Brennen v. Lissadell Towels Ltd. [2000] IESC 72 (15th November, 2000)

JUDGMENT of Hardiman J. delivered the 15th day of November 2000 [Nem. Diss.] 1. After the hearing of this appeal on the 2nd November, 2000, the court indicated that it would dismiss the appeal and affirm the order of the learned trial Judge (McGuinness J9. The court stated that its reasons would be given at a later date and this I now do. 2. The Plaintiff suffered personal injuries as a result of falling over a timber planter or flower container which had been placed on the footpath leading from ________________________ page break ________________________ -2- the premises of her employers, the defendant company, to their car park. This occurred on the evening of the 11th December, 1995. As a result of this accident the Plaintiff suffered personal injuries which are rather complex in themselves and still more so in their interaction with each other. I am of the opinion that the learned trial Judge’s award in the total sum of £191,881.28 is fully justified in the unusual circumstances of the case. The Plaintiff and her injuries. 3. The Plaintiff is a married lady, born on the 12th May, 1955. She was accordingly 40 years old at the time of the accident. She married at the age of 33 and had three children who at the time of the accident were aged 6, 5 and 3½ years. Her husband is a mechanic. She had excelled at art in Secondary School and had been accepted for a place in the National College of Art and Design Foundation Course, but she did not take it up. At the time of the accident she had been employed in the defendant company for some 22 years, first as an assistant designer and subsequently as a designer. The work related to the computer assisted design of towels. 4. It was common case that she was good at this work and, apart from her wages, derived considerable satisfaction from it. It appears to have been a position which was uniquely suitable to her talents. ________________________ page break ________________________ -3- 5. The most obvious injury she suffered in her fall was an undisplaced fracture of the right radial neck i.e. a fracture of the right elbow. This would normally take six weeks to heal. She was also immediately conscious of pain in her back and of banging the right side of her head off the ground. While recovering from the arm fracture she developed persistent pain over the neck, aggravated by any movement. In the very early days of her recovery she also developed paraesthesiae of her hands and headaches. She continued to complain of these symptoms and of associated clumsiness and loss of grip. 6. The elbow injury healed satisfactorily but with a slight limitation of movement. Her other injuries have continued to trouble her. 7. The Plaintiff was unable to work in the immediate aftermath of the accident. As the months went by her condition appeared to worsen, she had difficulty in holding a pen and said that she would not be able to sit at a stool in front of a computer, and move her neck. She was unable to continue her hobby of painting (she had previously exhibited locally) and tried and failed to produce posters on a few occasions. 8. In this context, as her condition failed to improve and as she was beginning to come to terms with the restrictions on her lifestyle, she began to ________________________ page break ________________________ -4- feel useless and depressed and was eventually recommended by her general practitioner to see a psychiatrist. Despite quite regular visits to the psychiatrist the evidence is that she has become depressed to a quite disabling degree, some details which will be given below. 9. The cause of the Plaintiffs neck pain, loss of grip and clumsiness have been thoroughly investigated by a number of doctors including Mr. T. W. Scannell, Consultant Orthopaedic Surgeon, Mr. Daniel Rawluk, Consultant Neurosurgeon and Dr. Brian O’Moore, Consultant Neuro-Physiologist. MIRI investigation has established that she had disc degeneration at the C5/6 and C6/7 levels with annular bulges and small central disc prolapses. This was at all times a degenerative condition and will be further discussed below. However, there was no evidence of compression of the spinal chord or of the nerve roots. It was also considered whether her neck and hand symptoms were referable to a carpal tunnel syndrome, but there was no evidence of this condition on Dr. O’Moore’s electrical tests. This condition corresponds clinically to the symptoms described but has not been positively diagnosed due to the lack of objective evidence. 10. These conditions have given rise to pain and insomnia which also fed into the depressive condition. She also has a condition of the jaws involving ________________________ page break ________________________ -5- clicking on full extension which, according to Mr. Frank Brady, Consultant Maxilo-Facial Surgeon, are of a soft tissue nature and are contributed to in large part by ongoing stress and depression. 11. There was no serious challenge to the description of the symptoms or their having been caused by or (in the case of the neck and associated injuries) accelerated by the accident. Nor was there any contradiction of the evidence that the Plaintiff is now a chronic pain sufferer. Employment Position . 12. The Plaintiff was in receipt of a gross weekly wage of £191.00 at the time of the accident. At the time of the trial she was in receipt of £90.30 per week disability benefit which the learned trial Judge disregarded in making the appropriate calculations and from this decision no appeal has been taken. She was purportedly made redundant by the Defendant in March, 1996, though this was denied in evidence by Mr. Nolan, an officer of the defendant company, in cross-examination. In further cross-examination it was established that a lady who was formerly the Plaintiffs assistant was taken on by the company (despite financial difficulties which it experienced) on a part time basis, and was being paid £40.00 a day in this capacity. Significantly, it was agreed by him that the Plaintiff should have been contacted about this opportunity and if ________________________ page break ________________________ -6- she had been, “seniority would have allowed her to obtain the part time position”. The Award . 13. The learned trial Judge’s award of damages was composed as follows:- 14. Agreed special damages £2,306.65. 15. Special damages £1,907.00. 16. Loss of earnings to date £14,163.00. 17. Loss of earnings for the future £43,554.00. 18. General damages (a) pain and suffering to date £70,000.00. (b) pain and suffering in the future £60,000.00. TOTAL £191,881.28 The Appellant’s complaints . 19. The Appellant has complained of each of the sums awarded for general damages and of the sum awarded for future loss of earnings. £70,000, the Appellant said, was excessive for three years pain and suffering, and it was logically inconsistent to award a greater sum for the past than for the future. It was said that the prospect of recovery had been understated by the learned trial Judge, particularly in relation to the depression. In relation to future loss of ________________________ page break ________________________ -7- earnings, it was submitted that the Plaintiffs job was effectively gone from March 1996 and that, while it was open to the Judge to accept that some form of other employment would have been available to the Plaintiff, she erred in concluding without evidence that this would have yielded £120.00 a week. She also failed adequately to discount the sums totalled for the possibilities that the Plaintiff might not have returned to work at all, might have recovered, or might have become disabled in any event, independent of the accident. Independent degenerative change . 20. The last submission related to the facts proved by the medical witnesses in relation to the Plaintiffs pre-existing degenerative condition, described above. This raised the issue of the extent to which, and the time at which, the Plaintiffs neck and associated symptoms would have arisen in any case. Mr. Scannell agreed with an opinion expressed by Mr. Rawluk that “in this regard, the symptoms provoked by her accident could represent a premature onset by approximately five to ten years”. That, in fact, is the most favourable statement of the position from the Defendant’s point of view: Mr. Scannell himself had originally said that “she would pro bably just have been aware that she has more stiffness in her neck probably in five to ten years from the date of her injury......” ________________________ page break ________________________ -8- Approach to this appeal . 21. The role of this Court on the hearing of appeals such as the present has been authoritatively considered in the case of Hay v. O’Grady [1992] 1 IR 210. The matters are usefully dealt with in five numbered paragraphs in the judgment of McCarthy J. commencing at page 217. These include:- (1) “An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial. (2) If the findings offact made by the trial judge are supported by credible evidence, this court is bound by those findings, however voluminous andj apparently weighty the testimony against them. (3) an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection offact and a dfferent inference has been drawn by the trial judge”. 22. In this context it may be noted that the Defendant called no medical evidence and did not seriously challenge the main lines of the Plaintiff’s evidence. ________________________ page break ________________________ -9- The trial Judge’s findings . 23. The learned trial Judge made a number of findings of fact of which the following appear to be central:- “....the Plaintiff appears to be significantly disabled in a rather complex way with the interaction between her pain in her neck and shoulders and the depression which she is suffering. I think the key problem is that she had a career and a job that was very important to her and was very interesting and that she has lost all of that.....” and: “It is noticeable that there is a general lack of ordinary optimism on all of the medical sides, whether physical or psychological.” 24. In relation to loss of earnings the learned trial Judge held:- “This lady as I have said is suffering from a serious and continuing disability. On the other hand, the main feature of her disability, as far as pain is concerned, is the problem about her cervical spine. I would have to take into account what Mr. Rawluk said as a result of the MRI scan. I am willing to take a figure of ten years but I think that by the end of ten years she probably would have been disabled in any case. And I am not prepared to give a figure going into the future up to her retirement date at 65 or 60”. ________________________ page break ________________________ -10- 25. I believe that these findings of fact are perfectly reasonable and indeed moderate. There was of necessity an element of speculation as to when degenerative changes would have become seriously symptomatic. The learned trial Judge rejected the Plaintiff’s contention that she was entitled to damages for loss of earnings for a full working life and instead opted for the longer of the periods envisaged by Mr. Rawluk and Mr. Scannell before, as a mafter of probability, serious symptoms would have arisen. She was quite entitled to do this on the evidence. 26. In relation to loss of earnings the learned trial Judge was quite entitled to accept the evidence of Miss Keenan, Rehabilitation Consultant that, had the Plaintiff been made redundant while uninjured, she would have got alternative employment, probably in the desktop printing trade. She held:- “..... I have no evidence with regard to the wages that she might have got in that job. But I will accept a compromise figure of £120.00 net per week as likely possible earnings that she could make. Now it may well be that she could have made more than that but I have no evidence before me of that. She is a talented woman and hopefully she may be able to earn in the future....” ________________________ page break ________________________ - 11 - 27. On all the evidence, in eluding that of Miss Keenan of the Plaintiff’s excellent work record and talents, it was a moderate assumption. 28. In relation to the significant general damages awarded, it seems to me that there was strong medical evidence. Mr. Scannell stated that she had “persistent pain in her neck and shoulders, a tingling sensation in both hands” and that “...... her depression is the most serious problem that I see. And I think this has coloured the whole prognosis for her considerably.” He said that his “general feeling was that she had lost confidence in herself and I felt that these symptoms may last indefinitely”. 29. Dr. Murphy, Psychiatrist, said:- “I am of the opinion Mrs. Brennan did suffer and continues to suffer from a depressive illness and post traumatic stress disorder and severe and persistent pain, all of which has arisen from and are directly attributable to the accident of the 11th December, 1995. She did suffer and continues to suffer very grave pain and very grave psychological damage and psychological distress as a result of the accident. The accident was the most psychologically traumatic experience for her. Her capacity to work and enjoy life has been enormously reduced and she is considerably incapacitated as a result of the accident. It seems highly ________________________ page break ________________________ -12- unlikely that she would be able to return to work as a textile designer. Mrs. Brennan’s experience of the physical and intimate side of her marriage has been considerably impaired”. 30. Dr. Peter Fahy’s evidence was to much the same effect. His prognosis was if anything more pessimistic. He said:- “.... I am afraid things are going to become far more dfficult for her as she grows older. She is a very brave and staunch person and takes a positive view of life even in her grossly debilitated situation, and she needs constant monitoring and support on an indefinite basis and will certainly need home help”. 31. In these circumstances it appears to me that the learned trial Judge’s award for general damages were by no means excessive. The Plaintiff has a condition of constant pain, a significant loss of function and insomnia, all of which contribute to depression and have made it impossible for her to work. This in turn feeds back into the depression. She has in effect suffered the loss of her previous lifestyle, of her independence and her physical integrity. These are serious matters and must have been acutely felt in the earlier stages. With the aid of counselling and medication she has come to terms with them to some degree. She is suffering considerable pain some thirteen years earlier than, on ________________________ page break ________________________ -13- the evidence, it might have been expected to become symptomatic, and it might have become symptomatic only much later or never. The loss of her work plainly means much more to her than the loss of the associated income and this is a real substantial and continuing loss. 32. Considering the sum awarded for general damages as a whole, it seems impossible to criticize it in light of all the evidence. The consequences of this relatively simple accident on the particular Plaintiff were indeed severe. Whether one regards the peak of severity as having already occurred, during the Plaintiff’s period of adjustment to her dramatically altered lifestyle, or as occurring in the future due to the continuation of certain of her symptoms is to some extent a question of impression. Since the overall figure seems proportionate to the complaints, I would not disturb the findings of the learned trial Judge, who saw the Plaintiff and her advisers, on the basis that consideration of the case on paper might suggest a greater incidence of pain and suffering into the future. 33. It should be emphasized that, in this case, the substantial sum awarded to the Plaintiff was justified by the exceptional and, on the whole, uncontested evidence of comprehensive destruction of the Plaintiff’s quality of life, which was quite out of proportion to the original comparatively minor injury to her ________________________ page break ________________________ -14- right radial bone. As a consequence of the combination of depression and post traumatic stress disorder and associated pain, she has suffered the loss of her satisfying and personally rewarding employment and disruption of her family and marital life. Even if the onset of her physical symptoms is to be regarded as an acceleration of the effects of an underlying condition, her depression was considered by her medical advisers to be likely to be permanent. 34. For these reasons I would dismiss the appeal and affirm the order of the learned trial Judge. © 2000 Irish Supreme Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII