Martin v. Byrnes [1999] IEHC 107 (17th February, 1999)

Judgment delivered by Mr. Justice Barr on the 17th day of February, 1999 . 1. The plaintiff is 54 years of age, a married man with four grown up children. He comes from Raphoe, Co. Donegal, where he has resided all his life. On 20th September, 1993 he was involved in a traffic accident in consequence of which he sustained serious personal injuries some of which have given rise to permanent disablement. Liability is not in issue. 2. Mr. Kevin Moran, consultant surgeon, and Dr. Dermot Nugent, consultant psychiatrist, gave evidence on behalf of the plaintiff. In addition, reports from Mr. Aidan Lynch, orthopaedic surgeon, were admitted in evidence. Dr. Desmond McGrath, consultant psychiatrist, and Ms. Jacinta Kennedy, consultant psychologist, gave evidence for the defendants. The injuries sustained by the plaintiff are conveniently summarised in a report from Mr. Moran dated 25th April, 1996 as follows:- "(1) External Head and Facial Injuries (b) Laceration to the right side of his right tempro-parietal region measuring 4 cm. (c) Laceration to the right side of his nose with swelling of his nose. (d) Multiple abrasions and lacerations to jaw and chin and neck. (e) Profuse bleeding from his nose. (2) Surgical emphysema extending along the right side of his chest to the right side of his neck with fractures of the 3rd and 4th right ribs with associated pneumothorax and pulmonary contusion. (3) Compound fracture of the right radius and ulna. (4) Injury to his left leg with 6 cm. laceration to the pretibial surface (5) Neurological deficit as follows: Right 7th cranial nerve palsy upper motor neurone type. Right hemiparesis with increased tone on the right upper and lower limbs. Decreased power in right upper and lower limbs and exaggerated knee and ankle reflexes on the right hand side. In addition, he had a positive Babinsky sign on the right hand side with a negative test on the right hand side. Positive right ankle clonus test." 3. Mr. Moran's report also outlines treatment received by the plaintiff at Letterkenny Hospital, advice from other specialists and his own conclusions in April, 1996. The report continues as follows:- "Following admission I debrided the abrasions to his face and head and sutured the laceration on the right side of his nose and head. I inserted a chest drain for his pneumothorax. Skull x-ray on admission revealed no evidence of fracture or bony injury. Following stabilisation of the patient and because of the persistent neurological signs, I contacted Beaumont Hospital Neurosurgical Department and was advised to have CT Scan performed, which was performed on 23 September 1993 in Derry. This didn't reveal any evidence of intra-cerebral injury. Following further stabilisation of the patient, he underwent surgical procedure by Mr. Lynch on 2 October 1993 as outlined by him to correct the fractures of his right forearm. A subsequent follow-up, which I co-ordinated, in addition to involving Mr. Lynch also involved Mr. Pidgeon in Beaumont Hospital; Mr. Nadaraja in Sligo and Mr. O'Connell in Sligo. He visited Mr. Pidgeon on two occasions - on 10 February 1994 and 14 March 1994 for complaints which included right hemiparesis, vertigo, nasal blockage and bilateral tinnitus. Mr. Pidgeon also found that he had a mild dysphasia with residual right hemiparesis. Consequently, he arranged for him to have further CAT Scan, which was essentially normal. He concluded that there was nothing further he could do apart from rehabilitation. With regard to Mr. O'Connell, he was reviewed because of the gross tiredness and sand grittiness in his eye. Mr. O'Connell didn't find any abnormality. Mr. Nadaraja has outlined conclusions regarding nasal blockage, difficulties with balance and tinnitus (buzzing in his ears) which he attributed to fracture of his nasal bones, dislocation of the nasal septum, as outlined in his report. In addition he said the tinnitus could have been due to the accident. Today his major complaints are as follows:- 1. Weakness on the right side involving upper and lower limbs associated with difficulties in balance and tinnitus. 2. Difficulty breathing through the right side of his nose. 3. Symptoms of mood swings with bad temper, loss of memory, depression, difficulty in sleeping, loss of libido, apathy (severe post-contusional syndrome). Examination reveals deviated nasal septum and a right hemiparesis with increased tone, decreased power, impaired co-ordination, exaggerated reflexes. IN SUMMARY It is now some 32 months following the accident and Mr. Martin continues to suffer from a right hemiparesis, resulting in difficulties with balance, gait, co-ordination and using his right hand. This is further complicated by tinnitus and difficulties breathing through the right side of his nose. He also has severe post traumatic stress syndrome. Although he will continue to make progress he will be left with a significant residual problem in all these areas." 4. In the intervening period since Mr. Moran's report in 1996 the plaintiff has made some modest improvement, but in essence the picture presented by the surgeon at that time is substantially the same and little, if any, further improvement seems likely at this late stage more than five years after the accident, though it is possible that in-patient psychological and pharmacological treatment as envisaged by Ms. Kennedy might be of some help in improving the plaintiff's quality of life but will not affect his physical disabilities which now must be regarded as permanent. 5. I have no doubt that the account given by Mrs. Martin in her evidence as to her husband's situation since the accident is accurate and perceptive. I note that it is also so regarded by Dr. McGrath and Ms. Kennedy. I am satisfied that the end result for the plaintiff is as follows:- 1. He suffered a significant head injury which caused amnesia for about two weeks after the accident and has given rise to:- (a) a right sided weakness which affects his balance and gait to some extent and also full capacity to use his right hand with some loss of gripping power. (b) he has memory difficulties and suffers from anxiety and inability to sleep normally. (c) he is liable to bouts of depression and bad temper. Prior to the accident he led a normal social and working life. He now shuns company, even visitors to his own home. 2. The plaintiff continues to have difficulty in breathing through his right nostril. The fractures of his arm have united satisfactorily and there appears to be no need for removing the plates which Mr. Lynch inserted to secure union of the bones. 3. The plaintiff's condition is now permanent. He will never be fit for work as a painter/decorator or general handyman and by reason of the head injury sequelae and his age he is not fit for re-training in any other sphere of employment. His enjoyment of life has been substantially impaired. There has been some improvement in that regard over the years since the accident and even if the plaintiff has in-patient treatment as envisaged by Ms. Kennedy further progress in that regard is no more than a possibility. 6. Raphoe is an employment blackspot and has been throughout the plaintiff's working life. Prior to the accident he had two sources of income in addition to social welfare. He did some casual painting and decoration work for customers in the town from time to time and he was also the local grave digger. His services in that regard were required twelve to fifteen times a year at a cost of £60 per grave. Due to his defective memory he was unable to give details of his earnings from occasional painting and decoration. 7. On 19th October, 1992, eleven months before the accident, a FAS scheme to provide work for long term unemployed was initiated in Raphoe. The plaintiff joined and thereafter was remunerated by FAS at the rate of £127 gross per week in lieu of his dole money which would have been slightly less. That scheme is still in being and I am satisfied that the plaintiff would have continued in it even though his initial contract was for one year only. I also apprehend that the FAS scheme probably will continue for at least the next decade (i.e. for the balance of the plaintiff's normal working life). The scheme is countrywide in its operation and has had a major success in combating the problem of long term unemployment. Having regard to the fact that so many unemployed people have been taken off the live registered through the scheme, I apprehend that no Government would return a large number of workers to the dole through abandonment of the scheme save in circumstances of dire economic disaster in the economy. It seems to me the probabilities are that the plaintiff, who appears to have been an enthusiastic member of the scheme and hoped for promotion to the rank of foreman or supervisor, would have continued in it for the rest of his working life up to age 65 if the accident had not happened. 8. In the light of the foregoing I assess damages as follows:- 9. Agreed special damages less disability benefit for which credit must be given, net - £ 1,854.00 10. Loss of FAS and grave-digging earnings to date, net of tax - £33,397.00 11. Continuing net loss of earnings taking into account 12. Reddy -v- Bates but excluding casual earnings as a painter/decorator - £50,000.00 13. Pain, suffering and disablement to date - £20,000.00 14. Pain, suffering and disablement in the future including loss of enjoyment of life - £70,000.00 TOTAL £175,251.00 © 1999 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII