring fingers and with no joint beyond his little metacarpal knuckle he is left with a particular disability in terms of fine manipulation. Mr. Orr described what remained of his fingers as being functionally very limited, for example tying shoelaces, doing up buttons and things like that or any form of fine manipulation such as screwing, unscrewing, or putting on and tightening nuts and bolts would be very difficult. He thought that even when it came to more crude functions, such as gripping a handle on a brush or the handle of a shovel or something like that there would also be limitations because there is no capacity to curve fingers around the handle. Unskilled vocational work not to mention the work for which he had been trained would be problematic.

41. With regard to possible reconstructive surgery Mr. Orr referred the Plaintiff thought the Plaintiff might benefit from assessment by Dr. Eadie, a specialist in microsurgical reconstruction of the hand, with a view to a microsurgical transfer or part of a toe to the index and middle finger stumps. Mr. Orr explained that this kind of reconstruction requires a highly motivated patient who is able to completely give up smoking and to cooperate with all aspects of surgery and rehabilitation. As the Plaintiff was a smoker and would apparently have problems in complying with the regime required to prepare himself for such surgery as well as with the required rehabilitation programme, he considered that this option was at best a possibility. He explained that this surgery was generally offered to someone who had a very specific need for a particular finger. He gave as an example, a professional musician. This option also means giving up a toe. In the event he thought it was unlikely that reconstruction surgery of this type was a viable option for the Plaintiff.

42. Mr Orr had expressed a somewhat more optimistic opinion in his initial report; however, he rode back from that quite considerably when giving evidence. The Plaintiff was likely to experience a continuing clumsiness in the use of his left hand for the foreseeable future. The Plaintiff’s many complaints were, in his opinion, entirely consistent with the injury and the physical findings on examination. The impression I formed of Mr Orr’s evidence was that given his socio-economic background and circumstances the Plaintiff’s injuries were going to result in a permanent functional disability that will have significant vocational implications for him. He expects the Plaintiff to have ongoing cold intolerance and painful symptomology if, for example, he inadvertently knocked the stumps of his finger or the stump of a finger against something.

43. With regard to alternative treatment options, Mr. Orr did not think that prosthetics were a realistic option. Even with motivated patients, the majority of people with this kind of injury have a tendency to stop using the prosthetics. There are various problems associated with that kind of treatment. I took from this evidence that fitting the Plaintiff with prosthetic fingers was not a realistic option. Having had an opportunity to view the Plaintiff’s left hand, it was abundantly clear that on return to society, all other things being equal, the Plaintiff was going to be left with a severe physical disability which would have vocational implications. His capacity to undertake vocational work in the field for which he was being trained in the prison workshops is significantly reduced if not altogether closed to him.

44. Evidence was also given by Dr. Sean O’Domhnaill, Consultant Psychiatrist and Psychotherapist. He prepared a report for the assistance of the Court and also gave evidence. In addition to the sequelae of his physical injuries, his opinion was that the Plaintiff had suffered what he described as psychological pain and suffering and that he would need treatment for what he described as the Plaintiff’s “traumatic psychological condition, meeting the criteria for a diagnosis of posttraumatic stress disorder ”. He was at pains to explain, however, that this condition was masked to a considerable degree by the use of prescribed and elicit medication, an issue that would also need to be addressed.

Damages for ‘Pain and Suffering’
45. The third issue which the Court must address is the assessment of general damages for what is generally referred to as ‘pain and suffering’ to date and into the future. O’Higgins CJ. commenting on the purpose of general damages in Sinnott v. Quinnsworth[1984] ILRM 523 stated at 531:

“General damages are intended to represent fair and reasonable monetary compensation for the pain, suffering, inconvenience and loss of the pleasures of life which the injury has caused and will cause to the Plaintiff”.

In carrying out an assessment of general damages for personal injuries the Court is required to apply well settled principles of law. The award must be reasonable and fair to both parties; the amount thereof must be proportionate to and commensurate with the injuries sustained to date of assessment and, where relevant, for the consequences of the injuries likely to be sustained in the future. In addition, the Court is required by virtue of s. 22 of the Civil Liability in Courts Act, 2004 to have regard to the Book of Quantum.

46. The meaning of “pain and suffering” in the context of general damages has been the subject of discussion in authoritative academic legal works on the law of tort and the law of damages as well as in jurisprudence on the subject. For my part, the most comprehensive and yet succinct definition is that offered by McCarthy J. in Reddy v. Bates[1983] ILRM 197 at p. 205 where he stated that general damages:

“…are frequently stated to be for pain and suffering; they would be better described as compensation in money terms for the damage, past and future sustained to the plaintiff’s amenity of life in all its aspects, actual pain and suffering, both physical and mental, both private to the plaintiff and in the plaintiff’s relationships with family, with friends, in working and social life and in lost opportunity”

47. That the Plaintiff has suffered a serious and permanent injury to his left hand is not in issue. The Book of Quantum approaches the ranges of damages for arm or hand amputations by expressing a sum up to a certain limit for the loss of single digits. Where multiple digits are involved the book states:

“There are several factors that need to be considered when calculating the assessment for loss of multiple digits. Such factors would include, which digits and how many digits, dominant hand, appearance, impact on hand function, age, gender and occupation impacts.”

The different facets of life which may be affected as a result of a tortious act covered within this meaning of general damages for ‘pain and suffering’ appears to me to be particularly apposite in the Plaintiff’s case.

48. He has been left with a lifelong cosmetic deformity and functional disability which can fairly be described as profound. It is a source of understandable psychological distress and upset not to mention a constant reminder of a truly horrific accident. I accept the medical evidence adduced in respect of the injuries on behalf of the Plaintiff and am satisfied, and the Court finds that the option of further surgery or fitting the Plaintiff with prosthetics is not a reality for him. Criticism for failing to mitigate his loss by giving up his addiction and submitting to the possibility of further surgery does not, in my judgment, withstand scrutiny. As I understood the evidence of Mr. Orr this option was in any event more of a possibility than a probability; what is more it would involve the Plaintiff giving up a toe which would also have to be taken into account in assessing damages. As it is, the Court has approached the task on the premise that such treatment and surgery is unlikely to be carried out.

49. In assessing damages the Court does not add up figures considered appropriate within the ranges in the Book of Quantum given for each digit. The cumulative effect of the loss of multiple digits to the extent suffered by the Plaintiff has a far greater significance and impact than, for example, the loss of one or two digits, leaving relatively good hand function and ability with adaptation to carry out fine manipulative tasks. Added to all of this, Mr. Orr expressed the opinion that if the Plaintiff accidentally clips his hand off something he will experience a very unpleasant electrical type of pain and that this is a sequela which he thought was likely to persist indefinitely.

Conclusion
50. Having regard to the Plaintiff’s evidence as to how he feels about his injuries, his experience of pain, his description of the limitations of hand function and the medical evidence, in particular, the evidence of Mr. Orr, I am satisfied, and the Court finds that a fair and reasonable sum to compensate the Plaintiff for past and future pain and suffering proportionate to and commensurate with his injuries is €275,000.

Claim for Aggravated Damages
51. An application was made on behalf of the Plaintiff for aggravated damages which was tied into an application made by the Defendant at the conclusion of the trial to have the Plaintiff’s claim dismissed pursuant to the provisions of s. 26 of the Civil Liability and Courts Act, 2004 which Mr. Keane characterised as an accusation, in effect, that the Plaintiff had committed perjury. It was a dreadful accusation to make against the Plaintiff and, in Mr. Keane’s submission, was utterly groundless, particularly in circumstances where the Court found the plaintiff to be an honest witness who had not intentionally set out to mislead the experts to whom he spoke or, for that matter, the Court. My attention was drawn to the transcript of the evidence relating to the application and to an interjection which I made in response to an observation that the Act made no provision for a penalty to be visited on a Defendant for making an inappropriate application under s. 26 in respect of which I “aggravated damages”.

52. It was submitted that this was a remedy to which the Plaintiff should now be entitled, particularly having regard to the findings of fact which the Court made with regard to Inspector Nicholson and Officer Maher and the repetition in submissions on the resumed hearing that the Plaintiff had essentially made up evidence concerning the absence of the backstop to explain away how his hand came to be in the path of the cropping blades, this not to mention the inadequacy of the discovery which was made by the Defendants. The attention of the Court was drawn to the judgment of Cross J. in Keating v. Mulligan[2020] IEHC 47 where €10,000 was awarded for aggravated damages by the trial judge in circumstances where he found that the s. 26 application had been inappropriate.

53. I pause here to mention that in the course of submissions I had raised a query with counsel as to whether, if an award of aggravated damages was appropriate, any award would be affected by an apportionment of fault if made. I accept Mr. Keane’s submission that having regard to the provisions of s. 34 (1) the apportionment envisaged by that provision in circumstances where liability has been found to rest with the Plaintiff and with the Defendant the apportionment was confined to damages recoverable in respect of the wrong and does not apply to aggravated damages.

54. Mr. O’Scanaill accepted that the s. 26 application did not, as he put it, find favour with me; however, he submitted that a significant number of important facts asserted by the Plaintiff had been shown to be incorrect as a result of the cross examination. The depiction in the principal judgment that the Defendant had adopted an approach to the defence of the action as a “circling of the wagons” had to be seen in the context of the statements made and the evidence given by officers Maher and Nicholson as opposed to how the whole case had been run.

55. The approach which had been taken to the evidence of officers Maher and Nicholson was one of caution and what weight was to be attached to the evidence. Mr. O’Scanaill submitted that there was no authority for the proposition that if a Defendant deployed the provisions of s. 26 by making an unsuccessful application, aggravated damages must follow. That was a preposterous suggestion and was certainly not what the Oireachtas intended when the provision was enacted. Moreover, the submissions offered in the course of the costs application had to be seen in that context and not blurred in the way suggested by the Plaintiff.

56. I have read and considered the judgment of Cross J. in Keating v. Mulligan regarding the inappropriate use of s. 26 and dicta to similar effect made by him in Lackey v. Kavanagh[2013] IEHC 341. I find myself in complete agreement with his Lordship. Section 26 of the 2004 Act was not enacted to provide defendants with an additional weapon in the armoury which a Defendant was entitled to deploy in defence of a claim for tactical or other reasons not grounded in evidence or information available at the time sufficient to found the reasonable belief that the plaintiff had or had caused evidence /information to be given which he or she knew to be false and/or misleading in material respect.

57. While the Oireachtas made no provision for an award of aggravated damages to be made to a Plaintiff in circumstances where a Defendant had made an unjustified and inappropriate application pursuant to s. 26, I am satisfied that the Court enjoys an inherent jurisdiction to make such an award where in the circumstances of the case the interests of justice so require. I have reread the transcript in relation to the initial application, and the application regarding costs. I am also mindful that in the course of his submissions Mr. O’Scanaill offered an apology if anything he had said was construed or had been construed in his submissions on the subject issues as a charge against the plaintiff; none such was intended. Having reread his submissions I am satisfied his remarks should not be construed in a way and associated with other matters in respect of which the original application under s. 26 had been moved.

Conclusion
58. I can well understand why Mr. Keane considered it appropriate to make an application for aggravated damages; however, in all the circumstances I consider that at the time it was not unreasonable on the part of the Defendants to move such an application. Applying a subjective test, the onus of proof on a defendant to establish on the balance of probabilities that a plaintiff gave or caused to be given information and/or evidence which he or she knew to be false and/or misleading in any material respect is a heavy one, and not without good reason given the mandatory nature of the consequences which are to follow in the event that the bar is met; in this instance I am satisfied that it was not. The original application was essentially dismissed on the merits, accordingly, and for these reasons the application for aggravated damages is refused.

Ruling
59. There being no claim for special damages the Court will enter judgment in favour of the plaintiff for the amount assessed in respect of general damages less 70%. And the Court will so order.

Leidig v O’Neill

[2020] IECA 296 (02 November 2020)

Noonan J.

Haughton J.

Murray J.

JUDGMENT of Mr. Justice Noonan delivered on the 2nd day of November, 2020

1. This appeal is brought by the appellant (“the defendant”) against the quantum of an award of damages made by the High Court (Eager J.) sitting in Kilkenny on the 6th June, 2019.

Facts

2. The respondent (“the plaintiff”) was born on the 24th April, 1993. His evidence was that on the 20th August 2015, when the plaintiff was aged 22 years, he was driving his motorcycle along Main Street, Goresbridge, County Kilkenny when the defendant’s motor car emerged without warning from a side road to the plaintiff’s left. This resulted in a relatively low speed accident with the plaintiff’s motorcycle colliding with the right front wheel of the defendant’s car. This caused the plaintiff to be thrown upwards and forwards out of his seat and back down onto the seat. He absorbed most of the force of the impact through his arms and wrists. His head struck the motorcycle’s windscreen. The defendant admitted liability and the case proceeded as an assessment of damages.

3. The plaintiff said that he attended his General Practitioner on the evening of the accident complaining of pain, in particular, in his non-dominant left wrist which was swollen and tender and had limited movement. He was referred to St. Luke’s Hospital in Kilkenny for an x-ray which was reported as negative for a fracture. His wrist was placed in a splint and he was given painkiller medication. He also suffered a laceration over his eye which was treated with an adhesive strip. The plaintiff again attended his General Practitioner on the 28th September, 2015 still complaining of severe pain and was referred to Aut Even Hospital in Kilkenny for an MRI scan, which showed a fracture of the scaphoid.

4. The plaintiff’s wrist was placed in a plaster cast and he was referred to Mr. Eamonn Kelly, Consultant Orthopaedic and Hand Surgeon, at the Beacon Clinic in Dublin. He saw Mr. Kelly on the 6th November, 2015 who applied a new plaster cast to the fracture which was described as undisplaced and accordingly it was hoped might heal with a further period in a cast. The cast was ultimately removed on the 21st December, 2015 and he was advised to commence physiotherapy. However, a CT scan on the 21st March, 2016 showed that the fracture was persisting. Ultimately the fracture did not heal naturally and the plaintiff underwent surgery on his left wrist on the 2nd September, 2016 by Mr. Kelly.

5. This comprised an open reduction with an internal fixation using a screw and also a bone graft harvested from the plaintiff’s right iliac crest. He was again in a cast for some eight weeks. An x-ray taken in January 2017 suggested that the fracture had now united. Mr. Kelly reviewed the plaintiff again in September 2017 when in addition to his wrist, he had some complaints of symptoms in the area from where the bone had been harvested. The plaintiff’s treatment was by that time concluded and he had a number of residual complaints arising from his injuries which he outlined to the trial judge.

6. At the time of the accident, the plaintiff had just graduated from the University of Wales with a degree in mechanical engineering. The plaintiff had for many years been interested in motorsport and his ambition was to work in that area when his education concluded. However because of the accident, he was unable to pursue that career, at least at that stage. The plaintiff complained of ongoing pain and discomfort in his wrist, particularly in cold weather, which affected a number of his previous hobbies including fishing, hunting and playing the violin.

7. His ability to carry out mechanical work and metal fabrication on motor vehicles was affected. Coming from a farming background, he experienced difficulty in operating farm machinery. He commenced a job on the 22nd January, 2018 with a company called Autolaunch in County Carlow, a tool and dye company. This was a desk job, unlike the type of employment he had hoped to pursue in the motorsport area but for the accident. He complained of difficulty performing fine movements and repetitive tasks with his left hand and indicated to the judge his concerns for the future.

Expert Evidence

8. The plaintiff himself was the only witness to give viva voce evidence to the court. The expert reports on both sides were agreed. For the plaintiff, these consisted of three reports of Mr. Kelly, Consultant Orthopaedic and Hand Surgeon, three reports from his General Practitioner, Dr. Canning, and one report from Mr. O’Dwyer, Consultant in Emergency Medicine. A report from Ms. Ciara McMahon, Vocational Consultant, was also submitted. For the defendant, two reports were put before the court, one from Mr. Colin Riordan, Consultant Hand and Plastic Surgeon, and one from Mr. Marius Cassidy, Vocational Consultant.

9. Mr. Kelly’s first report is dated the 21st April, 2016, some eight months after the accident. The plaintiff was first seen by Mr. Kelly on the 6th November, 2015. The MRI of the plaintiff’s left wrist showed an undisplaced fracture at the waist of his scaphoid. Mr. Kelly felt that it was possible that it might heal following a further period in a cast, and a new cast was applied on that date. That remained in situ for about six weeks and was removed on the 21st December, 2015. At that stage, the x-ray appeared to suggest that the fracture had healed.

10. However, his difficulties persisted and on the 21st March, 2016, Mr. Kelly advised the plaintiff that a CT scan of the left wrist demonstrated a persistent fracture. It was explained to the plaintiff that his options were to undergo surgery to fix the fracture, or wait and see if it went on to unite. The plaintiff was more inclined to the latter option. Mr. Kelly described the injury to the plaintiff’s left wrist as severe, and the non-union of the fracture was related to the violence of the original impact. Such fractures often have ongoing symptoms but it was too early to assess the outcome.

11. Mr. Kelly’s second report is dated the 6th September, 2017, at two years’ post-accident. The conservative treatment had not been successful and accordingly, the plaintiff was admitted to hospital on the 2nd September, 2016 for open reduction and internal fixation of the left scaphoid using a screw and a wedge graft harvested from his right iliac crest. He again had a plaster cast applied. This was removed at eight weeks’ post-surgery and when seen by Mr. Kelly on the 16th November, 2016, the plaintiff said his wrist felt better and was non-tender. A further review on the 11th January, 2017 showed him to be improving although with some ongoing loss of extension. X-rays suggested the fracture had united.

12. On the date of that review, 6th September, 2017, the plaintiff was two years’ post-accident and one year post-surgery. He complained of tenderness and hypersensitivity in the right iliac crest where the bone graft was harvested. Because of his prolonged treatment, he had not been able to fully return to farm work or his leisure pursuits. He was on no medication and complained of no sleep disturbance. He complained of difficulties with fine activities and reduced lifting capacity. He was sensitive to vibration driving the farm machines. His hand got stiff after a while and was stiff upon waking. The operation scar on the volar or palmar side of his wrist was tender in the distal area. Examination showed him to have regained all but the last of his extension. His scar was quite florid.

13. Mr. Kelly’s opinion was that the plaintiff still had significant symptoms in his wrist which were appropriate to his injury. Patients with such injury often have ongoing symptoms and such injury can lead to degenerative arthritis over a longer period but it may take many years to develop. Overall patients with fractured scaphoids are likely to be aware of some symptoms on an ongoing basis.

14. Mr. Kelly’s final report is dated the 26th March, 2019, now some three and a half years’ post-accident. The plaintiff told Mr. Kelly that because of the prolonged period of time he was out of action, he never really got back into race car engineering. He was now working for a tool and dye company at a desk job. He was working long hours and the combination of that and ongoing wrist symptoms have reduced his leisure activities. He complained of some pain in the wrist on waking in the morning, worse if he had been involved in physical activity the previous day.

15. He was aware of tingling in his fingers. Physical activity and using tools and machinery caused pain in the wrist. Physical examination showed that the plaintiff appears to have a Reynaud’s phenomenon, which is sensitivity to the cold, apparently unrelated to the accident. He had an operation scar of five centimetres which was well healed and now non-tender. His extension was almost full and the rest of range of movement in his wrist was normal. There was no swelling or deformity. X-rays showed the scaphoid to be fully healed with no evidence of degeneration or malalignment. There was no sclerosis of the scaphoid.

16. Mr. Kelly’s final opinion was in the following terms: –

“He is now [three and a half] years since the accident and his fracture has healed and the scaphoid looks normal on x-ray. There is no evidence of sclerosis or deformity. The wrist is not swollen or tender. He has an almost full range of motion.

He continues to complain of pain on use of his wrist. He states that he has not returned to many of his leisure activities including country sports and working with his motorbike since the accident.

It is not unusual for someone with this sort of injury to complain of some ongoing symptoms. This is related to the nature of the injury, the impact force and the fact that the scaphoid is integral in the functioning of the wrist. However, one would expect his symptoms to gradually improve, although he will most likely always have some fatigue pain and episodic ache in the fracture area.”

17. In his previous report, Mr. Kelly had said that scaphoid injuries can lead to arthritis and other symptoms. However, this concern is not repeated in his final report.

18. The defendant’s expert, Mr. Colin Riordan, Consultant Hand and Plastic Surgeon, issued one report only dated the 13th January, 2019 based on an examination on the 28th August, 2018. Mr. Riordan outlined the history in similar terms to Mr. Kelly. He documented the plaintiff’s current complaints as sporadic discomfort in the wrist, pins and needles occasionally in the left hand and the left wrist feeling weaker than the right. Occasionally movements with his left hand could be uncomfortable. He noted wrist extension was reduced to 45 degrees compared to 70 degrees in the right wrist. He noted the scar on the wrist as well as a 4.5 centimetre scar over the iliac crest from the bone graft.

19. It would appear that the most up-to-date x-ray available to Mr. Riordan was the 16th November, 2016 which showed that the fracture line was still evident and thus not fully united. However, it is clear from Mr. Kelly’s subsequent report that full union in normal alignment occurred subsequently. Mr. Riordan’s opinion was that scaphoid fractures which unite in a reasonable position and do not involve the articular margin, as here, are not normally associated with the later development of degenerative changes.

20. Some ongoing symptoms of discomfort as well as weakness of grip strength occur and persist into the long term. His opinion was that the plaintiff’s present disability is not severe but amounts to a loss of about 5% of the function of his hand. The late development of degenerative changes is unlikely and no other late complications are to be expected. He remains fit for his present occupation.

21. Three reports were submitted to the court from Dr. Michael Canning, the plaintiffs’ General Practitioner. The first of those sets out the initial history. The second report is dated the 5th June, 2018. It describes his complaints regarding his wrist, already covered in the consultant reports to which I have referred. He also notes that the plaintiff suffered post-traumatic stress disorder after the accident which disturbed his sleep. This appears to have resolved by the time Mr. Kelly saw the plaintiff in September, 2017 as he notes that the plaintiff had no sleep disturbance.

22. Dr. Canning’s final report is dated the 17th July, 2018 and appears to be a letter in response to correspondence from the plaintiff’s solicitor. In that report/letter, Dr. Canning says that it seems unlikely that the plaintiff will ever do physical work again. He says that it does not seem possible that he will ever work as an automotive engineer again. He says that his wrist injury has not improved at all in three years and is likely to get worse rather than improve. These observations by Dr. Canning are entirely at odds with the views of both Mr. Kelly and Mr. Riordan and do not appear to have been advanced or relied upon by or on behalf of the plaintiff at the trial.

23. The plaintiff was seen by Ms. McMahon, the Vocational Consultant, on the 13th May, 2019, some three weeks before the trial. She sets out his education, family and work history and his interests and hobbies, and details the injuries sustained. Ms. McMahon had access to the medical reports to which I have already referred. Under the heading the “Current Situation”, Ms. McMahon catalogues a large number of complaints made by the plaintiff to her which do not feature in any of the medical reports or indeed the pleaded case. She noted that the plaintiff’s lengthy rehabilitation impacted on his motivation to pursue his previous career ambitions to work in the motor racing industry. She notes that the plaintiff reports some slight improvement at the area of the bone graft, although still has loss of sensation and is conscious of the scars there.

24. She observes that the plaintiff’s reported ongoing difficulties suggest that he would have difficulty coping with the demands of hands-on work in the motorsport industry, as he is unlikely to cope with repetitive or prolonged hands-on work on engines or bodies of vehicles. She accepts that if the plaintiff is to return to the engineering environment, he may need to update his training and the plaintiff in his evidence, spoke of considering pursuing a master’s degree in that regard. The conclusion in the final line in Ms. McMahon’s report is “he is however unlikely to be capable of employment in his original area of choice…”

25. I am not entirely certain that this is a conclusion that is supported by the medical evidence and insofar as it is based on complaints by the plaintiff that are not reflected in that evidence, is one that is somewhat difficult to sustain. However, there is no doubt that the plaintiff was prevented from pursuing his career, initially at any rate, as a result of the accident, and his career had taken a different path when he eventually entered the employment market. The plaintiff himself perceives his injury as a career impediment as noted in the report of the defendant’s vocational assessor, Marius Cassidy who states (at p. 5): –

“Mr. Leidig reports that he envisaged himself in a ‘hands-on’ role in his career as an automotive engineer, which from his view would include significant amounts of fabrication (i.e. use of both hands together to carry out welding and assembly work) so he considers that the injury to his left hand has closed off the opportunity of following this chosen career.”

26. In that regard, the court was invited by counsel for the plaintiff to award damages based on a loss of opportunity to pursue his career of choice.

Submissions to the Trial Judge

27. Counsel for the defendant referred the trial judge to the Book of Quantum and in particular, the part dealing with upper limb injuries to which I will refer further below. Counsel submitted that the injury falls within the category of moderately severe for which the Book of Quantum provides a range between €54,200 and €70,100. With regard to the claim for loss of the plaintiff’s intended career, counsel submitted that the only evidence of this was speculative anecdotal evidence from the plaintiff himself which did not discharge the burden of proof.

28. Counsel did however concede that a sum could be awarded to take account of the “vocational upset” and it should be built into the general damages as a claim for loss of opportunity. Counsel further submitted that such an award would have to be commensurate with the general damages and appeared to suggest that it should not exceed one third of the general damages.

29. Counsel for the plaintiff in reply, submitted that the injury in terms of the Book of Quantum was within the severe and permanent condition category. With regard to the plaintiff’s career, counsel submitted that his difficulties were self-evident and were covered in Ms. McMahon’s report. The trial judge then proceeded to deliver an ex tempore judgment.

Judgment of the High Court

30. Eagar J. proceeded to set out the background facts and to summarise the medical reports. The trial judge does not appear to have referred specifically to the plaintiff’s own evidence or made any particular findings in relation to it. The judge referred to Mr. Kelly’s reports and read through sections of each of them. The judge then turned to Ms. McMahon’s report and again read through sections of that report. The judge did not refer to any of the defendant’s medical reports.

31. He then proceeded to assess damages in the following terms (at p. 57 of the transcript): –

“The court, in awarding damages, has to have regard to the Book of Quantum and the court does have its views in relation to and has considered the Book of Quantum. This is clearly a severe and permanent condition and it’s at the top end of that scale and the court is proposing to award for the injuries to the wrist the sum of €70,000; in respect of his loss of his career the court awards him a further €40,000; and for the loss of his hobbies a further €15,000; in respect of pain and suffering for the future the court awards him a further €30,000; making in all a total sum of €175,000 (sic), and plus the €8,574.55 by way of general damages.”

32. The final figure mentioned by the trial judge was in fact an agreed sum for the special damages. The total of the general damages awarded was €155,000 rather than the €175,000 referred to by the trial judge, and that was subsequently corrected.

Discussion

33. The proper approach to the assessment of general damages for personal injuries was most recently discussed by this court in McKeown v. Crosby [2020] IECA 242. In brief summary, the award of damages must be proportionate in the context of the cap for general damages for the most serious injuries, set at €500,000 by the Supreme Court in Morrissey & Anor. v. HSE & Ors. [2020] IESC 6. It must also be proportionate in the context of awards given by the courts for comparable injuries. It must be fair to the plaintiff and to the defendant. If the Book of Quantum is relevant to the particular injury or injuries that are in issue, the court is obliged to have regard to it as a guide to the ultimate award.

34. Before an appellate court can interfere with an award of damages, it must be satisfied that no reasonable proportion exists between the award and what the appellate court would be inclined to give – see Rossiter v. Dun Laoghaire Rathdown County Council [2001] 3 IR 578. A court of appeal should only interfere with an award of general damages where it considers that there is an error in the award which is so serious as to amount to an error of law. Where the expert evidence is given by way of agreed reports, as here, the appellate court is generally in as good a position as the trial judge to assess that evidence, while recognising that the trial judge is undoubtedly in a better position to assess that evidence in the context of its impact on the particular plaintiff concerned.

35. In the present case, both parties in their submissions accepted, as indeed did the trial judge in his judgment, that the Book of Quantum was a relevant consideration particularly as the primary injury suffered by the plaintiff was well defined and categorised in the Book. Both parties made submissions on which category the injury fell into. Wrist injuries are dealt with at pages 43-44, and the last type of injury, and the one that is relevant in this case, is “Fracture” on p. 44.

36. In that regard, the book provides as follows: –

“The wrist contains many bones (radius, ulna, eight carpal bones) all of which make up the wrist joint. In view of this complexity and variety it is difficult to provide very specific ranges for each ‘wrist fracture’. Fractures that involve the joint are usually considered more complicated than others due to the increased impact on movement.

Minor – €19,300 – €36,800

Simple non-displaced fracture to any of the bones of the wrist which has substantially recovered.

Moderate – €35,000 – €45,000

Simple or minimally displaced fractures with a full recovery expected with treatment.

Moderately severe – €54,200 – €70,100

Multiple fractures that have resolved but with ongoing pain and stiffness which impacts on movement of the wrist.

Severe and permanent conditions – €68,400 – €78,000

Complex and multiple fractures to the bones within the wrist which required extensive surgery and extended healing and may result in an incomplete union and the possibility of having or has achieved arthritic changes and degeneration of the wrist and may affect the ability to use the hand.”

37. Counsel for the defendants submitted that the injury fell within the “moderately severe” category while counsel for the plaintiff suggested it was in the “severe and permanent conditions” category, which the trial judge accepted. I would respectfully disagree with the trial judge that this injury fell into the severe and permanent conditions category and agree with the submission of the defendant that the moderately severe category is more appropriate. Severe and permanent conditions are illustrated in the context of, for example, incomplete union, which may ultimately lead to an arthrodesis or fusion of the wrist.

38. In the present case, there is no doubt but that, after a somewhat protracted course, the plaintiff achieved a good result. The fracture healed in normal alignment. At three and a half years’ post-accident, there was no evidence of degeneration nor was it suggested by the expert consultant on either side that this was likely to occur. There was no sclerosis or stiffening of the wrist’s soft tissues. There was no swelling or tenderness. The plaintiff had an almost full range of movement subject to a slight limitation of the extension of the wrist. He was on no medication and had no sleep disturbance.

39. Mr. Kelly’s view was that the plaintiff’s symptoms would continue to improve but he was likely to always have some fatigue pain and episodic ache in the fracture area. It must be borne in mind also that the injury was to the plaintiff’s non-dominant wrist. It does not appear to me therefore that on any realistic assessment that this could be categorised as a severe and permanent condition.

40. However, it must be accepted that the plaintiff was left with a five centimetre scar on the volar/palmar aspect of his wrist which this court had the opportunity of seeing in recent photographs. Although there is an obvious scar present, I do not think it could realistically be regarded as cosmetically disfiguring to more than a minimal degree. Similarly, although the plaintiff suffered a wound to his eyelid, that had healed without any obvious trace. I have already referred to complaints referable to the bone graft site.

41. As I have said, it would appear that the trial judge intended to consider and apply the Book of Quantum but he appears to have done so on a misapprehension as to its correct application. Clearly the figures provided for in the Book of Quantum encompass the entirety of the damages appropriate to a particular injury. However, the trial judge appears to have fallen into error in awarding a sum of €70,000 based on the Book of Quantum, but evidently only for pain and suffering to date as he went on to award a further sum of €30,000 for pain and suffering into the future.

42. In my view, he also erred in awarding a separate heading of damage for loss of the plaintiff’s hobbies in the amount of €15,000. That is clearly to be encompassed within the range of damages for pain and suffering. In Shannon v. Shannon [2016] IECA 93, in giving a judgment with which the other members of the court agreed, Irvine J. set out (at para. 43) a number of questions that the court might consider having regard to in reaching its assessment of damages for pain and suffering. This list of questions, at item (viii), expressly included a consideration of the limitations imposed on the plaintiff’s activities such as leisure and sporting pursuits, as here.

43. The award for general damages therefore amounted to €115,000 before the addition of any sum for loss of opportunity. In Rossiter, the Supreme Court held that it was appropriate to award a sum for loss of job opportunity even where it had not been clearly established that the plaintiff’s future income may not be adversely affected, albeit that the range of jobs open to him would be reduced. As Fennelly J. noted (at page 582): –

“Undoubtedly, the effects on future employment prospects are an element that must be taken into account in assessing the plaintiff’s damages. However, in my view, it should be considered as an element of the general damages.”

44. In the present case, it might on one view be argued that the plaintiff had not established, on the medical evidence, that his job opportunities were in fact, limited in the future by virtue of the injury he suffered, although the trial judge seems to have accepted the plaintiff’s own evidence and that of Ms. McMahon that this was so. In fairness however to the plaintiff, counsel for the defendant in closing submissions appears to have broadly accepted the proposition that it was open to the court to take account of the vocational upset, as it was described, and an award of damages for loss of opportunity not greater than one third of the overall award could be considered by the court.

Conclusion

45. I am satisfied that the award of general damages in this case was excessive to a degree that rendered it disproportionate and an error of law. That seems to have arisen to some extent by an erroneous interpretation of the Book of Quantum by the trial judge in considering that it merely referred to damages for pain and suffering to date. That error was compounded by the trial judge treating the plaintiff’s loss of hobbies as a head of damage separate from pain and suffering. In my view, the plaintiff’s wrist injury fell at the mid range of the “moderately severe” category.

46. Having regard to the Book of Quantum range for this category, and to the other injuries suffered by the plaintiff I have described above, I consider that the appropriate figure for pain and suffering to date is the sum of €50,000 together with a further sum of €15,000 for pain and suffering into the future, making a total of €65,000. Having regard to the trial judge’s acceptance of the plaintiff’s evidence concerning his work limitations and the concession properly made by counsel for the defendant to which I have referred above, I would propose adding an amount for loss of job opportunity, both to date and into the future of €25,000. The total award for general damages will therefore be €90,000 to which shall be added the special damages of €8,574.55.

47. I would therefore allow the appeal and substitute for the order of the High Court judgment in the sum of €98,574.55.

48. With regard to costs, the plaintiff will have a period of 14 days to make written submissions not exceeding 2,000 words and the defendant will have the same period to respond.

49. As this judgment is being delivered electronically, Haughton and Murray JJ. have indicated their agreement with it.

McGroarty v Cobh Gold Club

Mark McGroarty v Diarmuid Kilcullen, Stephen McCormack Care of Cobh Golf Club, Mimi Stack Care of Cobh Golf Club, Christopher Stack Care of Cobh Golf Club and Tony McKeown
2017/4157P

High Court [Approved]

28 October 2021

unreported
[2021] IEHC 679
Ms. Justice Niamh Hyland

October 28, 2021

JUDGMENT
Summary
1. On 5 June 2015, the plaintiff, a scratch golfer, lost his left index finger while assisting with building works at Cobh Golf Club (the “club”), due to negligence on the part of the defendants. The defendants, all trustees of the club save for the fifth defendant, owed a duty of care to the plaintiff and their negligence caused the plaintiff’s injury. However, there is a significant dispute about liability in circumstances where the accident took place on the premises of a golf club. The defendants allege the plaintiff was a member of the club and as such cannot sue the other members of the golf club (represented by the first to fourth defendants).

2. The plaintiff argues that he was not a member at the time of the accident due to his subscription not having been paid up at the time prescribed by the constitution of the club and, as such, is entitled to recover as against the defendants.

3. I have concluded that the constitution of the club, properly interpreted, requires that a member’s subscription is to be paid by 31 January each year, failing which membership shall be deemed to be terminated. It is true that the practice of the club was to ignore this rule and to treat persons, including the plaintiff, as members even where the subscription had not been paid. Indeed, in this case, the plaintiff entered club competitions and represented the club on teams playing interclub tournaments, although he had paid only a small part of his subscription by 31 January 2015.

4. However, following the decision in Dunne & Ors v Mahon & O’Connor[2014] IESC 24, the rules of clubs cannot be taken to be altered by implication, including by the practice of a club, in circumstances where those rules represent a contract between all of the members and where the members commit their efforts and resources to the club on the basis of the rules as they exist at the time of joinder.

5. The club’s acceptance of a payment by the plaintiff (such payment being less than the subscription amount) after the termination date does not alter the situation. There was no evidence that the club had reinstated the plaintiff after his membership was terminated, or that this payment was a reinstatement payment. Nor was there any evidence of a waiver by the club of its requirements in relation to payment of the subscription.

6. Accordingly, I find the plaintiff was not a member of the club at the relevant date and is therefore entitled to recover as against the defendants.

Pleadings
7. The personal injuries summons delivered on 29 May 2017 sets out the plaintiff’s claim for damages for negligence, breach of duty, breach of statutory duty and/or breach of contract. Particulars delivered on behalf of the plaintiff plead, inter alia, that the defendants failed to provide a safe place and system of work, that they failed to adequately assess the risks involved, act on them or warn the plaintiff about them and that they unnecessarily exposed him to those risks. Failures are pleaded in relation to the number, competence and supervision of staff, as well as failures to comply with the Safety, Health and Welfare at Work Acts 1989 and 2005 and the Occupiers’ Liability Act 1995.

8. The particulars of the claim against the fifth defendant reproduce many of the pleas as against the first to fourth defendants. In addition, it is pleaded that that the fifth defendant failed to use proper equipment such as a workbench while cutting the timber and he caused or permitted a circular saw (an electrically powered saw) to come into contact with the plaintiff’s hand.

9. On 18 July 2017 the solicitor for the first to fourth defendants issued a notice for particulars. In the replies to those particulars of 7 February 2018, the solicitors for the plaintiff identified, inter alia, that under the terms of the club’s constitution, the plaintiff was not a member as of 31 January 2015, but that he had previously been so since 2010. However, it is pleaded that his subscription was not fully paid on the date of the incident.

10. It was also claimed that, should the plaintiff be deemed a member of the club, then a member to member contract would arise as per the decision in Dunne, the terms of which would entitle the plaintiff to compensation in the circumstances of the case.

11. On 9 May 2018, solicitors for the fifth defendant delivered their defence, pleading, inter alia, that the plaintiff was acting voluntarily in tandem with the fifth defendant, the works having been organised by Mr. Nigel Britton in his capacity as club captain. Additionally, they plead contributory negligence on the part of the plaintiff.

12. This was followed by the defence of the first to fourth defendants on 18 May 2018. The first to fourth defendants contended by way of a preliminary objection that the plaintiff was a member of the club, being an unincorporated association, and as such was restrained from effectively suing himself. In addition, it was argued that as a member he was himself responsible for ensuring safe and proper work practices. The plea in respect of the member to member contract was denied in its entirety. It was further pleaded that any personal injury was caused by the fifth defendant and/or the contributory negligence of the plaintiff. However, at the hearing of the action, it was accepted that the conduct of the plaintiff could not be described as reckless and as such there was no contributory negligence.

13. The plaintiff delivered a reply of 2 July 2019 which was largely a traverse of the various pleas in the defences.

Facts and Evidence
14. On 5 June 2015 the plaintiff was present at the club, assisting the fifth defendant in the carrying out of building works, specifically, the timber cladding of the outside of the golf pro shop. Both the plaintiff and the fifth defendant were carrying out the said works in a voluntary capacity to benefit the club and were not being paid. They commenced the works on 1 June 2015.

15. The fifth defendant was a qualified carpenter. The plaintiff did not have any training or expertise in the work which was being carried out and was present simply to provide general assistance to the fifth defendant with unskilled tasks such as lifting and moving objects. The plaintiff had been asked to volunteer for the said work by Mr. Nigel Britton, club captain. Mr. Britton had contacted the plaintiff, by telephone, on 31 May 2015, and informed him that the individual who was meant to be available (who he understood to be Mr. McKeown’s worker) was not available and enquired whether he, the plaintiff, would assist the fifth defendant. That evening, the plaintiff received a subsequent phone call to confirm he would not be required, but on the morning of 1 June 2015 he was contacted by Mr. Britton by text and was asked to attend, and he did.

16. On the morning of 5 June 2015, the plaintiff was told by the fifth defendant to hold a long plank of timber balanced on a single milk crate, while the fifth defendant cut the timber with a circular electric saw. The plaintiff was holding the timber when the fifth defendant lost control of the saw, which made contact with the plaintiff’s left hand. The plaintiff suffered severe injuries to his left hand resulting in his left index finger being partially severed, as well as severing the extensor tendon of his middle finger. He was airlifted by helicopter to Cork University Hospital where he underwent an operation to amputate his left index finger.

17. Mr. Philip Doherty, B.E., expert engineer on behalf of the plaintiff and Michael Byrne B.E., expert engineer on behalf of the fifth defendant gave evidence. Both engineers agreed that the fifth defendant was negligent in the manner with which he attempted to cut the piece of timber in question. In particular, it was agreed that the fifth defendant should have secured the piece of timber by way of a clamp, or otherwise, and not with a human hand. In addition, it was agreed that the use of a milk crate as a support structure was unsafe in all the circumstances. It was also agreed that, due to the plaintiff’s lack of expertise and training, he should not have been in such close proximity to the electric saw.

18. In relation to the liability of the club, the engineers agreed that it was negligent and in breach of its statutory obligations as set out in sections 15 and 17 of the Safety, Health and Welfare at Work Act 2005, as well as the Safety, Health and Welfare at Work (Construction) Regulations 2013. It was agreed that there were a number of other construction projects on the club premises at the same time as the works the plaintiff and fifth defendant were engaged in, and that there should have been a suitable person appointed to supervise the manner in which the entire construction site was being operated. Evidence was given that if such a person had been appointed, the plaintiff would not have been allowed on the site as he was unqualified, and, in particular, did not hold a safe pass for construction works. (Safe pass cards are required by persons working on construction sites. They establish that the worker has completed a safety awareness training programme that aims to allow persons to work on construction sites without being a risk to themselves or others). Evidence was also given that, if the plaintiff and the fifth defendant had been observed carrying out the cutting of the timber in the manner which caused the accident, the work would have been stopped immediately.

19. In relation to the plaintiff’s membership of the club, the evidence was uncontroversial in relation to the payment of his subscription. The membership year runs from 1 October to 30 September. The plaintiff had initially joined in October 2009 and had paid both his joining fee and his annual subscription fee over a number of years by way of direct debit spread over the membership year. By October 2012 he had paid off his joining fee and he set up a direct debit for his subscription fee. He continued that practice for the membership year October 2013 to September 2014 and paid off his subscription fee for that year by August 2014.

20. However, because of lack of funds, he cancelled his direct debit and no direct debit payments were made from September 2014 onwards. He made a cash payment in January 2015 of €140 and a further cash payment in April 2015 of €150. However, that meant that on the relevant date of 31 January, by which time his payment for the year 2014/2015 was due under the relevant club rule (rule 3.4.2 (e)), he had only paid €140 whereas in the previous year his subscription was €869. He had therefore only paid a small proportion of his subscription on 31 January 2015.

21. In cross examination, the plaintiff gave evidence that he had played (and won) a competition known as the Captain’s Prize on 31 May 2015, some 5 days before the accident, being a competition reserved to members, that he held a handicap authorised by the Golfing Union of Ireland through his membership of the golf club and that he participated in competitions in 2014 as against other clubs, including one known as the Barton Shield. He had always paid his fees by instalment. He never considered he was not a member of the club due to a failure to pay his subscription by 31 January.

22. Mr. Des McKee, the current treasurer and former president of the club, who was also a founding member of the club, gave evidence on behalf of the club. Mr. McKee accepted that that the golf season ran from 1 October to 30 September in any given year and that the version of the constitution of the club in effect at the time of the accident required subscriptions to be paid by 31 January each year.

23. Mr. McKee’s evidence was that a lax view was taken of payment of membership subscriptions. Payment by instalment was permitted. Delays in payment were generally accepted on the basis that a full discharge would ultimately be made of the subscription due in that subscription year. Members were also allowed to pay by lump sum.

24. Mr. McKee accepted that for the year 2014/15, the plaintiff had not paid his annual subscription by 31 January 2015. Mr. McKee stated that this rule was not strictly enforced by the club, and that a number of other individuals in the club would have been in breach of this rule. He gave evidence that a member had never had their membership terminated for not paying their subscription.

25. Mr. McKee gave the following evidence on cross examination:

“Q. So he fell into the category whereby on the 31st he wasn’t fully paid up. You ignored the rule. He then had, like the others, the influx of fees. He didn’t have an influx. He only paid 150, 150 at that stage, yes.

A. Yes, in April, yes.

Q. Okay. So as I say, you had effectively two, you’d the rules according to the constitution and you’d what was operating on the ground. It seems that you didn’t even, you didn’t even – not only was the system of payment different, people weren’t even deemed terminated or their membership wasn’t even deemed terminated. Even that didn’t happen. You just turned a blind eye.

A. I’ll repeat again, I’m not aware of anybody’s membership being constituted – being cancelled on the list February any year.”

Case Law on Implications of Club Membership for a Plaintiff
26. It is well established that a club is, as a matter of law, an unincorporated association. Various consequences flow from this, one of which is that the club per se is not a legal entity and therefore cannot be sued in its own name. The difficulty that this presents is circumvented by plaintiffs generally suing the trustees of a club or the office holders of the club, such as the president, secretary, treasurer and so on, who act effectively as nominees on behalf of the body of members. Although it appears from the pleadings that only the identified defendants are being sued, in fact the legal theory underlying such proceedings is that all the members of the club are sued and the office holders or trustees are being identified as a proxy or nominee for all club members.

27. It is clear from the personal injuries summons that the first to fourth defendants of the club are sued on behalf of all persons who are full members of the golf club as of 5 June 2015.

28. In response, the first to fourth defendants plead that they were at all material times the owners and/or occupiers of the club. That it is accepted that the plaintiff, by suing the first to fourth defendants, was in fact suing all members of the club is confirmed by the preliminary objection identified in the defence, which refers to the plaintiff being estopped from suing the first, second, third and fourth defendants “ who are sued on their own behalf and on behalf of all persons who are full members of the Cobh Golf Club, where the Plaintiff was himself a full member of that club at the material time in question and in the premises, the within proceedings against the First, Second, Third and Fourth Named Defendants, being an unincorporated association, amount to a suit by the Plaintiff against himself…”

29. This plea is unsurprising, given the well-established line of case law that a member of a club cannot sue his or her fellow members. This principle was identified in Murphy v Roche[1987] 5 JIC 1504 at para 17 as follows:

“By reason of the legal identification of the Plaintiff with the Defendants by virtue of their mutual membership of the Club the Plaintiff cannot maintain the present proceedings against the members of their Club or these particular members being the Defendants as trustees”

30. In other words, because a club has no separate legal identity from that of its members, a member suing the club by means of an action against the club’s trustees or committee members as representatives of the members is in law suing herself.

31. In that case, the club was a GAA club – Wolfe Tone Na Sionna – in Shannon, Co. Clare and it was alleged that the plaintiff had suffered injuries at a dance organised by the club following a fall. His action could not be maintained because he was a member of the club. The position was not altered by the fact that he had paid a fee for admission to the dance.

32. That approach was followed in Kirwan v Mackey[1995] 1 JIC 1801, a case involving the accidental shooting of a member of a gun club by another member of the gun club, where Carney J. followed Murphy v Roche and held that the proceedings were not maintainable against the officers, committee and trustees of the club.

33. In Walsh v Butler[1997] IEHC 9, a case heavily relied upon by the plaintiff, the defendant argued that the plaintiff was not entitled to seek recovery on the basis that he was a member of Bandon rugby football club. The plaintiff alleged that he had been injured while playing rugby for the club. The club had no constitution or rules until 1979. In 1979 rules were adopted. Those rules provided members were to be elected and that, as team members, they were required to pay an annual subscription. In the year 1989/90 the plaintiff took over as team captain of the first team. He had paid his subscription in the year 1988/89. There was no evidence that he paid for the year 1989/90. The accident happened in spring 1990.

34. The plaintiff argued that the procedure provided for in the rules for the election of members was never employed in his case and therefore, although everyone concerned regarded him as a member of the club, he was not in the legal sense a member of the club. He further argued that even if he was a member of the club up to 1988/89, since there was no evidence he paid his subscription, at the time he received his injury he was no longer a member of the club as his membership had lapsed in accordance with the rules.

35. The defendants argued that the plaintiff was estopped by his own conduct from making the point he was not a member of the club as he had held himself out to be such a member. It was further argued it was within the capacity of all members of the club to agree to accept a member into the club without the necessity for following the formal procedure provided for by the rules.

36. Morris J. considered whether, by participating in the full activities of the club, the plaintiff acquired membership of the club but concluded that he did not and could not because of the terms of the relevant rule, being rule 9. This clearly stated that all members, including juvenile members, had to be elected by the general committee and this was the only route by which a person could join the club.

37. Further, he noted that even if payment of the plaintiff’s subscription could have been construed as rendering him a member of the club, his failure to pay after that date meant that in accordance with rule 8 his membership lapsed. Accordingly, he concluded that if the plaintiff had ever been a member of the club, he was not a member on the date of the accident.

38. As noted by the plaintiff, the facts in Walsh are remarkably similar to those in the instant case in relation to the question of payment of the subscription.

Was the Plaintiff a Member of the Club on the Date of the Accident?
39. The plaintiff argues that he was not a member of the club by reason of the non-payment of his subscription by 31 January, which triggered an automatic termination of his membership under the club constitution. The defendants argue he was a member and make three alternative arguments in this respect – that the constitution, correctly interpreted, does not require the payment of the subscription by 31 January; that if it does, then that rule was altered by the practice in the club; or if it was not so altered, that the club had waived the requirement for payment by 31 January in the relevant year.

Interpretation of the Constitution
40. The rules of the club consist of a constitution and rules and bye laws. Rule 3.4.2 (a) provides that all categories of members (except for categories not relevant to the plaintiff’s situation) shall be required to pay an annual subscription.

41. Rule 3.4.2 (e) is critical in this case. With original emphasis, it provides;

“Any member whose subscription shall be unpaid on 31st January shall not be entitled to use the facilities of the Club, Their membership shall be deemed to be terminated and their name shall be removed from the list of members of the Club.”

42. The plaintiff argues that the effect of the rule is automatic, and no steps are required to be taken by the defendants to remove a member. Accordingly, he says that he was not a member of the club on the date of the accident.

43. On the other hand, the defendants argue that that the rules of the constitution on subscriptions are inconsistent and that, properly interpreted, the rules do not treat a member as terminated on 31 January if the subscription is not paid up but only identify certain consequences of non-payment that stop short of loss of membership.

44. First, relying on rule 3.4.1 (e), they posit that a member is entitled to pay by instalments. Rule 3.4.1 (e) may be found under rule 3.4, entitled “Subscriptions, Levies and Admissions , and provides as follows:

“Any member who, with the agreement of the Management Committee, is paying both their joining fee and yearly subscription by installments over several years shall be entitled to take part in Club Competitions and to represent the Club in interclub matches. They may attend, vote and stand for election at the Men’s and ladies Clubs Annual General Meetings and Extraordinary General Meetings of those Clubs only.”

45. The defendants note that there is no definition of “subscription” and that rule 3.4.1 (e) may, on one reading, permit payment to be made by instalments and in such case the plaintiff would be compliant with the subscription rules, given his payments in January and April of 2015.

46. That interpretation ignores two salient facts. The reference in 3.4.1 (e) to “paying both their joining fee and yearly subscription fee by instalments over several years” and the qualified rights that attend upon persons availing of this payment scheme, i.e. attending, voting and standing for election at certain types of meetings only, strongly suggest that this provision is intended to cater for the time period while a person is paying off their joining fee and instalments together. If the rule was intended to cater for payment by instalment either for the joining fee and yearly subscription fee, or for the yearly subscription alone, it is hard to see why rights would be qualified in this way. Moreover, the word “both” suggests that the rule is intended to cater for the situation where the joining fee and instalments are simultaneously being paid off. It is true that there is an implication in rule 3.4.1 (e) that it may be permissible to pay by instalment simpliciter, but this is not provided for by rule 3.4.1 (e) and nor is it provided for in any other part of the constitution.

47. Further, to interpret the rule in the way contended for by the defendant would be to ignore rule 3.4.2 (e) discussed below, which makes it clear that membership shall be deemed to be terminated if a member’s subscription is unpaid on 31 January. The terms of that rule are so clear and unambiguous that, even if I interpreted the constitution as permitting payment by instalments, it seems to me that the final payment would require to be made before 31 January. In saying this I am fully conscious that the club year goes from 1 October to 30 September; but in my view the controlling words of rule 3.4.2 (e) would not leave it open to permit a member to pay in instalments after 31 January.

48. Next, the defendants argue there is an inconsistency between rules 3.4.2 (d) and 3.4.2 (e), in that sub rule (d) and parts of sub rule (e) do not suggest that non-payment of subscription by 31 January disentitles a person to membership, identifying instead other, less draconian, consequences of failure to pay.

49. Rule 3.4.2 (d) provides:

“Any member whose subscription shall be unpaid on 31st January shall not be entitled to enter Club Competitions or represent the Club on any team playing inter-club tournaments until such a payment is made.”

50. It is true that sub rule (d) restricts a member from entering club competitions or representing the club on any team playing inter-club tournaments until payment is made, and sub rule (e) restricts a person whose subscription shall be unpaid on 31 January from using the facilities of the club. If sub rule (e) stopped at that point, it would be quite logical to construe the consequences of non-payment by 31 January as being the non-participation on teams or in competitions and the withdrawal of permission to use the facilities. However, sub rule (e) goes on to state quite clearly that membership is deemed to be terminated and as identified above, these words are so unambiguous that they cannot be ignored.

51. In summary, it does not appear to me that there is any ambiguity in sub rule (e) or any inconsistency as between sub rules (d) and (e). The fact that in practice the plaintiff was permitted to enter club competitions and represent the club on teams playing interclub tournaments without having paid his subscription simply means that the club was not applying its own rules. It does not mean that the rules are themselves inconsistent.

52. In fact the rules on subscriptions reflect a coherent approach to membership fees, providing that unless a subscription is fully paid a member may not be entitled to enter competitions or represent the club, that a person with their subscription unpaid on 31 January shall not be entitled to use the facilities of the club, that their membership shall be terminated, and their name removed from the list of members.

53. The defendants have placed considerable reliance upon the dicta of Clarke J. in Dunne, specifically his observation at paragraph 5.5 as follows;

“5.5 … On the other hand, there is authority for the proposition that the rules of a club should not be approached with the same degree of rigour. In In re GKN Bolts & Nuts Ltd Sports and Social Club[1982] 1 W.L.R. 774 at p. 776, Megarry V.-C. observed:

“In such cases, the court usually has to take a broad sword to the problems, and eschew an unduly meticulous examination of the rules and resolutions. I am not, of course, saying that these should be ignored; but usually there is a considerable degree of informality in the conduct of the affairs of such clubs, and I think that the courts have to be ready to allow general concepts of reasonableness, fairness and common sense to be given more than their usual weight when confronted by claims to the contrary which appear to be based on any strict interpretation and rigid application of the letter of the rules. In other words, allowance must be made for some play in the joints.”

54. The first to fourth defendants also rely upon the (dissenting) judgment of Clarke J. in Law Society of Ireland v MIBI[2017] IESC 31 and the following dicta:

“10.4. However, an over dependence on purely textual analysis runs the risk of ignoring the fact that almost all text requires some degree of context for its proper interpretation. Phrases or terminology rarely exist in the abstract. Rather the understanding which reasonable and informed persons would give to any text will be informed by the context in which the document concerned has come into existence.”.

55. As identified above, the wording here is crystal clear in that, if membership fees are not paid by 31 January, the subscription of a member is deemed to be terminated. The observations of Megarry V.C. are simply not applicable here. The defendants are not asking that the rule be construed in one of two or more alternative ways potentially available. Rather they are asking that I ignore the clear wording of the sub rule and construe it so that the consequence of non-payment by 31 January is not exclusion but limitation of membership privileges. Given the clarity of sub rule (e), that in my view is not an interpretation open to me irrespective of what approach to construction I take, whether narrow or liberal. Giving the words of sub rule (e) their natural and ordinary meaning cannot be characterised as a “literal” construction, as suggested by the defendants in their written submissions. It is simply acknowledging the unambiguous way in which the rule is drafted. Thus, even eschewing an unduly meticulous examination of the rules, allowing for “ play in the joints ”, adopting a liberal interpretation, taking into account the context of the constitution, and avoiding an over dependence on purely textual analysis, it seems to me that only way to interpret the sub rule in the manner contended for by the defendants is to do what Megarry VC concedes is impermissible, i.e. to ignore the clear wording of sub rule (e).

56. The defendants note that if the rules do not provide for the payment of a subscription by instalments and a literal construction of sub rule (e) is applied, then the plaintiff’s membership was terminated on 31 January of each year on which he was a member. This may well be the case (although this case does not require me to decide upon any year but 2014/2015), but that argument cannot be used to alter the correct construction of the constitution. A similar argument did not find favour with Morris J. in Walsh v. Butler.

57. Accordingly, I conclude there is no interpretation of sub rule (e) that would permit the defendants to treat the plaintiff as a member, despite the clear breach of the rules by him in relation to his failure to pay his subscription.

58. Finally, rule 3.4.2 (f) provides that:

“Membership may be reinstated at the discretion of the Management Committee on payment of the current Annual Subscription plus a re-entry fine and any appropriate levies as may be set by the Management Committee.”

59. Contrary to what is asserted by the defendants, there is nothing inconsistent in that rule with sub rule (e). Nor was any evidence whatsoever given as to reinstatement of the plaintiff’s membership. The fact that he made another payment in April of €150 – significantly below the annual subscription rate of €890 – cannot be treated as an exercise by the club of its entitlement under 3.4.2 (f), in circumstances where there was no evidence at all that this payment was an exercise of the powers of the club under the relevant rule.

60. In conclusion, I find that the rules of the constitution provided for the plaintiff’s exclusion on non-payment of his annual subscription, and that he was so excluded due to his failure to pay the subscription in full by 31 January.

Practice of the Club
61. The second argument mounted by the defendants was that the practice of the club was always to treat the plaintiff as a full member with all the privileges of membership, including representing the club in inter-club tournaments and playing in internal club competitions, and that the plaintiff regarded himself as a full member as of 5 June 2015. I have set out above the evidence of Mr. McKee, who identified that the requirements of the constitution in relation to the payment of the subscription by 31 January, were widely ignored by the club.

62. The import of this argument must be that sub rule (e) had been implicitly amended by the practice of the club, such that the sub rule was no longer effective. To address this argument, it is necessary to consider the role of the rules of a club. Because of the lack of legal personality of unincorporated associations, the rules of such bodies are particularly important. They are a contractual agreement between the members as to how they have agreed to run the club. Describing the nature of a club, Clarke J. in Dunne observed:

“5.1 It is clear that the principal legal basis for the existence of a club is a contract between all of the members for the time being (see Walsh v Butler[1997] 2 I.L.R.M. 81; Conservative and Unionist Central Office v Burrell[1982] 1 W.L.R. 522). As an unincorporated association of individuals, a club has no separate legal personality (Sandymount and Merrion Residents Association v An Bord Pleanala & ors[2013] IESC 51; Feeney v. McManus[1937] I.R. 23). However, that is not to say that a club does not have some form of legal existence. So long as the contract between its members stays in being, then it can reasonably be said that a club continues to exist.”

63. The decision in Dunne goes on to make it clear that because the rules of the club constitute a contract between the members they cannot be amended by implication. In that case Hogan J., in the High Court, had held that the club rules could be treated as having an implied term in relation to the termination of the club, though the members had not expressly agreed to vary the rules. That decision was overturned by the Supreme Court, with Clarke J. observing as follows;

“6.3 The starting point of any analysis has to be that, prima facie, the rules, representing as they do a contract between all of the members, cannot be altered except by agreement of all those members or in accordance with a specific provision in the rules allowing for such amendment. That is the position which applies in respect of any ordinary contract. A multi-party commercial arrangement cannot be altered without the agreement of all parties affected. The fact that it might make sense that a majority (or perhaps a large majority) could change the contract does not mean that such is legally possible unless the parties have agreed to an amendment mechanism. When people join a club they are committing both their efforts (whether great or small) and their resources (whether great or small) to the club on the basis of the rules as they then exist. They are entitled to have those rules applied and not to have the rules changed without their agreement (or in accordance with an amendment procedure which is to be found in the rules and to which they must be taken to have signed up by joining a club with such an amendment procedure).

6.4 Even if it might be taken to be prudent for any club to have an amendment procedure, it does not seem to me to follow that a court should imply one if it is not to be found in the rules. In the context of established errors in contracts, it is clear that a court can, in accordance with the “text in context” method of interpretation, properly interpret a contract in a way which acknowledges an obvious error but only where it is equally obvious as to what should have been in the contract concerned had the relevant error not taken place (Moorview Developments & ors v. First Active plc & ors[2010] IEHC 275 )”.

64. In substance, I am being asked to ignore the rules because the club ignored its own rules. But there is no evidence whatsoever in this case that the members had agreed to ignore the club rules enshrined in the club constitution in relation to subscriptions and had decided instead to replace it with whatever the current practice on subscriptions was from time to time. Nor has any authority been cited to suggest that a club is entitled to ignore its own rules in the absence of a decision by the members to take such a step. Such an approach would be contrary to the disavowal in Dunne of any principle of implicit amendment of club rules.

65. Further, it is worth observing that any such approach would have serious consequences for the club. To accept this argument would mean that the way of ascertaining the rules on subscriptions in the club would be to identify current practice. Current practice may vary from member to member, from year to year, and from committee to committee. There would be an entire lack of certainty as to the rules of the club in relation to subscription payments and members would be left in a position of complete uncertainty as to their rights and obligations in this regard. It would also undermine the club’s ability to enforce its extant rules on subscriptions, thus preventing it from restricting non-paying members from playing in competitions, from using the facilities of the club, and from excluding them for non-payment. This would clearly be a highly unsatisfactory situation for the club.

66. A similar approach had been adopted by Morris J. some 15 years earlier in Walsh v Butler, where, in rejecting an argument that the plaintiff should be treated as having been admitted into membership although the procedure set out in the rules providing for election of members had not been followed, he observed:

“24. To hold otherwise would give rise to a situation where the Committee of the Club would have lost all control over affairs of the Club. Members could be assumed into the Club and shed from the Club without the knowledge of the General Committee. The contractual relationship as between members regulated by their acceptance of the General Committee as the regulating authority would be varied without their approval and consent.”.

67. In the premises, I cannot accept that the defendants altered sub rule (e) by conduct.

Waiver
68. Very late in the day, an argument was included in the written legal submissions to the effect that the defendants had waived reliance upon sub rule (e). There are various problems with this argument, the most obvious being that waiver was not pleaded and that no evidence whatsoever was adduced indicating a waiver of sub rule (e) by the defendants. Mr. McKee, the only witness called on behalf of the first to fourth defendants, never referred to a decision by the club to waive its membership rules, either generally or in respect of sub rule (e). There was no evidence of any communication by the club in respect of waiver to the plaintiff. There was no evidence of any awareness by the plaintiff that the constitution contained a rule that excluded him as a member because of non-payment by 31 January or any knowledge that the rule was being waived.

69. The dearth of evidence on the point cannot in my view be overcome by a wholly theoretical reference to same in written submissions delivered some days after the hearing. At a minimum, even if the defendants were to circumvent the pleading point, they would have to show that they were aware of the rule, that they had chosen not to rely upon it, and that they had communicated this to the plaintiff, whether implicitly or explicitly. None of those facts can be assumed in the absence of evidence.

70. Accordingly, I conclude the defendants cannot raise an argument based on waiver.

Implicit Compensation Rule in Membership
71. The plaintiff had pleaded in the alternative to the effect that, even if he was a member, there was a rule implicit in membership that he was entitled to be compensated for injuries or loss suffered. However, that argument does not appear to be pursued with any vigour as no evidence was led in this respect and no legal submissions on this point were made. Because of my conclusion that the plaintiff was in fact not a member of the club at the time of the accident, there is no necessity for me to address this point.

Vicarious Liability
72. It is, I think, fair to say that the defence upon which the defendants placed greatest reliance was that of the club membership of the plaintiff. However, having circumvented that hurdle, the plaintiff must still establish that the club members, as represented by the first to fourth defendants, were negligent, whether directly or through the doctrine of vicarious liability.

73. I am satisfied the plaintiff has established negligence. The first to fourth defendants did not ensure a safe system of work was in place. Nigel Britton must have known the work involved cladding the pro shop and therefore would require the sawing of planks on site, and the fitting of same to the walls and the roof. No action was taken at all by the defendants to ensure the site was a safe place to work. This was particularly important given that it is accepted by all that Mr. Britton had requested the plaintiff to go onto the site and assist with the work. The plaintiff was not a carpenter or a tradesman of any sort. He had no specialist skill or expertise. He was entitled to be protected by the person who requested his assistance for the week. The fact that the plaintiff and indeed the fifth defendant were not being paid for their work does not alter the members’ obligations in this regard.

74. Having heard the evidence not only of the plaintiff’s engineer but also that of the fifth defendant’s engineer, I conclude there was no safe system of working on the site in respect of the work being carried out by the plaintiff and fifth defendant. Planks of wood were being sawn without being secured by way of a vice grip or bench. The plank was perched upon a milk crate and was not secured. The plaintiff’s engineer gave evidence that the only circumstances in which the plank did not need to be secured was where the person holding the plank was some very significant distance from the point at which it was being cut. The necessity for securing a plank arises from the use of a circular saw, which is a powerful piece of machinery that can jam if it catches the wood in a particular way. There is a safety catch that is designed to prevent the otherwise inevitable consequences of it catching in this way but for whatever reason, the safety barrier did not operate so as to protect the plaintiff.

75. Had there been a site supervisor, a different system of work would have been put in place that would have protected the plaintiff. Most obviously, the plaintiff would not have been permitted to go on the site as an assistant since he does not possess a safe pass. Indeed, it is accepted by the first to fourth defendants that they were responsible for the organisation of the works and that the standards applied to the organisation and execution of the work fell below the required standards. That seems an appropriate concession to me given the engineering evidence. The consequences of this failure to ensure safety on the site were disastrous for the plaintiff.

76. In relation to the fifth defendant, the club initially took the approach that they were not liable for the acts of the fifth defendant. However, that is no longer the position of the club in circumstances where it is accepted that, had the club discharged its obligations correctly and retained a site supervisor, the plaintiff would not have been on the site given his lack of qualifications and lack of a safe pass. The revised position of the club may reflect a recognition of the fact that the fifth defendant was giving of his time freely as a member of the club and that in the circumstances, his actions should be treated as those of the club.

77. In the circumstances, despite the undoubted negligence of the fifth defendant in the way he organised the work and the directions he provided to the plaintiff, I will treat his actions as those of the club and therefore as being the responsibility of the first to fourth defendants.

Quantum
78. Having concluded that the defendants are liable to the plaintiff in negligence, I must now turn to the question of quantum. The plaintiff’s evidence was that he spent one night in hospital after being brought there by helicopter and that he was operated upon over a lengthy period of time. His left index finger was amputated, and a small stump was left intentionally. However, due to the very significant pain that he suffered over the subsequent months, it was decided that a second operation was necessary to remove a portion of a nerve ending in the stump of his left finger. Unfortunately, that was not successful in relieving the very intense pain he suffered at times and so a third operation was carried out in 2017 and the stump that had been intentionally left was removed.

79. I have seen the plaintiff’s hand and a very neat job was done, but it is readily apparent that he has been left without any part of his left index finger. The plaintiff has suffered excruciating pain which has now happily lessened with the passage of time, but he still requires significant pain relief. For example, when he tries to play golf which he described as being a passion for him, he finds that his hand becomes very painful and he is obliged to stop.

80. On 25 July 2016 Dr. Jason Kelly, the consultant plastic and reconstructive surgeon treating the plaintiff provided a report on the initial injury. He details that the plaintiff’s finger was attached solely by a piece of volar skin and there were no clinical signs of blood flow through the finger, and that his adjacent finger suffered a division of a tendon. A replantation was immediately attempted under a general anaesthetic but due to the nature of the injury, a replantation would have allowed only for a shortened finger with a single joint. In those circumstances it was decided that given the lack of function and the aesthetic concerns involved in a replantation, an amputation was appropriate. The amputation was carried out, a stump was created, and a tendon repair carried out on the adjacent finger.

81. Dr. Kelly reports that post-surgery, the plaintiff had difficulty with his pain management and his medications included those affecting the central nervous system, non-steroidal anti-inflammatories and a morphine-based analgesia. He underwent a further surgery on 23 February 2016 to remove a piece of nerve tissue and this brought temporary pain relief.

82. On 11 February 2019 Dr. Kelly provided a follow-up report. He details that four years post-injury the plaintiff had undergone two further surgeries on 23 February 2016 and in 2017 and was suffering from an obvious cosmetic deformity and constant pain. The plaintiff struggled to lift heavy or awkward objects at work due to his missing finger, the loss of strength and the pain involved. The plaintiff continued to suffer intermittent pain that was at times disabling, his pain medications included both a morphine-based analgesia, Tylex, and one affecting the central nervous system, Lyrica. Dr. Kelly states that the plaintiff complained of stiffness across the knuckles of the hand and a loss of dexterity, he further complained that he had to stop playing golf due to his inability to play at his previous level.

83. Psychologically, the plaintiff has suffered very significantly. He has reported that his sleep has been interrupted as a result of the pain and that he has flashbacks of the accident where he recalls running around with his finger gone. He has suffered depression as a result of the loss of his finger and in particular his inability to play golf at the level and with the consistency with which he once played it. It is true that in cross examination it became clear that he has competed on a very limited basis since the accident and is playing off a handicap of 4. However, it is far from the level at which the plaintiff previously played. He has engaged with his local mental health services and he has also obtained significant assistance from his GP.

84. A report of 8 June 2021 was provided by Dr. Patrick Kirwan, a consultant psychiatrist treating the plaintiff. Dr. Kirwan states that the plaintiff has a diagnosis of post-traumatic stress disorder stemming from his injury. The plaintiff was discharged from psychological treatment in December 2019 following a period of treatment commencing in October 2018. However, Dr. Kirwan reports that the plaintiff suffered a relapse in his anxiety symptoms following an external examination associated with these proceedings. He underwent booster sessions with the psychology department and his return to work helped improve his symptoms somewhat, but residual symptoms remained.

85. In order to resolve this, his GP changed his antidepressant medication. The dose of this antidepressant was increased following an outpatient appointment in February 2021. Dr. Kirwan states that at his most recent review on 8 June 2021, the plaintiff reported a low mood and high anxiety levels. At that review the plaintiff recounted that he had been doing reasonably well until another examination in relation to these proceedings exacerbated his symptoms. Dr. Kirwan concluded that the patient appeared to be in an objectively low mood and his treatment plan was to further increase the antidepressant and to start a second medication to treat his anxiety symptoms in the short term.

Conclusion on Quantum
86. I consider the following factors are relevant to my conclusions on quantum (being factors that have both affected the plaintiff in the past and will continue to do so into the future);

– the fact that he has been left without any part of his left index finger;
– the fact that the finger in question is the index finger, being the most dominant finger;
– the fact that he required two additional operations spaced over two years as well as the initial operation which took some significant amount of time and was complex in nature;
– the psychological toll that the injury took upon him, in particular the anxiety and depression that ensued after the accident and the enduring nature of both of these conditions which have been alleviated but not eliminated by medication, psychiatric assistance and counselling and which it appears from the evidence will remain into the future;
– the fact that the plaintiff was a particularly skilled and committed golfer who was devastated by the loss of his former ability following the accident. I accept the evidence of the defendant elicited under cross examination that the plaintiff has to a certain extent returned to golf and has in fact managed to compete in a competition. However, having heard the totality of the plaintiff’s evidence, I am persuaded that his ability to participate in the sport of golf has been greatly diminished and that this has a very negative effect on his well-being, including his psychological well-being.
87. The plaintiff must be compensated by way of general damages for his pain and suffering to date and into the future. Insofar as pain and suffering is concerned, he should be compensated for the loss of the left index finger and the physical consequences of it, including the necessary surgeries, and for the very significant pain he has suffered over a significant time period, together with the psychological injuries that were caused by the foregoing.

88. In all the circumstances I estimate that the appropriate sum to compensate the plaintiff by way of general damages for his pain and suffering to date and into the future is the sum of €100,000.

89. In this case, because of the excellent support that his employer, the Navy, provided to him, he has not suffered any loss of earnings and he has not incurred significant costs for counselling since that has been provided free of charge by the Navy. Therefore, the sum of special damages is only €1,495 and I will add that onto the award making a total of €101,495.

O’Sullivan v Brozda & ors

[2020] IEHC 129 (12 March 2020)
UJUDGMENT of Mr. Justice Barr delivered on the 12th day of March, 2020Introduction1. This action arises out of a road traffic accident (RTA) which occurred on 27th August,2016, near Hazelwood Shopping Centre, Glanmire, Co. Cork. The plaintiff was a frontseat passenger in a motor car owned by the second defendant, which was being driven byher boyfriend, the third named defendant, at the time. A vehicle owned and driven bythe first named defendant collided into the rear of the vehicle in which the plaintiff wastravelling. While liability was initially contested between the defendants, that had beenresolved prior to the hearing of this action, in circumstances where the first nameddefendant accepted liability for the accident. Accordingly, the action proceeded as one forassessment of damages only.2. The plaintiff is currently 31 years of age, having been born on 11th November, 1988. Shewas 27 years old at the time of the accident. She was employed in the HR department ofa major bank based in Dublin. She was a bad candidate for involvement in an RTA, asshe had had serious surgery to her neck and skull some weeks prior to the accident on1st June, 2016. She was recuperating from that surgery at the time of the accident.3. At the trial, the defendant strongly relied on the proposition that this was a “low impact”collision. They relied heavily on two matters in this regard, being firstly, photographs ofeach of the vehicles after the accident, which did not show any major structural damageto either vehicle, and secondly, the fact that the repairs to the vehicle in which theplaintiff had been travelling amounted to only €249.70. The plaintiff did not accept that itwas a very minor impact She stated that there was a loud bang, her vehicle was shuntedforward, her head was propelled forwards and then backwards striking the headrest andher right knee struck the dashboard, causing an injury to her knee. Accordingly, shedisputed the defendant’s assertion that the impact was very minor.4. The plaintiff’s case is that her neck was in an extremely vulnerable condition, havingregard to the fact that she had undergone extensive surgery involving the back of herneck and the base of her skull some 11 weeks earlier. For that reason, the trauma to thesoft tissues of her neck and shoulders was considerably worse than would otherwise havebeen the case, had she been in a healthy state at the time of the accident. It is theplaintiff’s case that she has suffered a severe soft tissue injury to her neck, to hershoulders and to her lower back as a result of the accident. There was also an injury toher right knee. In addition, while she had been suffering from headaches for someconsiderable time prior to the accident, these were considerably exacerbated by theaccident and she continues to experience severe headaches to the present time.Page 2 ⇓5. In an effort to alleviate these symptoms, the plaintiff has undergone extensive treatmentfrom a pain specialist. She has had sixteen interventions from him to date on eightoccasions, together with three courses of Botox injections and an injection offremanezumab administered by a neurologist. In addition, she has had extensivephysiotherapy and acupuncture treatment. She has also experienced psychiatricdifficulties in the form of depression and PTSD, for which she has been prescribedantidepressant medication. She has had cognitive behavioural therapy and somecounselling. Notwithstanding all the treatment received to date, the plaintiff has beenunable to work since January 2016, which was prior to the accident. It is envisaged thatshe will only be able to return to work on a phased basis over the next two years.6. In a nutshell, the defendant does not accept that the plaintiff has been injured to theextent which she claims, as a result of the RTA. While it is accepted that the plaintiff wasa bad candidate for such an accident, due to the fact that she was in the post-operativerehabilitation phase, the defendant does not accept that there was any seriousexacerbation of her post-operative condition as a result of the minor impact between thevehicles.7. Broadly speaking, the defendant’s medical witnesses accepted that she suffers pain atpresent and was not malingering in the usual sense of that term; however, they maintainthat her case is unsustainable for a number of reasons. Firstly, even allowing for theweakened state of her neck muscles and ligaments due to the surgery, the impact of theRTA on those soft tissues was minor and as such would only have led to a minorexacerbation of her symptoms, lasting for a number of months at most. Secondly, theplaintiff’s continuing complaints cannot be accounted for by such a small RTA, due to thefact that according to the defendant’s medical witnesses she has a full range ofmovement of her neck, shoulders and lower back; there are no neurological signs ofinjury and all her imaging and scans have been largely clear; all of which indicates thatthere was no major structural injury as a result of the accident.8. Thirdly, the defendant’s experts maintain that the plaintiff is somewhat hysterical innature, or is prone to catastrophizing the extent of her injury and disablement, as shownby her behaviour prior to the time of the accident and as demonstrated by certain testscarried out by the defendant’s physiotherapist, which indicated that she was prone tocatastrophizing and also that she tended to subjectively overestimate her level ofdisability, when on observation, she had a greater range of movement than her ownsubjective evaluation thereof. Fourthly, the defendant’s experts state that insofar as theplaintiff continues to experience pain, that pain is not due to any physical injuriessustained in the accident, but at this stage over three years post-accident, is more likelyto be due to psychological factors. Fifthly, the defendant’s experts are of the view thatgiven the psychological cause of her pain, further pain intervention is not necessary andshe would be better served by returning to ordinary activities and in particular returningto work. They are of the view that there was no reason why she could not have returnedto work before now.Page 3 ⇓9. The foregoing is merely a brief overview of the positions taken by each of the parties.This is an unusual case in that the plaintiff was under medical supervision in the monthsand weeks prior to the accident. In particular, she was under the care of Ms. RachelOrmond, chartered physiotherapist, who had been instructed to advise the plaintiff on ahome exercise programme as part of her post-operative rehabilitation. The Court wasgreatly assisted by the evidence given by Ms. Ormond in relation to the plaintiff’s pre-accident and post-accident condition.10. This case raises important and difficult questions in relation to the nature of chronic painand whether a defendant, who was liable for an RTA which caused exacerbation of pain inthe acute stage, can be held liable for chronic pain which ensued in the years thereafter.11. Save for one aspect, the plaintiff’s claim for special damages was largely uncontroversialin terms of quantum. However, the defendant disputed her liability to pay such items andin particular denied that she was liable for the loss of earnings aspect of the plaintiff’sclaim.12. Finally, the Court had to consider an application pursuant to s. 26 of the Civil Liability &Courts Act 2004, whereby it was alleged that the plaintiff had fraudulently sworn anaffidavit of verification in respect of her loss of earnings claim, when she knew that it wasfalse and misleading in a material respect.Background13. Having regard to the very considerable dispute between the parties in relation to theplaintiff’s post-accident injuries and disablement, it is necessary to look at the plaintiff’spre-accident condition in some detail.14. The plaintiff suffered with migraine in her early teenage years. However, this did notappear to be either frequent or severe. Circa 2008, she was involved in an RTA when shewas a rear seat passenger in a car, which was being driven by her brother. The car wasrear-ended. The plaintiff sustained a soft tissue injury to her lower back. She hadsymptoms for a number of months. Her legal action was settled at the PIAB stage.15. The plaintiff qualified with a first class honours degree in commerce from UCC in 2011.She obtained a first class honours masters degree in food marketing the following year.After college she worked with a company called EMC for two years. She was initiallyrecruited as a HR coordinator and was promoted after eight months. Her new roleinvolved training existing employees and also new employees coming into the company.She was also involved in setting up new contracts of employment for those entering thecompany. The plaintiff then took up a HR generalist position with the Peter McVerry Trustin Dublin. In this role she was involved in setting up the Sage IT system for thecompany.16. In January 2015 she saw a job vacancy in the HR department with KBC Bank. Sheobtained the position and commenced working with them in January 2015. She did wellin the job and in August 2015 she was promoted to HR team leader, a role in which shePage 4 ⇓was supervisor over three/four people. Her position was at assistant manager level withinthe bank.17. In November 2015, while the plaintiff was retrieving post from her post box, onstraightening up she struck her head against an electricity box, which was located abovethe post boxes. This caused a small graze to her head. The plaintiff stated that she didnot take much notice of it at the time. That weekend she went to Galway with friends.She developed a headache in the days after that incident. Her headaches persisted. Theplaintiff went to her GP, who initially diagnosed a sinus infection and prescribed somemedication. She returned to her GP one week later when the headaches did not subside.At this stage the GP prescribed antibiotics. The plaintiff stated that she went home toCork for Christmas 2015. Her headaches persisted over the holiday period. In January2016, she returned to her GP in relation to the continuing headaches. Her doctor advisedthat she should go out of work as she may be suffering from post-concussion syndrome.The plaintiff stopped working in January 2016. The GP arranged for an MRI scan to becarried out.18. The MRI scan revealed a pineal cyst. On account of this, the GP referred the plaintiff toMr. Chris Lim, consultant neurosurgeon. On reviewing the scan, he was satisfied that thecyst was not greatly significant, although it needed to be monitored. However, heobserved that the plaintiff had a Chiari malformation (grade 1) at the base of her skull.That was a malformation of her brain, whereby a portion of the brain grew downwardsfrom the base of the skull into the area of the spinal cord at the top of C.1 vertebra. Mr.Lim had a further MRI scan carried out. He was satisfied that the cause of the plaintiff’songoing headaches was the Chiari malformation. After considering her options, a decisionwas made that the plaintiff would undergo surgical treatment by way of a foramenmagnum decompression, which was carried out on 1st June, 2016.19. Mr. Lim described this operation in his evidence. It involved making a wider opening atthe junction between the base of the skull and the top of the C.1 vertebra. In order to dothat, he had to make an incision from the back of the skull down to approximately themiddle of the neck. He then had to cut through the tendons and muscles surrounding theupper vertebrae in the neck. These had to be dissected and removed from the bones ofthe skull and the spine. Mr. Lim stated that they are a strong muscle group. When thathad been done, he then removed a portion of the posterior part of the bone of thecervical spine and part of the foramen magnum in the occipital bone, measuringapproximately 4 – 5cm x 3cm. The purpose of the operation was to widen the channel soas to enlarge the area and allow spinal fluid to flow freely without being impeded by thetonsil of brain which had grown downwards. The operation also involved opening theouter covering of the brain known as the “dura”, to enhance enlargement of the area.The dura is a thick structure, which was cut with a scalpel for approximately 2 – 3cm.This made a larger opening and enhanced circulation.20. The next step was to begin the closing-up stage by closing the various layers of muscles.This was done by means of soluble sutures, 30 in all. Finally, the outer layers of the skinPage 5 ⇓were closed. Mr. Lim stated that the operation itself went well and lasted for between 2 –3 hours. In the immediate post-operative period, one would expect a patient toexperience nausea and considerable pain. This could last for a number of weeks.Thereafter, the pain would ease and they could begin gentle mobilisation. Manualphysiotherapy would not normally begin until three months post-surgery. It wasanticipated that in the ordinary course, the plaintiff would not have returned to work untilthe end of 2016.21. The plaintiff was seen by Mr. Lim for a review at six weeks post-surgery on 14th July,2016. At that time, she told him that she had been very miserable for the first five weeksafter the operation. However, she stated that she had made considerable improvement inthe week prior to seeing him. That was the normal post-operative course. He stated thatthe plaintiff was quite good when he saw her at that examination. The next step in herrehab was to commence anti-inflammatory medication and begin gentle, non-manualphysiotherapy. Mr. Lim stated that he next saw the plaintiff some two weeks later at theend of July 2016, when she called into his rooms to hand in a scan. She had improvedfurther by that time.22. The plaintiff was first seen by Ms. Rachel Ormond, chartered physiotherapist, on 29thJuly, 2016. In a letter to Mr. Lim dated 8th August, 2016, Ms. Ormond gave the followingaccount of the plaintiff’s presentation at that examination:“On objective examination on 29/07/2016 Joanne presented with poor posture withher head tilted in a slightly lateral orientation to the right. Active range ofmovement of the cervical spine was grossly restricted as one would expect withranges as follows: Flexion 60%, extension 30%, rotation 70% bilaterally, lateralflexion 50% bilaterally. Her surgical scars were noted to be healing. Shepresented with significant weakness of the posterior cervical stabilising muscles,worse on the right side. She has been shown exercises to improve the stability ofthe posterior cervical, sub-occipital and deep neck flexor musculature in addition tostrengthening exercises for the peri-scapular muscles. She has not received anymanual therapy. I would appreciate if you could give guidance as to when manualtherapy may be permitted to commence at your kind convenience.”23. At the first consultation, Ms. Ormond gave the plaintiff a programme of home exercises tohelp strengthen her neck muscles. She next saw the plaintiff for a quick review on 5thAugust, 2016, at which time the plaintiff reported that she had improved further and wasmanaging her exercise programme.24. Ms. Ormond saw the plaintiff again on 22nd August, 2016, which was five days before theaccident. On objective examination at that time it was noted that she had recovered asignificant degree of cervical movement, which was recorded as follows: flexion 80%,extension 50%, right rotation 85%, left rotation 85%, right lateral flexion 50%, leftlateral flexion 50%. Ms. Ormond was satisfied that these findings demonstrated that theplaintiff had begun to make significant progress with her post-surgical rehabilitation.Page 6 ⇓25. In evidence, the plaintiff stated that by 22nd August, 2016, she had made considerableimprovement. She had recovered a significant degree of neck movement. Her headacheswere reducing and her neck pain had dramatically reduced. She had been able to go outwith friends and had gone to a show and had met up with a manager from work and otherfriends. She felt that she was on the road to getting back to normal. Mr. Lim had toldher that by December 2016 she would be able to return to work.The Accident on 27th August, 201626. The plaintiff stated that she and her boyfriend were travelling in his mother’s car. Herboyfriend was driving and she was sitting in the front passenger seat. They were on theirway to his nephew’s birthday party. They were stopped at a junction at a “stop” sign,when she suddenly felt the car go forward and there was a loud bang, then the carstopped. The plaintiff stated that her head went forward and then back and hit theheadrest. She felt immediate pain in her neck and head, and between her shoulders.She was able to get out of the car unaided. She was very worried about how this mightimpact on her recovery. She was crying and was upset about her recovery from herprevious surgery. She also experienced pain in her right knee, which had struck thedashboard.27. The Gardaí were called and came to the scene, as did an ambulance. However, sherefused to go in the ambulance. Instead, they proceeded on to the nephew’s birthdayparty. However, they only stayed there for about 20 minutes. By then the pain in herhead, back and neck had increased, so they went to the A&E Department in the MercyHospital, Cork. They took x-rays, which were clear for bony injuries. Analgesics wereprescribed and the plaintiff was discharged.28. Neither the plaintiff’s boyfriend, nor the first defendant, gave evidence at the trial of theaction. The only other evidence in relation to the severity of the impact between thevehicles, were the photographs of the two vehicles which were handed into court inevidence. They showed very minor damage to the rear of the vehicle in which theplaintiff was travelling, which was a 2013 Ford Focus. The Court was also furnished withphotographs of the front of the first defendant’s vehicle, being a 2002 Peugeot 205.There appeared to be minor denting to the front number plate, although it was hard toknow whether that had been done in the accident, or may have been of long standing.The only other evidence was the repair bill for the vehicle in which the plaintiff had beentravelling, in the sum of €249.70.29. No engineering evidence was called by either party.Evidence On Behalf Of The Plaintiff In Relation To Her Injuries30. The plaintiff stated that in the days following the accident she was in considerable pain.There was a lot of pain in her neck and back. She had been prescribed diazepam by theA&E Department, which she had taken, but she was still in a lot of pain in her neck, backand in her right knee. She also had a lot of pain in her lower back. The pain extended upher whole spine. Her headaches were also more severe than they had been prior to theaccident and were constant in nature. She also felt dizzy and nauseous.Page 7 ⇓31. On 31st August, 2016, the plaintiff attended the physiotherapy practice and was seen byMs. Ormond’s partner, Ms. Long. She recorded that the plaintiff’s posture was markedlyantalgic, with pseudo-winging of the left scapula and marked elevation of the rightshoulder girdle. There was complete reversal of the normal lumbar lordosis, with para-spinal muscle spasm noted bilaterally in the thoracolumbar region. The range ofmovement of her neck was assessed as follows: flexion 50%, extension 10%, rightrotation 60%, left rotation 60%, right lateral flexion 50%, left lateral flexion 50%. Ms.Long also noted the active range of movement in the plaintiff’s thoracic spine as follows:flexion normal, extension nil, right rotation 60% with pain, stiffness and spasm, leftrotation 60% with pain, stiffness and spasm. Movement of the shoulder joints was withinnormal limits, though pain was reproduced over the scapulae at end of range of internalrotation bilaterally.32. Ms. Long noted that tenderness was reproduced and hypo-mobility was detected onpassive mobilisation of the facet joints of the thoracic vertebrae between T.1 – T.10 at theintervertebral and facet joints bilaterally. The cervical facet and intervertebral joints werenot assessed via passive mobilisation on that date due to her previous surgery. Triggerpoints of tenderness and muscle spasm were detected in the upper and middle fibres ofthe trapezius rhomboid, erector spinae scalenei and sub-occipital muscles bilaterally.Reflexes in the upper limbs were noted to be intact and brisk bilaterally, with normalpower detected on assessment of myotomes.33. Range of movement of the lumbar spine was recorded as follows: flexion 50%, extensionnil, right lateral flexion 75%, left lateral flexion 75%, both of which were limited by painand spasm. Tenderness was reproduced and hypo-mobility was detected on passivemobilisation of the facet joints of the lumbar vertebrae bilaterally. Increased resistancewas noted on passive mobilisation of the L.4 and L.5 segments in particular, which wassuggestive of discal involvement at these levels.34. Ms. Long noted that trigger points of tenderness and significant spasm was detected inthe lumbar para-spinal and gluteal musculature. Neurological examination was normal,with myotomes and reflexes noted to be intact and symmetrical in the lower limbs.35. Ms. Ormond stated that of note here was the diminution in the range of movement of thecervical spine, together with the addition of limited movement in the thoracic spine andthe onset of severe limitation of movement in the lumbar spine. There was also loss oflumbar lordosis, which she thought was probably due to muscle spasm. The lordosis wascompletely reversed, which was indicative of muscle spasm in the area. The plaintiff hadalso reported a significant deterioration in both the severity and duration of herheadaches since the accident. Overall, Ms. Ormond stated that this represented asignificant deterioration in her condition since she had been last seen, some five daysbefore the accident.36. Ms. Ormond stated that there was then a small gap between that time and when she nextsaw the plaintiff, which was due to the fact that the plaintiff had been called back by thehospital for a further CT scan, due to a suspected fracture of one of the thoracicPage 8 ⇓vertebrae. However, that was out ruled on subsequent scanning. The plaintiff re-attended with Ms. Ormond on 9th September, 2016. At that time, she continued tocomplain of severe headaches, neck pain, shoulder pain and back pain. In addition, shecomplained of pain in her right knee, which the plaintiff stated had struck against thedashboard of the car at the time of the impact. At that time Ms. Ormond made a workingdiagnosis of cervico-thoracic and lumbr hypo-mobility with findings implicating neuralirritation at the L.4 and L.5 levels consistent with whiplash associated disorder based onthe objective assessment findings. In relation to the plaintiff’s right knee, a workingdiagnosis of patellar tendinopathy and medial compartment strain was made, though thepossibility of periostheal trauma to the femoral condyle was suspected. The workingdiagnosis of tendinopathy was confirmed on MRI carried out on 25th October, 2016. Dueto the intervening road traffic accident on 27th August, 2016, manual therapy, which hadbeen due to commence in early September 2016, was not proceeded with. Instead, dueto the deterioration in the plaintiff’s condition, Ms. Ormond referred her back to Mr. Lim.37. The plaintiff was seen by Mr. Lim on 13th October, 2016. By that time, she had beenprescribed antidepressant medication due to low mood, which she said was caused by thedeterioration in her condition. She had had four sessions of counselling. She told Mr. Limthat she had suffered an increase in her headaches and considerable pain on the rightside of her spine. She said that he told her that the RTA had compromised her recoveryand therefore they would have to review the date on which she might return to work.38. In evidence, Mr. Lim stated that when he saw the plaintiff on 13th October, 2016, shehad significant neck and shoulder pain with associated headaches. He was of the viewthat while she had been making a good recovery from her surgery on 1st June, 2016, theRTA on 27th August, 2016, had increased her neck and shoulder pain and headaches.Unfortunately, due to the operation, she had been in a vulnerable state when she had hadthe accident. The injury was a soft tissue injury to the area that had been compromiseddue to the surgery. It was an area that was particularly vulnerable to trauma. He was ofthe view that the complaints which she had at that time were caused by the RTA.39. Mr. Lim decided that the best course was to refer the plaintiff to a pain specialist. On13th October, 2016, he referred the plaintiff to Dr. Donal Harney, consultant in painmedicine at Mercy University Hospital, Cork. His referral letter was in the followingterms:“Could you kindly see this pleasant 27-year-old lady in your rooms. She underwenta posterior fossa decompression for a symptomatic Chiari 1 malformation back inJune 2016. Unfortunately, she was involved in a car crash in August which hascompounded her recovery. She seems to have suffered a whiplash injury and shehas been complaining of significant neck and shoulder pain associated withheadaches. I would be grateful if you could see her in relation to same.”40. Considerable significance was placed by the defendant on an assessment carried out bythe plaintiff’s Dublin based GP on 20th October, 2016. That assessment was recorded ina medical report dated 24th November, 2016, furnished by Dr. Sheila Byrne, which wasPage 9 ⇓admitted in evidence. In that report, Dr. Byrne stated that she had been told about theaccident by the plaintiff’s boyfriend, Mr. Jason Coughlan, on 2nd September, 2016. Shespoke to the plaintiff by telephone on 9th September, 2016. The plaintiff informed herthat following the accident her mood had been low and that she had felt tearful and hadlow motivation. They discussed her mental health and concluded that the plaintiff did notrequire antidepressant medication at that time, but that the issue could be revisited ifnecessary.41. Dr. Byrne noted that the plaintiff attended one of the other doctors at the surgery on 16thSeptember, 2016, and was prescribed antidepressant medication (Escitalopram 5mg) dueto a deterioration in her mood. She was also advised to attend counselling. Dr. Byrnereceived a telephone call from the plaintiff on 30th September, 2016. The plaintiff toldher that she was unable to attend in person because she felt unable to travel from Cork.She reported that she was attending physiotherapy twice weekly and also that she wasattending counselling, as advised. The plaintiff stated that the physiotherapist hadadvised her to request some muscle relaxant medication to try and ease her significantmuscle spasm. Dr. Byrne prescribed some diazepam. The defendant placed considerableemphasis on the following paragraph from her report, which dealt with the plaintiff’spresentation on 24th October, 2016:“On 24/10/2016, Ms. O’Sullivan attended me to say that she was making goodprogress with her physiotherapy, and that she no longer required muscle relaxantmedication. Her overall range of movement at her neck and back was improvingsteadily and her pain was lessoning. As a result, her mood was also improving.However, Ms. O’Sullivan reported that she still had ongoing pain in her right kneethat required further investigation. Ms. O’Sullivan had banged her right knee offthe dashboard during the accident. I arranged for her to have an MRI scan done.”42. Dr. Byrne concluded that report by giving the following opinion and prognosis:“Based on that fact that Ms. O’Sullivan was undergoing treatment in the form ofmedication and physiotherapy at the time of the accident in August 2016, it is verydifficult to give an accurate prognosis. It is my medical opinion as her GP that Ms.O’Sullivan suffered a significant setback in her post-operative physical recovery,and that the added pain and anxiety following the accident had an adverse effect onher mental health. I would hope and anticipate that Ms. O’Sullivan will make acomplete recovery from the injuries she sustained in the road traffic accident inAugust 2016. However, at present, I am unable to be more specific with atimeframe for this recovery.”43. The plaintiff was first seen by Dr. Harney, the pain specialist, on 22nd November, 2016.She complained of persistent ongoing left-sided neck pain radiating to the left shoulder, inaddition to lower back pain and pain in the right knee. She stated that physiotherapyintervention, particularly with respect to the right knee had helped significantly and herlower back pain had eased in the interval between the date of the accident and the dateof that review. Her major issue was pain with respect to the left side of the neck and leftPage 10 ⇓shoulder. Examination revealed marked tenderness at the facet joints on the left side atC.3 – C.6. There was also mechanical allodynia in the distribution of the right and leftgreater occipital nerves, slightly worse on the right than on the left. Dr. Harney statedthat his clinical impression was that the plaintiff was suffering with ongoing whiplashassociated disorder as a consequence of the road traffic accident on 27th August, 2016.Her most significant pain was in the distribution of the facet joints on the left side at C.3 –C.6 and also in the distribution of the left and right greater occipital nerves. This wastaking into consideration the Chiari 1 malformation, for which she had undergone foramenmagnum decompression surgery on 1st June, 2016, with excellent results. Dr. Harneyarranged to carry out treatment on the plaintiff’s neck the following month.44. A number of things happened in December 2016. Firstly, the plaintiff stated that shefeinted when in her bathroom, due to the level of pain in her head. She was detained inCork University Hospital for two weeks after that incident. During that time she felt thather head was spinning and that her brain was “flipping”. She stated that the pain in herhead was very severe. She stated that it was a very tough time in her life. Secondly, shehad experienced severe headaches after riding on a Ferris wheel. Thirdly, on 23rdDecember, 2016, she received her first treatment from Dr. Harney at the Bon SecoursHospital, Cork. He performed a pulsed radiofrequency lesioning (PRFL) on the left andright greater occipital nerves at 42 degrees centigrade for four minutes. That was doneto help manage her severe headaches. In addition, he also performed simple left andright C.3 – C.6 diagnostic facet joint blocks. The plaintiff stated that lesioning of theoccipital nerves was done under sedation and was administered by needle. She foundthat a frightening procedure. It was also quite painful, as were the facet joint blocks.She had been given morphine for the pain. Unfortunately, she had no immediate relieffrom her level of pain. She stated that she felt very low at that time. She had told herfather that perhaps she would be better off if she had died of cancer, as that would havebeen an end to her pain.45. The plaintiff was seen by her family GP in Cork, Dr. Donovan, on 30th December, 2016.He stated that she was complaining of considerable pain in her neck and shoulders andalso complained of severe headaches. He felt that her condition was due to her surgeryand the superimposed injury from the RTA. He felt that the RTA was a significantcomponent in her symptoms. In addition to neck and shoulder pain, she also complainedof lower back pain. He was of opinion that she had been vulnerable after the surgery andthat the RTA was highly significant.46. The plaintiff was reviewed by Dr. Harney on 7th February, 2017. She was stillcomplaining of headaches, but had made good progress in relation to her neck pain.Clinical examination revealed pain in the distribution of the left greater occipital nerve andto a lesser extent in the right greater occipital nerve. Facet joints left and right side C.2 –C.7 were not overly tender on that occasion. His clinical impression was that the plaintiffwas suffering with predominant severe left-sided greater occipital nerve neuralgia and toa lesser extent right sided greater occipital nerve neuralgia. She had responded todiagnostic facet joint block on the right side at C.3 – C.6. He advised her that furtherPage 11 ⇓treatment would be necessary. He also advised the plaintiff to continue seeing Ms.Ormond. She was commenced on half beta Prograne 80mg once daily to help manageher headaches and was advised to continue with Amitriptyline for management of pain.47. On 21st April, 2017, Dr. Harney performed PRFL of the left and right greater occipitalnerves. The plaintiff was reviewed by him on 6th June, 2017, when he noted that shehad gleaned some relief from the treatment which she had received in April 2017.48. On 1st September, 2017, Dr. Harney again performed PRFL of the left and right greateroccipital nerves. He also performed left and right C.3 to T.1 nuchal line injection. Theplaintiff was reviewed on 17th October, 2017, at which time she reported that thetreatment given on 1st September, 2017, had not improved her pain significantly. Hermajor issue at that juncture was right sided greater occipital nerve neuralgia and ongoinghemichranial pain on the right hand side.49. The plaintiff was next seen by Dr. Harney on 8th December, 2017, at the Bon SecoursHospital, Cork. On that occasion the plaintiff underwent IV Lidocaine 400mg andKetamine 50mg infusion over two hours.50. In her evidence, the plaintiff stated that at best, she only got temporary relief from hersymptoms as a result of the treatment given to her by Dr. Harney during 2017. Shenever got any lasting benefit. She continued to experience considerable pain in her neckand back, and had severe headaches. She had also been prescribed a large amount ofmedication in an attempt to ease her pain. She had been on Candesartan forapproximately eight months. She had also been on Amitriptyline, Palexia, Propranolol,Flunarizine, Pregabalin and Oxynorm.51. There had been some improvement during 2017, in that she had been permitted to returnto driving by Mr. Lim in February 2017. She had continued with her physiotherapy andhad started walking up to 30 minutes per day. She had gone to the local pool to do aprogramme of aquatic exercises. She was treated by the physiotherapist on a regularbasis in the intervals between treatment from Dr. Harney. She could not receivephysiotherapy treatment immediately after receiving his treatments. After the treatmentgiven to her on 1st September, 2017 by Dr. Harney, the plaintiff reported animprovement in relation to her cervical spine and left scapular pain, but stated that herheadaches had remained static. She had also suffered an exacerbation of lumbar regionpain, with associated radicular symptoms to the lower limbs. In Autumn 2017 she tried acourse of acupuncture treatment with Dr. Diarmuid O’Connell. Unfortunately, a positiveinitial response was not sustained and acupuncture treatment was discontinued.52. When reviewed by the physiotherapist on 8th January, 2018, the plaintiff reported noimprovement regarding her headache symptoms and reported that her left-sidedscapulae/thoracic and lumbar spine pain with associated lower limb symptoms, haddeteriorated without physiotherapy treatment. She had been unwell over the Christmasperiod with a respiratory tract infection. On 2nd February, 2018, the plaintiff wasadmitted to the Bon Secours Hospital for a further Lidocaine and Ketamine infusion. InPage 12 ⇓addition, the plaintiff underwent a trial of Cefaly, external neural modulation in an effortto manage her headaches, improve her sleep and her mood. This was a headband whichprovided electrical impulses to the brain. The plaintiff stated that she tried it for onemonth and found that it helped with her headaches and with sleep. It is not clearwhether it was continued after the trial period. My impression is that for some reasons itwas not.53. The plaintiff was reviewed by Dr. Harney on 20th March, 2018, at which time her majorissue was pain in the left shoulder and pain in the distribution of the left suprascapularnerve. She was also complaining of pain in the facet joints on the right side at C.2 – C.6.An MRI of the cervical spine on 28th March, 2018, revealed the previous surgery and aminimal stable disc bulge at C.5 – C.6. MRI of the left shoulder on the same daterevealed mild rotator cuff impingement, without rotator cuff tear or subacromial bursitis.54. The plaintiff was reviewed by Dr. Harney on 20th April, 2018. He performed PRFL of theleft suprascapular nerve and also performed left-sided C.2 – C.6 diagnostic facet jointblocks. Her right sided facet pain on that occasion was not too bad.55. The plaintiff was reviewed again on 21st September, 2018, at which time Dr. Harneyperformed targeted facet joint blocks on the right side at C.2 – C.6. He also performedPRFL of the left suprascapular nerve and also left and right sided L.4 – S.1 diagnosticfacet joint blocks. A repeat MRI of the left shoulder on 23rd October, 2018, revealed asupraspinatus tendon which was attenuated. There was no acute tear or tendonretraction. The infraspinatus and subscapularis tendons were intact. There was no jointeffusion or bursitis noted. An MRI of the lumbar spine on the same date revealed a broadposterior disc bulge at L.4 – L.5. There was no evidence of nerve root compression.56. The plaintiff was also reviewed by her GP in Cork during 2018. On 5th January, 2018,she was seen by Dr. Jordan, one of the doctors at the practice. She complained ofongoing headaches, left-sided rib pain for two weeks due to a respiratory tract infection.She was continued on Amitriptyline 10mg, four times a day and was also on Candesartanas prescribed by Dr. Harney. The plaintiff was reviewed by Dr. Jordan on 27th March,2018, at which time it was noted that her mood was very low and she was sleeping verypoorly. She described herself as lying in bed for hours awake and would sleep into thelate hours of the morning. He felt that she had low mood due to her other medicaldifficulties including the accident. He increased her antidepressant medication ofEscitalopram to 15mg per day. The plaintiff was reviewed by Dr. Jordan on 18th May,2018, at which time she was complaining of what he thought was an acute migraineattack. He was aware that she had had migraine as an adolescent. He referred her toDr. Sean O’Sullivan, consultant neurologist. On 9th July, 2018, the plaintiff was reviewedby another doctor in the practice, Dr. Cronin. She advised that the plaintiff continuetaking the antidepressant medication.57. The plaintiff was seen by Dr. Donovan on 14th September, 2018. At that time, she wasseeing Dr. O’Sullivan in relation to chronic headaches. He had administered Botoxinjections across the entire circumference of her skull, broadly following her hairline. ShePage 13 ⇓had received three courses of Botox in the period 2018 – 2019. Each course wouldconsist of approximately 31 separate injections.58. The plaintiff was reviewed by Dr. Donovan on 27th November, 2018, at which time henoted that she was continuing on Hypovase 2 at night from Dr. Harney and Topamax25mg a day from Dr. O’Sullivan. She continued to be symptomatic with headaches. Dr.Donovan stated that he was aware that she had had surgery in June 2016, but he feltthat they were now dealing with the effects of the road traffic accident. He felt that it wasa post-traumatic headache, which was an exacerbation of her previous condition and hadbeen caused by the road traffic accident. He noted that at that time she was verydistressed by her inability to cope with the demands of everyday life and in particular herinability to return to work.59. As noted previously, the trial of Cefaly (Transcutaneous Electrical neuro-muscular devicefor the treatment of migraines) in February 2018 produced beneficial results. When theplaintiff saw Ms. Ormond at that time, she reported a reduction in headache severity andimprovement in her sleep pattern. When she presented on 8th March, 2018 shecomplained of an exacerbation of lower back pain with right proximal lower limb pain,which the plaintiff attributed to losing her footing while walking on snow in early March2018. She received weekly treatment from the physiotherapist throughout March andApril 2018 with an improvement in lumbar and lower limb symptoms. Unfortunately, herprogress was adversely affected by the development of acute dorsal right foot pain ofapparent insidious and sudden onset in April, 2018. X-rays revealed findings suspiciousof a stress fracture of the third metatarsal of the right foot, caused by suspected vitaminD deficiency. The fracture was managed conservatively and the foot was placed in a bootand crutches were provided to the plaintiff.60. Repeat cervical facet joint injections at the end of April, 2018 were helpful in that whilstthe plaintiff’s headache severity remained unchanged, she reported a reduction incervico-thoracic scapular pain. Unfortunately, by the end of May, it was feared that theuse of crutches was having a negative impact on her cervical symptoms. When reviewedby Ms. Ormond on 6th June, 2018, the plaintiff had been advised by the fracture clinicthat she could dispense with the use of crutches. It was hoped that that would yield apositive effect on her cervico-thoracic symptoms.61. The plaintiff had had to desist from driving due to the fact that it caused exacerbation ofthe soft tissue injuries to her spine, particularly to the lower back. However, by May,2018 she had returned to driving, but could only drive for periods of up to 30 minutes,otherwise there would be a severe increase in her back pain. Overall, she felt that shehad made some improvement in some areas. Her knee problem had resolved. However,if she walked too far she experienced knee and back pain. Her lower back remained quitepainful at approximately 5 – 7/10 for pain. Her headaches were still at a level of between7 – 9/10 for pain. Her neck and shoulder pain was rated by her at 7 – 8/10 depending onwhat activity she did.Page 14 ⇓62. The plaintiff stated that while she had not been able to make any attempt to return towork, she had done other things to occupy her time. She had done an eight-week interiordesign course and had also done a six-week mindfulness course to help her cope with herpain and lift her mood generally. She found both of these beneficial. Her first series ofBotox injections had been administered by Dr. O’Sullivan in December, 2018. She did notget much relief from the first course of Botox injections, but the second course, whichwas administered some twelve weeks later, did provide some relief. The pain in her headdecreased to approximately 5/10, which was the lowest score that it had been.63. Moving into 2019, the plaintiff was reviewed by Dr. Harney on 25th January, 2019. Atthat review he performed simple left-sided C.2 – C.6 diagnostic facet joint blocks andPRFL to the left suprascapular nerve. He reviewed the plaintiff again on 26th April, 2019,at which time he performed left and right L.3 ¬– S.1 diagnostic facet joint blocks and leftand right C.3 – C.6 diagnostic face joint blocks under image guidance. He alsoadministered a left-sided C.7 – T.2 paraspinal injection. He noted that one week followingthese interventions, the plaintiff developed severe acute lower back pain and had severelower back spasm. MRI of the lumbar spine on 27th May, 2019 revealed stable imaging.64. The plaintiff was seen for a fifteenth time by Dr. Harney on 11th June, 2019. At thattime, she reported severe left- and right-sided lower back pain, left-sided neck pain andleft shoulder pain. She reported that her headaches were very severe. He noted that theplaintiff was seeing Dr. Sean O’Sullivan, Consultant Neurologist for treatment of herheadaches/transformed migraine and was receiving Botox therapy. She was also onTopamax and Folic Acid. She was taking Escitalopram for management of her low mood.Clinical examination revealed tenderness of the facet joints on the left and right side atL.3 – S.1, marked tenderness of facet joints on the left side C.3 – C.6 and reducedmovements of the left shoulder in adduction internal rotation and abduction externalrotation. There was also tenderness in the distribution of the left and right greateroccipital nerves and also nuchal lying tenderness left and right side C.3 – T.1. There wasno evidence of nerve root tension signs in either right or left upper limb, or right and leftlower limb.65. Dr. Harney’s clinical impression at that time was that the plaintiff had ongoing whiplashassociated disorder as a consequence of the RTA on 27th August, 2016. That was withthe background of foramen magnum decompression for management of Chiari 1malformation on 1st June, 2016. She had made excellent progress with respect to herdecompressive surgery. The plaintiff continued to suffer with persistent ongoing dailyheadaches/transformed migraine and was under the care of Dr. Sean O’Sullivan formanagement of same. She also had persistent ongoing neck pain in the distribution ofthe facet joints on the left side at C.2 – C.6 and ongoing pain in her left shoulder,consistent with rotator cuff tendinopathy. She also had persistent ongoing lower backpain, with tenderness in the facet joints left and right side at L.3 – S.1 on clinicalexamination.Page 15 ⇓66. At that time Dr. Harney felt that the plaintiff’s prognosis in the medium to long term waspoor in view of the ongoing persistent pain. He thought that she would continue to sufferwith ongoing pain in the medium to long term. She had not been able to return to workand he envisaged that she would not be in a position to return to work for some time. Henoted that she had suffered significantly from a psychological perspective, with significantlow mood directly as a consequence of the accident on 27th August, 2016.67. Dr. Sean O’Sullivan, Consultant Neurologist, also gave evidence on behalf of the plaintiff.He stated that in the period 2018/2019 he had administered three courses of Botoxinjections, totalling 93 separate injections in all. Unfortunately, while there was somelimited benefit from the second course of Botox injections, there was no lasting beneficialresult from this treatment. When he examined her on 3rd September, 2019, he foundthat she had tenderness to palpation over the posterior cervical muscles and left shouldermuscles including the trapezius. There was reduced range of horizontal neck movementbeyond 60 degrees from the mid-line, particularly looking over her left shoulder. She hadan elevated BMI. Visual acuity was 6/12 bilaterally. Otherwise, neurological examinationwas normal, including visual fields, eye movements, fundoscopy, screening tests forpronator drift and ataxia, tandem gait, reflexes and plantar responses.68. Dr. O’Sullivan’s opinion was that the plaintiff had sustained a traumatic brain injury on27th August, 2016. Her symptoms were consistent with post-traumatic exacerbation ofan underlying chronic daily headache, post-traumatic grade 2 whiplash associateddisorder (WAD), post-traumatic shoulder and lower back pain, all of which resulted fromher RTA. He noted that the plaintiff had had a history of chronic daily headaches prior tothe accident, but the severity of her headaches had deteriorated immediately after theaccident. She did not have lower back pain prior to the accident, that had only developedafter the accident. She had mild neck pain prior to the accident, but her neck pain haddeteriorated after the accident.69. He did not feel that further investigations were required at that point. He noted that anapparently normal MRI brain and cervical spine scan was entirely compatible with post-traumatic headache. The injuries sustained in post-traumatic headache and WAD wereoften microscopic, affecting the nerve cell functioning, without necessarily altering theirgross appearance on routine MRI scans.70. In terms of a prognosis, Dr. O’Sullivan felt that it was unlikely that the plaintiff wouldmake a full recovery. This was due to the fact that a small but significant minority ofpatients would have persisting problems. Almost 25% of patients would have persistingheadaches at four years after trauma. For that proposition he referenced a paper byT.A.D. Seifert and Randolph W. Evans, Post-Traumatic Headache: A Review, published inCurr Pain Headache RAP (2010) 14, pages 292 – 298.71. Dr. O’Sullivan was of the view that while it was difficult to predict the prognosis of post-traumatic headaches with accuracy, on an individual basis the plaintiff had been havingpost-traumatic exacerbation of her baseline headaches for over three years. As such, shewould be considered likely to become one of the 25% of people with refractory orPage 16 ⇓persisting headaches as described in the medical literature. He was of the opinion thather headaches would persist for at least the next two years, despite the treatmentmeasures which had been undertaken to date. He felt that it was unlikely that she wouldmake a full recovery. He hoped that she would make a partial recovery over the next twoyears, but she was likely to require frequent analgesic use for her headaches and backpain beyond that time. Doing the best that he could, he estimated that 50% of herheadaches at this time and continuing into the future, could be attributed to the RTA.72. Dr. O’Sullivan noted that in September, 2019 the plaintiff had been commenced onfremanezumab injections for migraine headaches. She had made some improvement onthat new form of treatment. He was hopeful that if that improvement was continued, shewould be in a position to return to work on a phased basis in the next two years.73. When the plaintiff saw the defendant’s physiotherapist, Ms. O’Mahony on 25thSeptember, 2019, she described her daily routine; she told her that she was living withher boyfriend in Cork. He did all the household chores, such as washing, hovering andchanging the bed clothes. She stated that she had tried to do some of these tasks, butthe pain was worse when she did so. She was able to do light housework such ascooking, but she tended to get very fatigued from standing, or looking down, such aswhen chopping vegetables. She had not driven since May, 2019, due to a lumbar spineinjury when getting dressed one morning. In general, her father or brother would collecther and bring her to her parents’ house every day to spend time with her family so thatshe was not on her own at home, while her boyfriend was at work. She would play withher nieces and nephews at her parents’ house when they were there. They were aged12, 7 and 3 years. She told Ms. O’Mahony that she would like to return to work and beable to carry out everyday tasks, but could not do so at that time due to the pain that shewas experiencing and the fear of the pain that she would experience if she performedthose activities.74. In her evidence the plaintiff stated that at present, she continued to experience verysevere headaches, severe neck pain radiating into her left shoulder and pain in her lowerback. Her range of movement in her neck and lower back was severely restricted. Shecontinued to take anti-depressant medication in the form of Escitalopram, 15mg daily.She also attended counselling. She was not able to exercise much due to her pain andaccordingly her weight had increased substantially. Overall she felt that her life had beenturned upside down since the accident. She stated that she would very much like toreturn to work, but was simply not able to do so, given her current level of pain. She feltthat she had no purpose in life at present. She had missed out a lot in her career and inparticular had missed opportunities for promotion since August, 2016.75. That concludes the account of the plaintiff’s symptoms, disablement and treatment sincethe time of the accident.Evidence Of The Plaintiff’s Medical Experts76. The primary evidence given by the plaintiff’s medical experts in relation to their diagnosisand treatment of her injuries has been set out above. In this section of the judgment thePage 17 ⇓Court will outline the evidence given by the plaintiff’s medical witnesses on the issues incontention between them and the experts retained on behalf of the defendant.77. In cross-examination Dr. Harney accepted that he had first seen the plaintiff after she hadundergone both her surgery and had been involved in the accident. He accepted that thesurgery itself was relatively serious in nature. It was put to him that according to theletter written by Ms. Ormond on 8th August, 2016, the plaintiff had significant ongoingdifficulties as a result of the operation at that time. He accepted that she did haveongoing difficulties, but stated that she had made good progress since the operation on1st June, 2016. By July, her range of movement had returned to a reasonable level,although it was still limited. He stated that in his experience most patients would improvedramatically in terms of headaches after such an operation. Although that would taketime, as the recovery period post-operation could take a number of months.78. It was put to the witness that according to the letter furnished by the plaintiff’s Dublinbased GP from an assessment on 20th October, 2016, she had made very considerableimprovement in her condition by that time, which was after the accident. Dr. Harneystated that when he saw the plaintiff in November 2016, she was in significant distress asoutlined in his first medical report. He could only say that her pain was very severe whenhe saw her, particularly her occipital nerve pain. He accepted that, broadly speaking,most people would make a recovery within approximately four – six months from suchsurgery in the absence of any other intervening trauma. However, a cohort of peoplehave significant ongoing pain and the plaintiff was in that category. He accepted that thetreatment which he had administered to the plaintiff had not produced any lastingbeneficial result. He stated that it was just a fact that some patients do not respond wellto treatment. It was put to the witness that the defendant’s expert, Professor O’Sullivan,was of the opinion that the plaintiff would have been better without receiving the level oftreatment that she had. Dr. Harney stated that there were two arguments as to whichwas the best approach for a doctor to adopt; one was to leave the patient alone and thesecond was to attempt to treat the symptoms. Interventions were not done lightly by apain specialist. They are done with a view to helping the patient. He stated that hewould only do an intervention if it was warranted in the circumstances. He felt that suchtreatment had been warranted in this case. However, he accepted that the plaintiff hadpersistent ongoing neuropathic pain as a direct result of the accident.79. It was put to the witness that Professor O’Sullivan would state that sometimes patientsget “medicalised”, meaning that they go around to various doctors trying to get relief andeffectively end up back at square one without making any improvement. Dr. Harneyaccepted that that can happen. In this case, the plaintiff still had pain notwithstandinghis interventions. However, he stated that it would have been remiss of him not to do theinterventions, when it was a proven fact that a lot of patients do well on suchinterventions and in addition, such interventions also serve a diagnostic role.80. It was put to Dr. Harney that the collision had been a low impact collision, with barely anyvisible damage to the vehicles and such damage as there was to the vehicle in which thePage 18 ⇓plaintiff was travelling, was very minor, as the repair bill came in at just under €250. Insuch circumstances the defendant’s experts found it hard to see how the plaintiff couldhave suffered such significant injuries as a result of such a collision, whereby she claimedthat she had suffered multiple symptoms for over three years since the accident. It wasput to the witness that the defendant’s experts were unable to understand how theplaintiff could have suffered the extent of injuries alleged by her from such a minorimpact and how she could have required all the treatment that she had had since theaccident. The defendant’s experts did not allege that the plaintiff was not injured in theaccident, but they were of the opinion that she was not injured to the extent that shealleged. Dr. Harney stated that he would see a lot of patients after low impact collisions,who developed severe neuropathic pain and for some of these patients the pain continuesfor longer than two years and is chronic. The plaintiff was in that category, in that shehad had chronic pain for more than two years. He had seen the plaintiff relatively earlyafter the accident and had administered appropriate treatment and yet she still hadsignificant pain.81. It was put to the witness that the defendant’s experts would say that there was noevidence of trauma to the plaintiff’s head as a result of the accident. Dr. Harney agreed,but stated that the plaintiff had suffered a soft tissue injury and beyond that haddeveloped severe neuropathic pain. She had significant occipital neuralgia. He had donehis best to treat it, but it persisted. He stated that the occipital nerve ran from the C.2level up into the scalp. He had no doubt that it contributed to her ongoing headaches.He stated that she had severe headaches when he first saw her. It was put to him thatheadaches had not been mentioned in his medical report until he saw her in December,2016. Dr. Harney disagreed, stating that she was very tender in the occipital nerve whenhe saw her in November, 2016. There was tenderness in the area on examination andshe complained of severe left neck and shoulder pain.82. It was put to the witness that if she had developed post-traumatic headaches, thedefendant’s experts would say that they would normally be seen quickly after thetraumatic event, and where no such headaches had been mentioned in his report inrespect of the November 2016 assessment, they were probably not significant at thattime. Dr. Harney disagreed, stating that he had noted significant left-sided neck pain andthe plaintiff was tender in that area and there was also pain and tenderness in theoccipital area in December 2016. It was also of significance that headaches werespecifically mentioned in the referral letter from Mr. Lim dated 13th October, 2016. Dr.Harney accepted that he had not specifically mentioned the aspect of headaches at theNovember 2016 assessment. He stated that the patient had severe neck pain and wastender in the area of C.2 – C.3 which can give rise to headaches.83. It was put to the witness that the defendant’s doctors and in particular the defendant’sphysiotherapist, would give evidence that the plaintiff had a greater range of movementthan that exhibited under examination. He was asked whether in such circumstances,there was a psychosomatic element to the plaintiff’s presentation. Dr. Harney stated thathe did not think that there was. The plaintiff had good self-efficacy in trying to get onPage 19 ⇓with her life. She had engaged well with her rehabilitation programme as directed by himand her physiotherapist. He was satisfied that the plaintiff genuinely wanted to improveand wanted to return to work. He was of the opinion that she will return to work in duecourse. He accepted that it was valid to try to objectively verify a patient’s account oftheir physical capacity, but this plaintiff had demonstrated good self-efficacy inattempting to get back to full activity. He agreed that a return to work would be verybeneficial for her, both financially and socially. It would be a positive development, butwould have to be done on a phased basis and built up over time.84. In re-examination Dr. Harney stated that there was significant tenderness in the occipitalnerve in 2016. For that reason, he had injected the occipital nerve in December, 2016.That was primarily done to target the plaintiff’s headaches. They had been referred to inthe referral letter for Mr. Lim and were the primary target of his treatment in December,2016. His opinion was that the plaintiff had suffered a whiplash disorder as a result of theroad traffic accident, which had led to occipital neuralgia in her neck going into her headwith associated headaches, together with shoulder and lower back pain.85. In cross-examination, it was put to Mr. Lim that from the photographs of the cars afterthe impact, the level of impact in the RTA was very minor. It was put to him that thepressure applied to the plaintiff’s neck in such an impact would have been similar to thepressure that might have been applied by a physiotherapist treating her neck. Mr. Limdid not agree with that proposition. He stated that an accident was an unexpected event,particularly in a low impact collision and if the passenger is wearing a seatbelt, then theonly structure that takes the impact is the neck. It also had to be borne in mind that theplaintiff suffered soft tissue injury to her cervical spine, when it was already susceptible toinjury due to the surgery in June 2016.86. Mr. Lim agreed with the defendant’s doctors that where there is a soft tissue injury, thatwould normally resolve relatively quickly. However, when her condition deteriorated andshe had returned to see him in early October 2016, he had referred her on to Dr. Harneyfor appropriate treatment. He did not have any further input into her treatment sincethat time. He agreed that the injury in the accident was predominately to her neck. Healso agreed that the content of Dr. Byrne’s report from the assessment on 20th October,2016, indicated that she appeared to be doing quite well at that time. He agreed thatgenerally most of her symptoms involved neck pain.87. It was put to Mr. Lim that usually one would expect post-traumatic headaches to come onrelatively quickly after trauma, but that here there was little mention of headaches untilafter December 2016 and that that suggested that they were less likely to have beencaused by the accident. Mr. Lim agreed that the further out the headaches were, the lesslikely they were to be related to the accident. However, he pointed out that in his referralletter to Dr. Harney, he had made specific mention of headaches and Dr. Harney hadgiven an injection to the occipital area to specifically address the headaches.88. In cross-examination, the plaintiff’s Cork based GP, Dr. Ciarán Donovan, stated that theplaintiff’s family had been patients of his practice for over 35 years. He had known thePage 20 ⇓plaintiff since she was a child. She had had a lot of procedures as a result of the injuriessustained in the accident. Her life had been completely disrupted. He was of the viewthat she was a very genuine patient. He stated that she was a genuine person who,following the RTA, had been in a quagmire of medical difficulties. He was of the opinionthat the accident was the cause of these difficulties. He accepted that in 2018 his partnerin the practice had made a diagnosis of migraine type headaches. The plaintiff had hadsome small history of migraine when she was an adolescent. In his report he had saidthat she was suffering from depression and aggravation of migraine type headaches. Heaccepted that he knew the difference between post-traumatic headaches and migraineheadaches and had described them as being of the latter type.89. It was put to Dr. Donovan that given the evidence of minimal car damage as a result ofthe impact, it was difficult to ascribe all her medical difficulties to the accident. Dr.Donovan disagreed. He stated that the plaintiff was only shortly post-seriousneurosurgery at the time of the accident. Accordingly, she was not in the normalcategory of a healthy person, who might be involved in such an accident. A rear-endcollision was unexpected. He stated that he would often see people who had had veryminor accidents, such as missing their footing on a step and it could give rise to neckpain. While he accepted that there did appear to be improvement at the time she hadseen her Dublin based GP in October 2016, improvement was not always linear over time.He had seen people improve, then reach a plateau and then subsequently disimprove.90. When he saw the plaintiff on 2nd October, 2019, she continued to be symptomatic andhad psychiatric difficulties. She continued to have significant pain. She articulated a wishto return to work, but was unable to do so. She stated to him that she would love toreturn to work, but she simply could not manage it. He stated that she had a desire toget on with her life and return to work.91. In re-examination he was asked about the opinion of the defendant’s physiotherapist thatthe plaintiff was prone to catastrophizing her level of pain and disability. Dr. Donovanstated that he did not feel that the plaintiff was catastrophizing at any stage. She hadalways been keen to return to work and get back to her life. The doctors who hadreferred her to Dr. Harney and Dr. O’Sullivan, had done their best to treat her by makingsuch referrals and the specialists would not do the procedures which they had done,unless they were warranted. In summary, he was of opinion that her ongoing difficultieswere caused by the RTA. She had had serious surgery in June 2016, but he felt thechanging point was the RTA in August 2016.92. Evidence was also given by Dr. John Denehy, consultant psychiatrist. He had seen theplaintiff on one occasion on 14th September, 2017, at the request of PIAB. Having takena detailed history from the plaintiff, he was of the view that she was suffering amoderately severe depressive episode, whereby she had difficulty sleeping, had appetitedisruption, alhedonia, a pervasive death wish and fleeting thoughts of self-harm. Inaddition, due to the fact that she had nightmares, anxiety when driving, avoidancebehaviour, a feeling of detachment from people, emotional numbing and hypervigilance,Page 21 ⇓he diagnosed her as having PTSD. At the time that he saw her he felt that she wouldbenefit from cognitive behavioural therapy (CBT). He subsequently had a conversationwith the plaintiff outside the court on the day of the hearing and was aware that she hadhad a course of CBT with Mr. Liam Hurlihy.93. In cross-examination, Dr. Denehy accepted that she had not been referred to him at anystage for treatment by her GP. He had only seen her on behalf of PIAB. He was notaware that she had had any difficulties with sleep before the accident, or that she hadbeen given medication for such condition prior to the accident. When he saw her inSeptember 2017, he thought that she had moderate difficulties with her mental healthdue to the depression and PTSD. He thought that her symptoms had reached thethreshold for a diagnosis of PTSD, because she had sufficient relevant symptoms for areasonable length of time. However, the PTSD was only present for a few months afterthe accident. It improved after about three months. However, it appeared that herdepression continued for some considerable time. He found that with soft tissue injuries,patients tended to follow a fluctuating course. They could present well on a particular dayon examination, but it was necessary to look at their condition over a longer time period.94. In cross-examination, Dr. Sean O’Sullivan, consultant neurologist, was also asked aboutthe assessment carried about by the plaintiff’s Dublin based GP on 20th October, 2016.He stated that that was a snapshot from a particular day. It was necessary to look at apatient’s condition over time. It was possible for them to have good and bad days. Thecondition that her skull and neck had been in at the time of the accident, being aweakened post-operative condition, could give rise to symptoms from even a smallimpact. He accepted that most people would recover from soft tissue injuries withinapproximately a year, but there were outliers beyond that cohort. If a person had aparticular vulnerability at the time of the trauma, there was an increased chance that theywould be in the cohort who had refractory symptoms. It was very difficult to predict whatwould happen on an individual basis.95. He accepted that generally one would expect symptoms following an accident to come onrelatively quickly. However, their importance may increase if certain symptoms remainand other injuries subside. Symptoms would usually come on within one week after anaccident, but they may not be the priority at that stage. He accepted that the plaintiff didhave headaches before the accident. He felt her headaches were probably migraine typeheadaches, but the Chiari malformation would predispose a person to headaches. He wasaware that she had had migraine in her youth. He was of opinion that 50% of herongoing headaches were due to the RTA.96. He was asked what should be drawn from the fact that there was no mention ofheadaches to the Dublin based GP in October 2016. Dr. O’Sullivan stated that he couldnot comment on what the plaintiff told her GP on that occasion, or what the GP may haverecorded at that visit. He could only say what complaint she made to him when he sawher in 2018. There could be reasons why such a complaint was not recorded by the GP;there may have been time constraints, or if the plaintiff attended with some other morePage 22 ⇓pressing complaints, such as neck or low back pain, that could explain the absence of anyreference to headaches. It was put to the witness that when she first saw Dr. Harneythere was no mention of headaches. He stated that that depended on the context of thereferral. When she was referred to him in 2018, it was in relation to headaches, so he didnot focus on the neck and back complaints to any great extent.97. Finally, the plaintiff’s physiotherapist, Ms. Ormond was asked about the allegeddiscrepancy between the plaintiffs reporting of pain and limitation of movement and herobserved movements as recorded in the report furnished by the defendant’sphysiotherapist, Ms. O’Mahoney. Ms. Ormond accepted that pain was a subjectiveelement, but clinicians would look for physical signs on the part of the patient whenperforming movements, such as signs of effort or distress. She stated that she had theopportunity to observe the plaintiff in the waiting room when she was waiting fortreatment. Often the plaintiff was not able to sit, but would be pacing the room, orstanding against a wall, even though there were seats available. She was confident thatthe plaintiff was not putting this on as an act for her, as the plaintiff was often unawarethat she was being observed, as she was reading a magazine, or looking at her phone.98. Ms. Ormond accepted that the photographs indicated that the car damage was veryminor, which could indicate a minor accident. However, in her experience there was littlecorrelation between the extent of car damage and the injury that may be caused to apassenger. She had seen patients cut out of cars and brought to hospital on spinalboards and yet they had managed to walk out of the A&E Department some hours laterwith relatively minor injuries. Alternatively, she had seen occasions where patients hadbeen involved in minor impacts, which had given rise to prolonged symptoms.99. Ms. Ormond stated that she had seen the plaintiff on a relatively frequent basis frombefore the accident up to the present time. She had found that the plaintiff had limitationof movement of the neck, shoulder and back as recorded in her report. She could notunderstand how the defendant’s expert, Dr. Kaar, had found that she had a full range ofmovement throughout her spine. She had assessed the plaintiff on a frequent basis andshe did not have that range of movement on clinical assessment. She did not havenormal range of movement for a person of her age. She stated that when carrying out aclinical assessment if a person complains of pain, the therapist would accept that, butthey would also look for physical signs such as grimacing, sweating, breathlessness andthey would also look for objective signs on palpation eg. muscle spasm and discresistance, which could not be faked by the patient.100. She was of the view that the plaintiff was an excellent patient. She was well motivated inrelation to her rehabilitation and was willing to try whatever exercises were prescribed forher. She had good insight into her recovery, but pain was a huge barrier for her. Overallshe was disappointed that such little progress had been made over the years as a resultof multiple treatments, but given that her neck was significantly compromised at the timeof the accident, one had to expect slow progress. Her progress had been variable to date.She had had some good periods, but equally she had had bad periods. The main hurdlePage 23 ⇓was her pain level. There was secondary sequelae from that, such as sleep disturbanceand low mood and they can have an effect on the pain level. She would be hopeful that arecovery could be made within a further two to three years.101. In her report, Ms. Ormond referred to the 4th edition of Management of CommonMusculoskeletal Disorders, by Hertling & Kessler, published by Lippincott, Williams &Wilkins (2006), where the following definition of chronic pain was given at page 53:“Chronic pain is described as a persistent pain that is not amenable to treatmentsbased on specific remedies or to routine methods of pain control. It does not servea biologic purpose indicative of tissue damage or irritation. In chronic pain the bodyis unable to restore its physiologic functions to normal homeostatic levels. Chronicpain often produces significant changes in mood (e.g. depression) and lifestyle.Unrelieved pain may produce a decline in the persons routine activities andparticipation.”102. The authors noted that migraine and tension headaches were very common chronic paincomplaints. The authors set out the theories of pain which have been adopted through theyears; beginning with the Specificity Theory put forward by Von Frey in 1894, followed bythe Pattern Theory proposed by Goldschneider in 1894. That was followed by the GateControl Theory in 1965. The most recent theory was that proposed by JD Loeser inConcepts of Pain published in 1984. Hertling & Kessler described that model in thefollowing terms:“Loeser proposed a biopsychosocial model of pain that suggests the phenomenon ofpain can essentially be divided into four domains: nociception, pain, suffering andpain behaviour. Nociception is the detection of tissue damage by transducers in theskin and deeper structures and the central transmission of this information by A –delta and C fibres in the peripheral nerves. Pain thereby is the perception andinterpretation of the nociceptive input by the highest parts of the brain. Suffering isthe negative affective response to pain. It may be difficult to differentiate sufferingfrom fear, anxiety, isolation or depression. Lastly, pain behaviour is what anindividual says or does (e.g. taking medications) or does not say or do (e.g. jobabsenteeism), which leads others to believe that individual is suffering from noxiousstimuli. Only pain behaviours are observable and measurable. Culture andenvironmental consequences influence pain behaviours. According to this modelone can experience or demonstrate some elements of the model in the absence ofothers. In chronic pain, pain behaviours and suffering often exists in the absence ofnociception.”Medical Evidence On Behalf Of The Defendant103. Evidence was given on behalf of the defendant by Mr. George Kaar, consultantneurosurgeon. He saw the plaintiff on behalf of the defendant on one occasion on 13thAugust, 2019. He had previously examined the plaintiff in February, 2018, on behalf ofIrish Life PLC in relation to a permanent health insurance policy, or income protectionPage 24 ⇓policy held by her. However, his evidence solely related to the assessment carried out on13th August, 2019.104. When he saw the plaintiff in August 2019, she complained of constant headaches, whichwere worse than they had been before the RTA. They were worse on the right side. Shealso complained of lower back pain, which had been improving up to May 2019, but shehad put her back out while dressing at that time. She had been in bed for four weeksduring the summer of 2019 due to lower back pain. She also complained of shoulderpain. Her weight had increased by 21kg. She was not able to go to the gym and she wasnot able to work. Mr. Kaar stated that on clinical examination he could not find anydiscomfort being exhibited when walking, sitting or lying. She had a full range ofmovement in her neck without spasm. Extension movement of the back was slightlyreduced. Balance and gait were normal. He had reviewed the imaging scans in her case,which were essentially normal, save for the operative treatment that had been carried outin June 2016. He noted that due to that operation, she was symptomatic at the time ofthe road traffic accident.105. Overall, he felt that the RTA was a very minor one with very little damage done to eithervehicle. There was nothing to indicate that there would be significant symptoms arisingfrom the accident. Subsequent investigations did not show any additional injury. If therewas a minor strain of her muscles and ligaments surrounding the spine, the symptomswould have been maximal after the accident and would have improved thereafter. Thenatural course of a minor strain injury would be that there would be marked improvementover time, usually over three to six months at most. Thus he was of the opinion that anyinjuries sustained in the accident would have recovered within a short period, because thereported scans did not reveal any injury. He did not think that the RTA was a majorfactor in her subsequent symptoms.106. Mr. Kaar was further of the view that the level of the plaintiff’s complaints of pain wereout of proportion to his physical examination of her. He was not able to localise hersymptoms. He could not find any spinal instability. He felt that her symptoms wereunexplained. He was of the opinion that she had symptoms of chronic pain syndrome,which was a functional issue.107. He stated that post-traumatic headaches were normally maximal within days of theaccident and would then get better. Some 80 – 90% of the population generally sufferheadaches and 20% of the population have persistent headaches, but these are not dueto any accident.108. He was asked to comment on the view expressed by Dr. Sean O’Sullivan that the plaintiffhad suffered brain damage at a micro- or cellular-level and that it was this damage thatwas causing her symptoms. Mr. Kaar stated that if that were the case there should beminor symptoms. He did not agree that 50% of her headaches were due to the RTA.109. In cross-examination, Mr. Kaar stated that he was not sceptical of the plaintiff’ssymptoms as such, but he was sceptical of these symptoms being caused by the RTA. HePage 25 ⇓could not understand how her symptoms could be caused by that event. He accepted,that she had neck, shoulder and lower back symptoms and headaches.110. Mr. Kaar stated that he was aware of the correspondence leading up to the operation on1st June, 2016, and the correspondence thereafter. He did not disagree with the decisionwhich had been made to carry out that operation. The plaintiff had had a difficult time inthe weeks following the operation and manual therapy was not scheduled to start untilSeptember 2016, even without the intervening road traffic accident. He accepted thatMs. Ormond had found that the plaintiff had improved post-operatively up to the time ofthe accident and then there had been a deterioration in her condition and an increase inher headaches, with the onset of lower back pain after the accident.111. Mr. Kaar stated that pain specialists treat pain. Pain was defined by them as being adisease, it was not a post-traumatic condition. Accordingly, he was of the view that thesymptoms which the plaintiff had, were the disease itself. There were a lot of backgroundpsychological factors effecting this disease. In this case there was a tendency for theplaintiff to develop symptoms after minor trauma, as shown by the fact that she went outof work following a minor blow to the head in November 2015. He was of the view thatthere was an element of overreaction on the part of the plaintiff in relation to the injuriessustained in the accident which, together with a loss of fitness and the ongoing court caseand secondary weight gain, were all contributing to her ongoing pain.112. Mr. Kaar stated that he was not saying that the plaintiff was exaggerating her symptoms.He accepted that they were real to her. However, he was in court to deal with thecausation of those symptoms. His disagreement was in relation to the cause of thosesymptoms.113. The plaintiff had suffered chronic headaches since November 2015 and had been out ofwork since January 2016, both of which were long before the road traffic accident. Hewas of the view that she was suffering from chronic pain disease before she had eitherthe surgery in June 2016, or the accident in August 2016. The degree of Chiarimalformation was quite mild. There were no neurological symptoms; yet she had hadchronic pain ongoing for over six months prior to the operation.114. Mr. Kaar stated that he was not aware of any changes in either physical examination, oron MRI scanning, between the road traffic accident and the present. The scans had allbeen stable. He stated that if it had been a serious rear ending impact on a person whohad had surgery in the recent past, a scan would have shown haemorrhage, ligamentdamage and a possible spinal fracture. He accepted that one might see loss of lumbarlordosis and muscle spasm for a few weeks. He said that it was hard to understand howthat could last for a number of months.115. It was put to this witness that the various witnesses called on behalf of the plaintiff hadstated that she was doing everything possible to return to work. Mr. Kaar stated that itwas not clear why she could not work at this stage. The longer pain continued, the lesslikely it was that a person would do any work. He accepted that the plaintiff’s neurologistPage 26 ⇓believed that she could return to work on a phased basis within a further two years;however, it was hard to see why that had not occurred within two years subsequent tothe accident. He could not understand why a further two years was required at thisstage. He accepted that she was doing her best to manage her symptoms, but it was notpossible to implicate the road traffic accident as being responsible for the symptoms.116. In re-examination the witness stated that on the basis of the letter from Dr. Byrne inOctober 2016, the plaintiff was getting better at a point that was two months post-accident. She should have returned to work at that stage. If the GP was right, she wasrecovering from her surgery and from any possible injuries sustained in the accident.117. In his medical report, Mr. Kaar had given the following definition of chronic pain:“Chronic pain is a clinical syndrome completely different from acute pain. Chronicpain and disability become increasingly dissociated from the physical problem andbecome increasingly associated with emotional distress, depression and adaptationto chronic invalidity. The assessment of pain and disability usually depends on thepatient’s own subjective report of the pain and physical restrictions.Pain which is not localised, continuous pain, intolerance of treatments, restrictionsof day-to-day activities and overreaction and restriction as a general response toexamination indicate psychological factors are generating pain or that there may beexaggeration.”118. Later in the report Mr. Kaar stated that persistent unexplained restricting pain for longerthan six months, lack of response to treatments and restriction for work are all features ofchronic pain behaviour, a functional disturbance rather than a physical one. It was theseverity of symptoms and restriction for work, rather than the severity of an injury, whichwas the outstanding feature. He stated that the development of chronic symptoms waslikely to be multifactorial. There was significant history of headache, significant neck painand symptoms secondary to surgery in this case and there may have been backgroundstresses in relation to work. There was ancillary gain in not working. There was previouscompensation for “whiplash”. It was likely that the plaintiff had lost a considerableamount of fitness. It was not unusual for mechanical symptoms from the spine toincrease where exercise was discontinued. There was also ongoing litigation and theprospect of compensation, which brought their own stresses and would tend to augmentsymptoms.119. Evidence was also given by Professor Michael O’Sullivan, consultant neurosurgeon in CorkUniversity Hospital. He saw the plaintiff on one occasion on 27th April, 2018. At thattime, she complained of headache, inter-scapular pain, neck pain, lower back pain andknee pain. She said that the accident had exacerbated her symptoms. Her complaints inrelation to headaches were of vertex headaches, meaning headaches at the top of herhead. On examination she had no abnormal neurological signs, spinal movement was fulland free. Radiology imaging did not disclose any significant injury.Page 27 ⇓120. Professor O’Sullivan was of the view that her headaches were of a post-traumatic originfrom the time that had bumped her head against the ESB box in November 2015. He didnot think that her headaches at that time were due to the Chiari malformation, becausesuch headaches are percussive headaches, i.e. they are brought on by sneezing and otherhead movements.121. In relation to her ongoing headaches, it had to be noted that she had had headaches priorto the accident and from the damage to the vehicles, it appeared that minimal force hadbeen applied to the vehicle in which she had been travelling and therefore minimal forcehad been applied to her head. It was put to the witness that Mr. Sean O’Sullivan was ofthe view that 50% of her headaches were due to the RTA due to possible micro-trauma inthe brain. Professor O’Sullivan stated that it depended on the type of headache. Hereshe complained of vertex headaches, but she did not strike the vertex of her head in theaccident, so it was possible to infer that the headache was not caused by the RTA. If theheadache had been caused by the RTA it would have been a cervicogenic headache. Dr.Harney had treated her for that, but it had not worked, which implied that the headachewas not in fact of that type, or caused by the RTA. If she had hit her head against theheadrest, any resultant headache would have been maximal for two weeks post-accidentand then would have settled within a period of approximately six months.122. In relation to her post-surgery progress in June 2016, her assessment by Ms. Ormond on29th July, 2016, was consistent with a reasonable post-operative recovery being made.Given the assessment by Dr. Byrne in October 2016, he would be satisfied with that levelof progress if there had been no accident. When he saw the plaintiff at approximately 18months post-accident, her back and neck movements were full.123. In cross-examination Professor O’Sullivan stated that after the accident the plaintiff’ssubjective interpretation was that her symptoms were worse, but her neurological testswere normal. However, when the findings made by Ms. Ormond were put to him, heaccepted that the physiotherapist had reported a deterioration in the plaintiff’s conditionpost-accident. He accepted the findings that had been made by her on her assessments.He accepted her findings and her interpretation of those findings.124. It was put to the witness that Dr. Harney had given the plaintiff multiple injections in thearea of her neck. He accepted that he had done occipital nerve blocks; that would havebeen for occipital neuralgia, however, the plaintiff was complaining of vertex headaches.He would refer a person for occipital nerve blocks, if there were symptoms of occipitalneuralgia. He accepted that Dr. Harney had done the treatment in an effort to relieve herheadaches.125. The witness accepted that the plaintiff’s complaint of an increase in her neck pain afterthe road traffic accident, was supported by the evidence of Ms. Ormond, Dr. Harney andDr. O’Sullivan. He accepted that it was likely that there was some soft tissue injury to theneck, which had been operated upon previously. He did not take issue with thatoperation, however the subsequent course of the injury to her neck was beyond hisexperience. He accepted that there was a temporal relationship in relation to the onset ofPage 28 ⇓more severe neck symptoms, but with a clear MRI scan, he would have expected anysuch exacerbation to have resolved within six months. When it was put to the witnessthat a scan would not pick up damage at the cellular level, he stated that to have anaxonal type injury to the brain, one would need a very severe impact leading to loss ofconsciousness. He pointed out that Dr. O’Sullivan does not deal with traumatic braininjury.126. It was put to the witness that any neurologist would be aware that when examined underhistology, cellular injury can cause symptoms. Professor O’Sullivan stated that this wasgetting somewhat outrageous; they were suggesting that there would behistopathological examination of the brain in a patient who did not have a brain injury.The plaintiff had a vertex headache, not a cervicogenic headache. However, he acceptedthat she complained of a cervicogenic headache after the accident. He thought that therehad been vertex headaches after striking her head in November 2015 and somecervicogenic headaches after the road traffic accident.127. He referred to conclusion number four in his report which stated as follows:“Her headache was exacerbated by a road traffic accident on 27.08.016. She hasundergone multiple interventions by Dr. Donal Harney which resulted in partialrelief of the cervical pain and no relief of the headache.”128. The witness stated that that conclusion related to cervicogenic headaches, which wereexacerbated by the RTA. She had had such headaches as a result of the surgery in June2016, which were then exacerbated by the RTA. He accepted that the plaintiff’s neck painwas worsened by the RTA as found by Ms. Ormond and by Dr. Harney. The neck pain gotpartial relief from treatment. In terms of overall trauma to the plaintiff’s neck, there hadbeen severe trauma to it as a result of the surgery in June 2016 and then minimal traumato it as a result of the RTA in August 2016. He accepted that there had been anexacerbation in her neck symptoms due to the accident, but he expected thatexacerbation to have lasted only six months.129. He accepted that the symptoms of neck and shoulder pain which were referred to atconclusion five in his opinion and which he deemed to be consistent with a diagnosis ofsoft tissue strain, referred to soft tissue injury in the road traffic accident. He acceptedthat that was treated with intervention, with only partial relief, from such intervention.He accepted that the lower back soft tissue strain referred to at paragraph 6 of hisconclusions, had been caused by the RTA.130. Professor O’Sullivan accepted that the plaintiff continued to suffer the symptoms of whichshe complains. However, he thought that much of her symptomology was from theaffective component of pain, so it was difficult to say what would happen after thelitigation was over. If the component was affective, then that should be managed from apsychological aspect. He did not dispute that she had had extensive treatment, but ifthat had been unsuccessful and if there was a significant affective component, then sheshould attempt to “de-medicalise” and return to normal activities. He had advised thatPage 29 ⇓she should return to everyday activities as far as her symptoms would allow. He hadadvised a gradual return to work.131. In re-examination he stated that he was of the opinion that a return to work wouldimprove her condition substantially, as it would be beneficial for her socially, physicallyand mentally. He stated that when he had examined her, she had no neurologicalfindings. The scans were clear and she had full movement of her spine, so there was noreason why she could not return to work immediately.132. Finally, evidence was given by Ms. Lowry O’Mahoney, chartered physiotherapist. Shequalified as a physiotherapist in 2010. She saw the plaintiff on one occasion on 25thSeptember, 2019, for the purpose of carrying out a functional assessment of her.133. Ms. O’Mahoney stated that her conclusion was that the plaintiff reported pain andrestriction of movement at a higher level than was actually warranted. She reached thatconclusion for a number of reasons. Firstly, on physical examination the plaintiff’s rangeof neck flexion was less than Ms. O’Mahoney had observed of the plaintiff while she wasfilling in a questionnaire prior to commencing the physical part of the assessment. Duringthat period, while the plaintiff was sitting in the waiting room, she was able to sit with herneck flexed, while the clipboard was resting on her knee for an appreciable period of time.134. Secondly, on examination, lateral rotation of the neck was limited bilaterally, whereaswhen carrying out other tasks such as pushing and pulling objects, she was able to lookto the left without apparent discomfort. Thirdly, when doing the cardiovascular step test,whereby she had to step on to a box at a preordained rate for a set period of time, herlevel of reported effort and pain, did not match her physical signs. In other words, whileshe reported pain and difficulty completing the exercise, there was no correspondingevidence of effort or pain, by means of breathlessness, sweating or facial expression.135. Fourthly, the plaintiff had been administered the standard pain catastrophizing scale asdevised by Sullivan, Bishop & Privik, which was a recognised scale which had beenvalidated and used in over 700 independent tests. On that scale she scored very highly,reaching a total of 97%, which was broken down into rumination on symptoms 96%percentile, magnification of symptoms 93% percentile and helplessness 98% percentile.Patients who scored highly on this scale tended to overestimate the degree of pain andthe negative aspects of performing certain activities. Ms. O’Mahoney stated that the oldmodel of treatment focused on the morbid injury, but in more recent times treatmenttook account of different factors in recovery, such as social and psychological factors.There was evidence that CBT can be effective in dealing with catastrophic thinking.Exercise therapy could also be beneficial in bringing about rehabilitation, as there wasevidence that such therapy could increase function and decrease pain. She alsorecommended a graduated return to work, as that would provide exercise and a socialoutlet for the plaintiff and would also have psychological benefits for her.136. In cross-examination Ms. O’Mahoney stated that the surgery to the plaintiff’s neck in June2016 had been significant surgery. She accepted that the surgery involved considerablePage 30 ⇓cutting of the soft tissue structures around the cervical spine in the area of C.1 and intothe base of the skull. She accepted that the plaintiff’s neck was in a weakened state andthat the soft tissue structures therein were also weakened post-surgery. She acceptedthat muscle spasm was generally a preventative mechanism, which would arise followinginjury. She accepted the findings that had been made by Ms. Ormond, that the plaintiff’scondition had disimproved after the RTA. She did not take issue with Ms. Ormond’sfinding that that disimprovement had been due to the RTA.137. She stated that on her assessment of the plaintiff’s range of movement, she had foundlimitation of movement in all plains except for right neck rotation. The left arm hadlimitation of movement and reported discomfort. She had enquired from the plaintiff asto what treatment she had received and the plaintiff had given her an account of thevarious interventions that she had had from Dr. Harney and Dr. O’Sullivan. However, shedid not know exactly where the facet joint blocks had been carried out. She acceptedthat her collation of information in that regard was somewhat deficient. She acceptedthat she might have collected more information about where the treatment had beenadministered. She was aware that multiple treatments had been given by Dr. Harney andthat the plaintiff had also received treatment by way of Botox injections from Dr.O’Sullivan. She was also aware of some of the medication that the plaintiff was on, asshe had a list of that medication.138. She stood over the comments that she had made in relation to the plaintiff’s catastrophicthinking. The scale that had been administered, had been widely accepted in a largenumber of studies. These had shown that catastrophic thinking can affect a patient’srecovery. Such thinking is an overestimation by the patient of their pain and how itaffects them. It is based on an emotional response of the patient to the trauma. So it isnot just the morbid aspects of recovery that one looks at, one also looks at the social andpsychological effects. She agreed that that aspect should be assessed by a psychologistor psychiatrist and in particular, it is they who should direct the appropriate treatment forit.139. In re-examination it was put to the witness that there were three possibilities which couldbe revealed by testing; the first was that a patient was deliberately exaggerating theirsymptoms; secondly, that the patient had the disability which he or she believed she had,i.e. it was confirmed on testing; and thirdly, the patient believes that they have a level ofdisability and cannot do certain things, but on testing it is shown that the patient is not asbad as he or she thinks she is. Ms. Lowry thought it was the third proposition that wasrelevant in this case. The plaintiff’s view of her level of disability did not match the levelof functionality that she had found on testing. She had not carried out any assessment ofher headaches. It was purely an assessment of her functionality on the day that shecarried out the assessment.140. That concludes the summary of all the evidence given in this case.The Application pursuant to s. 26 Of The Civil Liability & Courts Act, 2004Page 31 ⇓141. At the conclusion of the case, Mr. Lynch SC on behalf of the defendant made anapplication that the Court should dismiss the plaintiff’s action on the basis that she hadsworn an affidavit of verification in respect of her claim for loss of earnings, whichaffidavit she knew was false or misleading in a material respect and that she knew it to befalse or misleading when swearing the affidavit.142. The basis for this application arose out of Supplemental Particulars of Loss which wereserved on behalf of the plaintiff on 25th May, 2019. In those supplemental particulars,the plaintiff put the defendant on notice that she had been assessed by a firm ofrehabilitation consultants and their findings had been particularised in particulars whichhad been previously delivered to the defendant. The particulars went on to state thatbased on the vocational and rehabilitation assessment carried out on the plaintiff, theywere now in a position to give the capital value of her future income loss as calculated bytheir consulting actuary. The supplemental particulars went on to effectively paraphrasethe report which had been furnished by the actuary, Mr. Nigel Tenant. His report had setout a range of figures based on various assumptions as to whether (a) she continued inher current position with her employer, KBC Bank, (b) she was promoted to the positionof section manager within the bank and (c) she was promoted to the position of sectionmanager and was on the maximum pay scale applicable to that role.143. The supplemental particulars made an assumption that if the plaintiff could work two daysper week for her employer at her pre-accident rate, she would have an earning capacityof ⅖ of her previous salary of €44,500 gross per annum. Based on these assumptions, arange of losses for the remainder of her life was given at €501,468; €852,566; or€1,116,830. The particulars then went on to specify what deductions and allowances hadbeen allowed for in reaching these calculations. Finally, the report prepared by theactuary dated 20th May, 2019, was enclosed with the supplemental particulars.144. On 20th September, 2019, the plaintiff swore an affidavit of verification in which sheswore that the assertions, allegations and information contained in the SupplementalParticulars of Loss dated 22nd May, 2019, which were within her knowledge, were true.Furthermore, she swore that she honestly believed that the assertions, allegations andinformation contained in the supplemental particulars, which were not within herknowledge, were also true.145. It is noteworthy that in a further notice of Supplemental Particulars of Loss dated 9thOctober, 2019, the plaintiff modified the claims set out in her previous SupplementalParticulars of Loss by stating as follows:“(1) The plaintiff continues to be out of work due to her injuries, indicative values forthe capital value of the plaintiff’s possible future income losses were previouslyfurnished herein on 22nd May, 2019. The indicative values which were furnishedfor the assistance of the Court were based on assumptions which may be variedsubsequently by medical evidence as regards the plaintiff’s prognosis andproportion of disability attributable to the accident.Page 32 ⇓(2) A suggestion has been that the plaintiff may be ready for a graduated return towork in the future with a view to resuming fulltime work. The plaintiff awaits a finalrecommendation from her medical advisors in this regard. The issue of theplaintiff’s capacity for any graduated return to part time or possibly eventualfulltime work is under consideration and will be subject to medical evidence andadvice.”146. The plaintiff swore an affidavit of verification in respect of the Supplemental Particulars ofLoss dated 9th October, 2019, on 10th October, 2019.147. When opening the case at the commencement of the hearing of the action, Mr.O’Mahoney SC on behalf of the plaintiff stated that while at its high water mark theplaintiff’s claim for loss of earnings came to approximately €1.1m, that was based on theassumption that the plaintiff had a severely restricted earning capacity for the rest of herlife. He stated that he was not in fact seeking damages that level. It would be a matterfor the Court as to what figure should be awarded for future loss of earnings, based onthe medical evidence which would be given in relation to her future capacity for work.148. Finally, on the second day of the hearing of the action on 15th January, 2020, the plaintiffserved a notice of further Supplemental Particulars of Loss setting out various figureswhich would be applicable if the plaintiff made a graduated return to work over the nexttwo years.149. Senior counsel for the defendant stated that in circumstances where the plaintiff hadnever formally withdrawn her claim to future loss of earnings at its high water mark of€1.1m, and where the evidence led on behalf of the plaintiff at the trial was to the effectthat the plaintiff should be able to make a phased return to work over the next two years,the affidavit of verification which she had sworn on 20th September, 2019, in respect ofthe Supplemental Particulars of Loss dated 22nd May, 2019, which included the range offigures for future loss of earnings up to a maximum of €1.1m, was a false and misleadingaffidavit within the provisions of section 26(2) of the Civil Liability & Courts Act 2004. Ineffect, he submitted that the plaintiff swore an affidavit of verification in respect of aclaim for future loss of earnings, which she clearly knew was not maintainable at the timethat she swore that affidavit. If the Court were to hold with him on that submission, thensection 26 of the 2004 Act mandated that the entirety of the plaintiff’s claim should bedismissed.150. In the alternative, senior counsel submitted that even if the Court did not hold with himon that application, the swearing of such affidavit in those circumstances, had to be ahuge issue on credibility for her claim, as it constituted a vast overstatement of herposition in relation to her loss of earnings.151. In response, Mr. Creed SC on behalf of the plaintiff submitted that the defendant’sapplication was entirely misplaced. He submitted that the Court had to have regard tothe specific provisions of the subsection which provided as follows at section 26(2) of the2004 Act:Page 33 ⇓“(2) The Court in a personal injuries action shall, if satisfied that a person has sworn anaffidavit under section 14 that –(a) Is false or misleading in any material respect, and(b) That he or she knew to be false or misleading when swearing the affidavit,Dismiss the plaintiff’s action unless, for reasons that the Court shall state inits decision, the dismissal of the action would result in injustice being done.”152. Counsel submitted that not only would the Court have to find that the affidavit ofverification was false and misleading in a material respect, but would also have to findthat the plaintiff knew it to be false or misleading when swearing the affidavit. Hesubmitted that there was no basis on which the Court could reach a finding against theplaintiff on either, or both of those requirements.153. Counsel further submitted that when one had regard to the Supplemental Particulars ofLoss dated 22nd May, 2019, all they were doing was putting the defendant on notice ofthe capital value of the plaintiff’s future loss of earnings claim in the event that the Courtwere to hold that her earning capacity was substantially diminished for the remainder ofher life. That had been established as a result of the vocational assessor’s report, whichhad already been furnished to the defendant. All the Supplemental Particulars of Lossdated 22nd May, 2019, did, was to furnish the defendant with notice of the actuary’scalculations of the capital value of her future loss of earnings based on variousassumptions as to whether or not she would have gained various promotions in theinterim. The particulars were doing no more than setting out the content of the actuary’sreport and indeed a copy of that report was furnished with them.154. Mr. Creed SC submitted that it was entirely permissible and commonplace for plaintiffs toput forward a range of figures for future loss of earnings based on various contingenciesas to whether they were likely to have got various promotions but for the injuriessustained in the accident and to take account of other contingencies, such as futureearning capacity.155. Counsel further submitted that the Court had to have regard to the further particulars ofloss which were served on 9th October, 2019, which made it clear that the figures givenin the previous notice were indicative values for the capital value of the plaintiff’s possiblefuture loss of income. Finally, he submitted that the plaintiff had never made the case atthe trial that she would never work again and accordingly the figures which had beengiven in her pervious particulars of loss of income were irrelevant, having regard to theevidence tendered at the trial of the action. In these circumstances it was submitted thatthere was no basis on which the Court should make an order pursuant to section 26 ofthe 2004 Act dismissing the plaintiff’s action.Conclusions on the s. 26 Application156. Having considered carefully the impugned pleadings in this case and the submissions ofcounsel on the application that the Court should dismiss the plaintiff’s action pursuant toPage 34 ⇓section 26 of the Civil Liability & Courts Act 2004, the Court is satisfied that there is nobasis for that application. The Court has reached that conclusion for the followingreasons. The Court is satisfied that at the time when the Supplemental Particulars of Lossdated 22nd May, 2019, were served, there was a basis on which the plaintiff couldreasonably put forward the case that she would never be able to work more than twodays per week for the rest of her life. That conclusion was based on the report furnishedby O’Sullivan & Devine, rehabilitation consultants; the conclusions in their report hadbeen set out in previous supplemental particulars, which had been served upon thedefendant. The notice of Supplemental Particulars of Loss dated 22nd May, 2019, merelyset out the capital values of the future loss of earnings based on the scenario aspresented by the vocational assessors. In other words, all the particulars of loss did wasto set out what the capital value of that loss would be in the event that the plaintiff wasonly able to work for two days per week and therefore there would be a loss of earningsdepending on whether one took her future earnings to be measured against her earningsat the time of the accident, or took account of a possible promotion to the position ofsection manager on the minimum wage applicable, or was promoted to that role on themaximum applicable salary.157. The particulars then gave a range of figures whereby the loss was calculated dependingon which level of earnings was used. Effectively what the Supplemental Particulars ofLoss were doing, was merely paraphrasing the content of the actuary’s report. A copy ofthe actuary’s report was furnished along with the Supplemental Particulars of Loss. Iaccept the submission made by Mr. Creed SC on behalf of the plaintiff that it is usual andappropriate practice for a plaintiff to deliver particulars of loss on that basis. This putsthe defendant on notice of the range of figures that may be allowed by the Court,depending on what findings the Court should make in relation to the future earningcapacity of the plaintiff. Those findings would only have been made when the Court hadhad the opportunity to hear both the plaintiff’s doctors and the defendant’s doctors inrelation to her capacity for work in the future. Accordingly, it seems to me that it is quitenormal and appropriate to give a range of figures in this regard.158. The point was made by senior counsel on behalf of the defendant that in swearing theaffidavit of verification on 20th September, 2019, in respect of those SupplementalParticulars of Loss, which contained a claim for the capital value of future loss of earningsat a high water mark of €1.1m, the plaintiff had sworn an affidavit that was false ormisleading in a material respect and when she knew that it was false or misleading at thetime that she swore the affidavit. I do not see any basis for that contention. Thequestion of the plaintiff’s future earning capacity and by extension, her future loss ofearnings, was a matter that was somewhat up in the air at the time that she swore theaffidavit. This was due to the fact that the question of her future capacity for work wasonly being clarified as one approached the hearing of the action.159. In the event that there was any confusion in that regard, I am satisfied that theSupplemental Particulars of Loss served on 9th October, 2019, which clearly put thedefendant on notice that the previous figures given in the notice dated 22nd May, 2019,Page 35 ⇓were purely indicative values and would be dependent on the medical evidence to begiven at the trial of the action, made it clear to the defendant that this was an evolvingsituation which had yet to be clarified. I am satisfied that in these circumstances therewas no attempt by the plaintiff to make a claim to a level of damages for future loss ofearnings to which she was not entitled. She had merely pleaded her future loss ofearnings at a range of values, including up to its high water mark and had made it clearthat the ultimate figure that would be claimed by her would be dependent upon themedical evidence to be given at the trial of the action.160. That position had been made clear in the Supplemental Particulars of Loss delivered on9th October, 2019, and was reiterated in the opening statement of senior counsel onbehalf of the plaintiff at the commencement of the hearing of the action. In thesecircumstances, there is no basis for the assertion that this plaintiff has attempted tomislead either the defendant or the Court by swearing the affidavit which she did on 20thSeptember, 2019, in respect of the Supplemental Particulars of Loss dated 22nd May,2019, and accordingly I refuse the defendant’s application.Conclusions161. Having considered the extensive evidence in this case as outlined earlier in this judgment,I have reached the following conclusions on the substantive issues between the parties. Iam satisfied from the evidence given by Mr. Lim that the surgical treatment which theplaintiff had for the Chiari 1 malformation on 1st June, 2016 was serious surgery, whichinvolved considerable disruption to the bones at the base of the plaintiff’s skull and at thetop of C.1 and also involved substantial displacement of the muscles and ligaments in herneck. Accordingly, I find that her neck was significantly compromised as a result of thatoperation.162. I accept the evidence of Mr. Lim that at the six-week assessment post-surgery and whenhe saw the plaintiff two weeks later, she was making good progress in her rehabilitationfrom the surgery. I accept the evidence of Ms. Ormond that from her assessmentscarried out on 29th July, 2016, 5th August, 2016 and 22nd August, 2016, that theplaintiff was improving. Based on this evidence, I find that the plaintiff had been makinggood progress post-surgery and was following the expected recovery path after suchsurgical treatment up to the time of her involvement in the road traffic accident on 27thAugust, 2016. I find that but for the road traffic accident, that in all probability theplaintiff would have made a full recovery from the surgery within approximately sixmonths from the date of surgery and that she would have returned to work at that stage,meaning that she would have returned to work in or about January, 2017.163. I find that the plaintiff’s condition deteriorated significantly as a result of the RTA on 27thAugust, 2016. That conclusion is reached on the evidence given by Ms. Ormond, who sawthe plaintiff both before and after the accident. I accept her evidence in relation to theassessments which she carried out of the plaintiff both pre- and post-accident. Indeed,her assessments and findings at that stage, were accepted by the defendant’s witnesses.The fact that there was marked deterioration in the plaintiff’s condition is furthersupported by the action taken by Ms. Ormond in referring the plaintiff back to Mr. Lim duePage 36 ⇓to such deterioration. It is also supported by the decision made by Mr. Lim afterreviewing the plaintiff on 13th October, 2016 to refer her to the pain specialist, Dr.Harney. From this evidence, which I accept, it is clear that there was a markeddeterioration in the plaintiff’s condition in the weeks and months following the accident.164. The defendant accepts a number of important things in this case. Firstly, she acceptsthat the plaintiff was a bad candidate for a soft tissue injury to her neck due to her beingin the post-operative stage after significant surgery to her neck, at the time of theoccurrence of the accident. Secondly, she accepts that some soft tissue injury to theneck was caused by the RTA. However, based on the evidence of the car damage asprovided in the photographs of the vehicles after the accident and the repair bill in respectof the repairs to the vehicle in which the plaintiff was travelling, the defendant disputesthat any major forces were inflicted upon the plaintiff’s neck in the collision andaccordingly disputes that any major injury was caused thereby. Thirdly, and perhaps ofmost importance, the defendant’s witnesses accepted that the plaintiff has the symptomsof pain of which she complained at the hearing of the action. They do not allege that shewas deliberately exaggerating her symptoms.165. I do not think that one can extrapolate from the photographs of the car damage thatthere was not a significant impact between the vehicles. There was no engineeringevidence called by either side in relation to the forces that may have been transmitted bythe impact between the vehicles in this case. Accordingly, I must do the best that I canon the evidence before me. The only evidence of the actual impact, was that given by theplaintiff. Neither the first named defendant, nor the third named defendant, were calledto give evidence at the hearing of the action.166. I accept the plaintiff’s evidence that she heard a loud bang upon impact and felt her headbeing propelled forward and then backwards, and that she struck her head against theheadrest. It is also significant that the plaintiff suffered an injury to her right knee, whenit struck against the dashboard as a result of the impact. That injury was documentedafter the accident. It is indicative of the fact that the impact was significant.167. In considering the effect of the impact and its ability to cause the injuries of which theplaintiff complains, one has to keep in mind that the plaintiff’s neck was significantlycompromised at the time of the accident. The Court cannot make assumptions as to thelikely degree of injury that may arise from a low speed impact between the vehicles,because the plaintiff was not in a healthy state at the time that the trauma was inflictedon her neck. Accordingly, one has to be wary of making assumptions as to how a normalhealthy person might or might not react to such a collision and applying such assumptionsto the plaintiff.168. In fairness to the defendant’s medical experts, they do not base their opinions solely onthe photographs of the car damage and the repair estimate; they also base their opinionson the fact that the scans taken of the plaintiff’s neck after the accident were largelyclear, allowing of course for the changes thereon which were due to the previous surgery.They also base their opinion on the findings made by Professor O’Sullivan and Mr. Kaar ofPage 37 ⇓full movement in the plaintiff’s cervical and lumbar spine when they examined theplaintiff. However, one has to remember that these doctors saw the plaintiff on oneoccasion each in respect of this case in April, 2018 and August, 2019 respectively.169. I prefer the findings of Dr. Harney and Dr. Sean O’Sullivan, which were made much closerto the time of the accident. In addition, they had the benefit of seeing the plaintiff farmore frequently over the following years. Based on their evidence, I am satisfied that theplaintiff’s condition deteriorated significantly in the days and weeks following the accidentto such extent that Ms. Ormond referred the plaintiff back to Mr. Lim. When he saw theplaintiff on 13th October, 2016, he was sufficiently concerned to write a referral letter toDr. Harney on that date.170. In addition, it is noteworthy that immediately prior to the accident the plaintiff’scomplaints largely concerned neck and shoulder pain and headaches, whereas post-accident she also complained of thoracic and lumbar pain and knee pain, together with adeterioration in her neck pain and headaches. I am satisfied that the findings made byDr. Harney in November, 2016 were consistent with a soft tissue injury to the spinecaused by the road traffic accident. The fact that her presenting symptoms weresignificant is evidenced by the fact that Dr. Harney commenced treatment of the plaintiffin December, 2016. It is also significant that he found tenderness in the area of theoccipital nerve. The treatment administered by him in December, 2016 was designed totreat the plaintiff’s headaches. I am satisfied that these were cervicogenic in nature andwere caused by the RTA.171. Accordingly, I find that the plaintiff’s condition was significantly exacerbated by the RTA inAugust, 2016 in terms of her neck and shoulder pain and headaches and also by theadditional new complaints in relation to thoracic and lumbar pain and knee pain.172. It is undeniable that the plaintiff has undergone extensive invasive treatment from Dr.Harney and Dr. O’Sullivan, which was both painful and distressing for her. I accept theevidence of the GP, Dr. Donovan, that in making referrals to specialists, GPs are doingtheir best to treat their patients’ symptoms. In administering treatment, the specialistsare also doing their best to alleviate the patient’s pain and disablement. I accept theevidence of Dr. Harney that he would only do treatment which he felt was warranted.While some of the defendant’s doctors may have questioned both the level and nature ofthe invasive treatment given to the plaintiff, that is a difference of opinion betweendoctors. It does not mean that the plaintiff was wrong to undergo the treatment that wasadvised to her by Dr. Harney and Dr. O’Sullivan. Merely because one of the defendant’sdoctors, who saw her on only one occasion, may have treated her differently, is notrelevant to the question that this Court must consider.173. Both Mr. Kaar and Professor O’Sullivan accepted that the plaintiff was suffering thesymptoms of pain of which she complains at the present time. There has been nosuggestion that she has deliberately or consciously sought to exaggerate her symptoms,or fraudulently claim compensation for injuries that are not genuine.Page 38 ⇓174. The defendants main attack on the plaintiff’s case is on two grounds: firstly, they say thatsuch a minor impact could not have caused the injuries complained of by the plaintiff.However, I am satisfied from the plaintiff’s progress from the surgery in June, 2016 up tothe time of the accident in August, 2016 and from the onset of the deterioration in hersymptoms, together with new symptoms after the accident, that on the balance ofprobabilities, that deterioration and the onset of new symptoms were caused as a resultof the accident, notwithstanding that there may have been a relatively minor impactbetween the vehicles.175. The Court is concerned by the findings made by the defendant’s doctors that the plaintiffhad a good range of movement in her spine when they examined her. The plaintiff wasseen by Professor Michael O’Sullivan on 27th April, 2018, at which time he found that shehad a full range of movement in her neck, shoulders and lower back. Those findings haveto be seen in the context that only seven days earlier on 20th April, 2018, the plaintiffhad been seen by Dr. Harney in the Bon Secours Hospital, where she had received PRFLto the left suprascapular nerve and left-sided C2 – C6 diagnostic facet joint blocks.According to Ms. Ormond, the plaintiff had reported a decrease in her cervico-thoracic andscapular pain after that treatment. That improvement lasted until May when, possiblydue to the use of crutches for her fractured toe, she reported a negative impact on herneck condition. Accordingly, it would appear that the findings made by ProfessorO’Sullivan, were probably due to the beneficial effect of the treatment administered byDr. Harney on 20th April, 2018.176. When the plaintiff was seen by Mr. Kaar on 13th August, 2019, he recorded that she hada good range of movement in her neck, although she complained of some soreness in themid-cervical area and in the left trapezius. There was no muscle spasm or tilting. Therewas restriction of extension in the lower back, but flexion was good. Those findings haveto be contrasted with the findings recorded by Dr. Harney when he saw the plaintiff twomonths earlier on 11th June, 2019, at which time she reported ongoing severe left- andright-sided lower back pain, left-sided neck pain and left shoulder pain. She reported thather headaches were very severe. Clinical examination on that occasion, revealedtenderness in the facet joints on the left and right side at L3 – S1, marked tenderness ofthe facet joints on the left side at C3 – C6 and also reduced movements of the leftshoulder in adduction internal rotation and adduction external rotation. There was alsotenderness in the distribution of the left and right greater occipital nerves and nuchal linetenderness left and right side at C3 – T1. There was no evidence of nerve root tensionsigns in either right or left upper limb, or right and left lower limb.177. The findings made by Mr. Kaar also contrast sharply with those made by Dr. SeánO’Sullivan when he saw the plaintiff on 3rd September, 2019, which was about threeweeks later, at which time clinical examination revealed tenderness to palpation over theposterior cervical muscles and left shoulder muscles including the trapezius. There was areduced range of horizontal neck movement beyond 60 degrees from the midline,particularly looking over the left shoulder.Page 39 ⇓178. When examined later that month on 25th September, 2019, by Ms. O’Mahoney, there waslimitation of movement of the lower back in flexion and extension, which was limited byan increase in pain. The plaintiff had normal range of movement in the lower back onlateral flexion, but reported an increase in pain when performing that movement. Therewas limitation of movement of the neck in flexion and extension with a reported increasein pain. Right rotation was normal, with an increase in reported pain and there was areduction in left rotation of the neck. Ms. O’Mahoney further noted that on carrying outcertain tasks, the plaintiff appeared to demonstrate a greater range of movement in theaffected areas, than she had admitted to during the examination.179. In considering this aspect of the case, the Court accepts the evidence given by theplaintiff’s medical advisors, and in particular by her Cork based GP, Dr. Donovan, and hertreating physiotherapist, Ms. Ormond, that she is a genuine and well-motivated patient.Insofar as there is a conflict of evidence between the two doctors who examined theplaintiff on behalf of the defendant and the plaintiff’s medical advisors in relation to herdisability and in particular the range of pain free movement of her spine, I prefer theevidence of the plaintiff’s doctors and physiotherapist in this regard. I am satisfied thatshe has followed a fluctuating course, whereby her symptoms have waxed and wanedover time, but overall I am satisfied that she has experienced the pain and disablementas described by her in her evidence and as described by the various medical witnesseswho gave evidence on her behalf.180. The second area of attack is that even if it is accepted that the plaintiff was a badcandidate for an accident involving injury to her neck, any soft tissue injury thereto wouldhave been of relatively short duration, such that her ongoing complaints can only beexplained by the fact that she has engaged in catastrophic thinking in relation to her levelof pain and disability; such that her pain levels are not as high as she thinks and she isnot as restricted in her movements as she thinks.181. According to Mr. Kaar, chronic pain is a disease in itself, not a post-traumatic condition.He is of the opinion that the plaintiff had that disease prior to the accident, as evidencedby her overreaction to striking her head against the electricity box in November, 2015and going out of work in January, 2016. He is of the opinion that the plaintiff’s currentcomplaints of pain, which he accepts, are due to this disease, rather than to any softtissue injury suffered in the accident. His hypothesis on this aspect is supported by thefindings of Ms. O’Mahony on her administering of the catastrophic pain scale.182. In considering this issue, I do not think that the plaintiff is deliberately catastrophizingeither her injuries, or her symptoms of pain. I accept the evidence of Dr. Donovan, whohas known the plaintiff since childhood, that she is a genuine, well-motivated person, whois keen to get back to a normal life and to return to work. That opinion is supported bythe evidence of Ms. Ormond, who stated that the plaintiff was at all times compliant inrelation to her treatment regime and was keen to get back to work as soon as hersymptoms would allow. That is also supported by the fact that the plaintiff made contactPage 40 ⇓with her employer to enquire about the possibility of returning to work on a phased basisand/or part time basis.183. All the evidence before the Court has been that the plaintiff has been compliant with alltreatment regimes prescribed to her. She has undergone extensive treatment from thepain specialist and from Dr. O’Sullivan. She has had extensive physiotherapy treatmentfrom Ms. Ormond, acupuncture treatment from Dr. O’Connell and cognitive behaviouraltherapy from Mr. Hurlihy. She has engaged in swimming and walking in an effort torehabilitate. She has taken extensive oral medication as prescribed. She has attemptedto be active by engaging in an eight-week interior design course and a six-weekmindfulness course. She has also assisted friends with the preparation of their CVs.There is no evidence before the Court that the plaintiff has ever engaged in any activitieswhich were incompatible with her reported restrictions.184. It is also noteworthy that the plaintiff is very well educated. At the time of the accidentshe was doing well in her job with KBC Bank. She was in a steady relationship with herboyfriend, which has lasted to the present time. There was no history of any psychiatricillness. Life was going well for her. In these circumstances the Court is satisfied thatthere is no question that the accident may have provided a convenient “bus stop” for herto leave her pre-accident life and adopt a different lifestyle.185. Having watched and listened to the plaintiff give evidence, the Court is satisfied that theplaintiff did not attempt to exaggerate her level of disability. She gave evidence in a calmand rational manner. She did not put on an act for the Court by grimacing, rubbing herneck or back, or not turning her neck. Indeed, when that very fact was put to her incross-examination, she said that while she had managed to give evidence for a number ofhours in the witness box, she had experienced severe pain when she went home and hadhad to go to bed. The Court accepts that evidence.186. On the issue of whether the plaintiff’s symptoms of chronic pain are due to the road trafficaccident, or are a separate disease in itself as postulated by Mr. Kaar, the Court prefersthe evidence of the plaintiff’s treating doctors: Dr. Harney, Dr. O’Sullivan and Dr.Donovan and the evidence of her treating physiotherapist, Ms. Ormond, who are all of theview that her symptoms stem from the road traffic accident. Their evidence is supportedby the temporal onset of symptoms after the accident. The fact that the symptoms havelasted for a longer time than may be the norm, can be explained by the fact that theplaintiff’s neck was in a significantly weakened state at the time of the accident.187. I accept the evidence of Dr. Sean O’Sullivan that the fact that the plaintiff’s MRI scans arelargely clear, is explicable by the fact that damage may occur at a cellular level, whichcan produce symptoms, while not showing on imaging. It is also noteworthy that theopinions expressed by the defendant’s witnesses were based on one examination by eachof them of the plaintiff at a considerable remove from the date of the accident; whereasthe evidence from the treating doctors was based on their interaction with the plaintiff ona large number of occasions over a protracted period. In such circumstances, the Courtprefers their opinion of the extent and causation of the plaintiff’s symptoms.Page 41 ⇓188. However, even if I am wrong in that, if I were to accept the defendant’s medical evidenceat its high water mark and find that her ongoing pain and disablement are largely causedby psychological factors, such as an over estimation of perceived or anticipated pain;once a Court can be satisfied that a plaintiff is not deliberately exaggerating ormalingering, and of that I am satisfied in this case, the defendant has to take her victimas she finds her. In other words, if the victim happens to be a person, who had hadsignificant surgery to her neck in the weeks prior to the accident and if I were to acceptthat she were prone to suffer chronic pain due to her tendency to catastrophic thinking,as long as that was not done deliberately, the defendant must compensate the plaintiff forthe chronic pain from which she suffers.189. In the paper referred to by Ms. O’Mahoney, “The Pain Catastrophizing Scale:Development and Validation” by Sullivan et al., the authors came to the conclusion thatmagnification, rumination and helplessness appeared to be the features which determinedwhich patients were likely to be catastrophizers. While their reaction to pain may well bedifferent to that of other patients, the pain is nevertheless real. In the general discussionpart of the paper the authors stated as follows:“Although the present study was not intended as a test of a particular theoreticalmodel linking the different dimensions of catastrophizing, at a descriptive level,magnification, rumination and helplessness share features with primary andsecondary appraisal processes that have been discussed in relation to coping withstress (Jensen et al., 1991; Lazarus & Folkman, 1984). For example, magnificationand rumination may be related to primary appraisal processes in which individualsmay focus on and exaggerate the threat of a painful stimuli. Hopelessness may berelated to secondary appraisal processes in which individuals negatively evaluatetheir ability to deal effectively with painful stimuli. Indeed, Jensen et al. (1991)have proposed that catastrophizing may be viewed as a negative appraisal of pain.As a function of a learning history characterised by excessive exposure to painfulsituations or exposure to others’ catastrophic reactions to pain, individuals maydevelop enduring beliefs or schema about the high threat value of painful stimuli orabout their inability to effectively manage the stress associated with painfulexperiences (Turk & Rudy, 1992). The high test – retest correlations of the PCS(pain catastrophizing scale) are consistent with the position that individuals maypossess enduring beliefs about the threat value of painful stimuli.Rumination accounted for the largest proportion of variance in the PCS. The itemsmaking up the rumination component reflect an inability to suppress or divertattention away from pain – related thoughts. The role of attentional factors incatastrophizing has been noted by several investigators. Heyneman et al. (1990)have reported findings suggesting that catastrophizers may be impaired in theirinability to make effective use of distraction strategies. Spanos et al. (1979) havesuggested that catastrophizers may fail to attend sufficiently to their copingstrategies. It is possible that pain – related thought intrusions or excessive focuson pain sensations may interfere with catastrophizers’ attempts to invoke strategiesPage 42 ⇓to reduce their pain. Indeed the data from Study 2 suggests that catastrophizersuse as many coping strategies as non-catastrophizers; however, forcatastrophizers, the use of coping strategies is not associated with pain reduction.”190. As seen from this extract, previous experience of pain is relevant. In this regard it isnoteworthy that the plaintiff had had an experience of severe neck pain in the five weeksimmediately post-surgery.191. In addition, as noted by Ms. Ormond in her report, a combination of chronic spasm andover activity leading to shortening of the anterior neck musculature and overstretchingand weakening of the posterior neck and scapular muscles, contributes to thedevelopment of postural dysfunction and as a result, the normal lordotic curvature of thecervical spine is caused to be flattened or reversed. She noted that such a finding wasrevealed on the MRI scan of the plaintiff’s cervical spine. She noted that these adaptivesoft tissue changes also result in a gross reduction in active cervical movements whichwere demonstrated on the assessment carried out by her. Thus, it can be seen that thereis an interaction between the mental component and protective postures adopted by theplaintiff, which can actually end up increasing rather than reducing pain in the long term.Thus, while the opinion of defendant’s doctors, that there is a large psychologicalcomponent in the symptoms of chronic pain suffered by the plaintiff, may well be right,that does not of itself mean that the pain which the plaintiff is experiencing does notexist.192. Accordingly, even if I were to find that the plaintiff’s chronic pain is a disease in itself,which was due primarily to psychological factors within the plaintiff, I would have to findthat such chronic pain arose due to the fact that the plaintiff had that inherentpsychological susceptibility at the time that she had her accident. In legal terms shewould be seen as being a person who had an “eggshell skull” and the tortfeasor must takehis victim as he finds him. This principle has long been accepted in Irish law. It wasdescribed in the following terms by Clarke J. (as he then was) in Walsh v. South TipperaryCounty Council [2011] IEHC 503 at paragraph 5.6:“In the oft quoted case of the injured party with the so-called “eggshell skull” itcan, on occasion, turn out that, due to some weakness or predisposition, aparticular injured party suffers much more severe consequences from a relativelyinnocuous incident than might at first sight be expected. However, it again remainsthe case that, if personal injury is a foreseeable consequence of whateverwrongdoing is concerned (say the negligent driving of a motor vehicle), then thefact that those injuries may, in the peculiar circumstances of the case, be muchmore severe than might have been expected does not deprive the injured partyfrom an entitlement to recover whatever may be appropriate for those injuries.”193. I am satisfied that in this case personal injury was a foreseeable consequence of theaccident. That being the case, the fact that the plaintiff may have had a more severeinjury than might be expected in the normal run of cases, due to a predisposition on herpart towards catastrophic thinking, as a result of which she has gone on to suffer chronicPage 43 ⇓pain, does not prevent her recovering compensation from the defendant in respect of thatpain. The defendant had to take this plaintiff as she found her on the day of the accident.Accordingly, I find that even if the hypothesis put forward by the defendant’s medicalexperts were to be accepted, that would not deprive the plaintiff of compensation inrespect of her ongoing chronic pain and disablement.194. It may well be that going forward, the plaintiff’s best route to full recovery may lie in amulti-disciplinary approach, with a strong emphasis on the psychological modalities oftreatment in the form of CBT, specialist mindfulness therapy and also including exercisetherapy as recommended by Ms. Ormond, along with such pain intervention both oral andby injection, as maybe necessary. However, these are decisions for the plaintiff’s treatingdoctors.195. Turning to the issue of damages, I find that following the operation on 1st June, 2016, inthe absence of the road traffic accident the plaintiff would have suffered headaches andneck pain on a diminishing scale for approximately six months. One cannot say forcertain that she would have made a full recovery within that period, but on the evidenceavailable in relation to her condition post-surgery and prior to the time of the accident, Iam satisfied that she was making good progress in that period. However, even withoutthe accident, she would have experienced some symptoms during that six-month periodand would have been unfit for work until the end of the year. Accordingly, for the periodfrom 27th August, 2016 to the end of 2016, the plaintiff is only entitled to becompensated for the exacerbation of her condition which arose as a result of the accident.196. I am satisfied on the evidence, which has been set out in extenso earlier in this judgment,that the plaintiff has suffered constant, and at times severe, pain in her neck, shouldersand lower back since the accident and also had knee pain. In addition, she has hadpersistent headaches, which, according to the evidence of Dr. Sean O’Sullivan, which Iaccept, 50% of these are due to the road traffic accident. In respect of all of theseconditions she has had the extensive treatment as outlined earlier in the judgment.197. I find on the evidence of Dr. Dennehy that the plaintiff suffered depression and post-traumatic stress disorder after the accident. The PTSD was of relatively short duration.The depression was moderate and has been persistent since the time of the accident.The plaintiff continues to be prescribed anti-depressant medication. I have had regard tothe fact that treatment for her psychiatric illness has been given by her GP, who did notfeel that the intervention of a psychiatrist was necessary.198. I accept the plaintiff’s evidence that she has been unfit for work since the accident. I findthat from January, 2017, her inability to work was due to the effects of the road trafficaccident. Her evidence in relation to her inability to work is supported by all the medicalexperts called on behalf of the plaintiff. I prefer their opinion to that of the defendant’smedical witnesses and find that she is indeed unfit for work. I accept their evidence inrelation to the limitations of movement in her cervical spine that they found on thevarious assessments carried out by them. As the treating doctors, they saw the plaintiffon a frequent basis. In addition, having regard to the nature and extent of the treatmentPage 44 ⇓given by Dr. Harney and Dr. O’Sullivan, it is reasonable to presume that the plaintiffwould not have been fit for work in the aftermath of such treatment.199. In terms of the future, the prognosis is somewhat uncertain. Dr. Harney has stated thatin his opinion the plaintiff will require further treatment in the form of ablation of theoccipital nerve and she may need nerve stimulation, which would have to be carried outabroad. Dr. O’Sullivan is hopeful that the most recent treatment which he hasadministered will give lasting benefits. It is hoped that if beneficial results are obtainedfrom this treatment, the plaintiff will be in a position to return to work on a phased basisover the next two years. All the medical witnesses were in agreement that a return towork would have considerable beneficial effects for the plaintiff on a number of fronts.200. On the basis of that evidence, I find that on the balance of probabilities, with theappropriate multi-disciplinary treatment, the plaintiff will make a reasonable recoveryfrom her symptoms of pain, so as to enable her to return to work and lead a relativelynormal life in the next two years.201. In assessing general damages both to date and into the future, I have had regard to theBook of Quantum. However, I have not found it of great assistance in this case, becausethis case involves multiple sites of injury, which were superimposed on an alreadyweakened neck. In addition, there is the existence of psychiatric injury in the form oftransient PTSD and ongoing depression.202. In summary, this young woman has had her life totally disrupted for the last three years.Her injuries have affected her in every aspect of her life. She has been rendered veryconsiderably disabled during this period. She has undergone very extensive treatment.Taking all of these matters into account I award the plaintiff general damages to date inthe sum of €96,000. Having regard to the matters outlined above, I award the plaintiffgeneral damages for the future in the sum of €50,000.203. In relation to special damages, I award the following sums: €17,648.98 for medical andother expenses to date. It was agreed between the parties that in regard to the level ofthe plaintiff’s earnings prior to the time of the accident, her net loss of earnings perannum would amount to €33,315.96. In respect of the period from January, 2017 todate, being three years and two months, I award the sum of €105,480.54.204. The amount to be awarded for future loss of earnings is difficult to assess. We do notknow what progress the plaintiff will make in her attempts to return to work, nor at whatexact time she will be able for various amounts of work, such as two days per week, threedays per week, etc. Having regard to the fact that she has not worked for the last fouryears and given her level of disability at present, it may be necessary for her to startreturning to work slowly, perhaps on a voluntary basis. Perhaps she might find work witha family or friends’ business, or in a charity shop, where she would not have to workunder pressure and where she could take rests and days off as necessary. It may bepossible thereafter to build up to full working in the market place on a phased basis. Ifthe plaintiff were not to work at all over the next two years, she would suffer a net loss ofPage 45 ⇓earnings of €66,631.92. Given her current levels of pain and restriction in activity, Icannot see her earning much in the next year. Thereafter, it is somewhat up in the airwhat her earning capacity will be over the following year. Doing the best that I can, Ipropose to allow 50% of her loss of earnings on a total incapacity basis over the next twoyears, which amounts to a loss of €33,315.96.205. Adding these heads of damages together, gives a total sum of €302,445.48. The plaintiffis entitled to judgment for that sum against the defendants. I will hear the parties onwhether the judgment should be against all the defendants, or only against the firstnamed defendant.