Gallagher v. Kelly [1996] IEHC 25 (17th October, 1996)

Judgment of Mr. Justice Declan Budd delivered on the 17th day of October 1996 1. The Plaintiff is a 29 year old photographer having been born on 26th October, 1966. He is a citizen of the United States and was brought up in Tucson, Arizona where he was residing and attending college as well as working in a bicycle shop in 1993. In August 1993, he was visiting Ireland with his friend, Randall Eng, and on 27th August, 1993 at about 11.50 p.m. the Plaintiff, Mr. Eng, Clodagh Bowers and Mary Creedon had arrived by car at the car park behind the old Top Hat Dance Hall opposite the Purty Kitchen. Clodagh Bowers was parking and locking her car while the Plaintiff, Mr. Eng and Ms. Creedon went to cross the road with a view to going to the Purty Loft. The scene is depicted in Paul Romeril's set of seven photographs and his map of the scene drawn from the survey on 14th October, 1994. The evidence of the Plaintiff, Randall Eng, Mary Creedon and Karl Sweeney, the doorman at the Purty Loft, is all to the effect that the Plaintiff and Mr. Eng got out of Clodagh Bowers' car, which was parked to the right of the blue car in photograph 2 on the sea side of the old Top Hat ballroom, now a Fun Factory, and then walked to the city side of the silver light standard to the area where there is a white car parked in the photograph 2. These four witnesses are all agreed that the Plaintiff and Mr. Eng were stationary on the path. Karl Sweeney is particularly clear on this, and I accept his evidence on this, that the two men were waiting. He had noticed Tom Gallagher, who was wearing long hair at the time, looking up and down the road, and Mr. Sweeney said that he was "sizing him up". He described the Plaintiff as being with two people when he left the path and he said that the Plaintiff who was walking at a normal walking pace; it was not slow; it was not fast. He had gone two or there steps from the kerb on the far side when he, Karl Sweeney, turned to his colleague, Paul Carey. Subsequently, he heard skidding and a bang and saw the Plaintiff falling off the bonnet of the Defendant's car. He confirmed that he has a clear memory of the Plaintiff standing and looking up and down the road (before he moved to cross). The Plaintiff was hit by the middle of the front of the Defendant's Ford Cortina car when he, the Plaintiff, was four or five feet short of reaching the path on the Purty Kitchen side. The Plaintiff was thrown up on the bonnet, his body smashed the windscreen of the car and he was carried a distance on the bonnet of the car before ending up in the middle of the left lane, a few feet in front of the Cortina, as one goes towards Dun Laoghaire. The Plaintiff suffered loss of consciousness, a small laceration of his scalp and a serious compound fracture of his left tibia and fibula. He was taken by ambulance to St. Michael's Hospital and was transferred the next day, Saturday 28th August, 1993, to St. Vincent's Hospital where he came under the care of Brian J. Hurson. On Saturday 28th August, 1993, an operation under general anaesthetic was carried out to clean and dress the shin wounds and to manipulate the fractures into satisfactory position. In the aftermath of the operation, the Plaintiff had a persistent high pulse rate. He was kept in intensive care until 31st August, 1993 with a diagnosis and treatment for fat embolism syndrome. In the intensive care unit, he was under the care of Dr. Kieran Crowley and he reports that the Plaintiff was suffering from respiratory distress on 29th August, 1993 and was tachycardic, febrile and unwell. He was returned to the Orthopaedic Ward on 31st August, 1993. He was in full plaster of Paris cast from his groin to his toes. On 7th September, 1993, he was allowed out to the home of Clodagh Bowers where her parents cared for him. He had to return on 9th September, 1993 for a second operation under general anaesthetic. He was released and he recuperated for a time at the home of the Bowers and then made a return trip to the United States. He was helpless and immobile for some time. He had much pain and he had trouble with a swollen left ankle and trouble with his right knee. In late November 1993, he was allowed to bear some weight and move from the full length plaster cast into a below knee plaster of Paris. In late January 1994, the short plaster of Paris was removed but he was still in a plaster of Paris boot. In April 1994, some nine months after his injury, he was mobilised on two crutches. There was much wasting of the muscles of his left calf and thigh and it was about a year after the RTA before he could get around again. Although there is a three-eighths of an inch shortening of his left leg and some instability of his left ankle, there is a good prognosis for the future. He wears a nylon brace held with Velcro on his left ankle area for support. This brace can be seen in the photograph. The injury had a considerable effect on the Plaintiff's lifestyle. While he was attending college in Tucson, his home town, he had been living in an apartment and was working in a bicycle shop. He was a keen amateur cyclist doing about 60 or 70 miles each day from 6 a.m. He combined his studies, which included photography, with working in the bicycle shop repairing, buying and selling bicycles. He described himself as a Category 3 racer and had competed in road and mountain bike races in Arizona, Mexico and California. He said that he was a cyclist in the grade one below those who would be in paid teams. While he was an employee of the bicycle shop, he had started it with his friend, Denis Hutchinson. He explained that he was paid $200 per week but that he earned more than this and the profits were put back into the business to build it up. Unfortunately, during his nine month absence, this business folded up. Cycling was very much part of his lifestyle and provided him with recreational, social and business interests. While other factors may have contributed to the failure of this business, I think that his absence was a major factor and that if he had not been injured and had been able to be present then he would have continued to derive his $200 per week from this bicycle business for at least another 40 weeks. 2. Liability, contributory negligence and quantum are all in issue in this case. A list of agreed special damages has been handed in in the sum of £2,936.64. There is a contest in respect of the claim for special damages in respect of car insurance in the sum of £218.18; storage of goods £314.78 and loss of earnings in the sum of £4,848.00. 3. I propose to give a brief synopsis of the evidence of each of the witnesses. 4. The first witness was the Plaintiff. I have already outlined how he was brought up in Tucson, Arizona and was involved in the bicycle shop with Dave Hutchinson, both of them being cyclists. The Plaintiff was a Category 3 bicycle racer. The Plaintiff had come on holiday to Ireland with Randall Eng some three days before 27th August, 1993 having previously spent a week in London. On Friday 27th August, 1993, they had had dinner at Clodagh Bowers' parent's house in Blackrock and then collected Mary Creedon at about 9.50 p.m. and went to the Queens in Dalkey. They subsequently went to Fitzgeralds in Glasthule and had a drink there and then drove down to the car park behind the Fun Factory. He described, by reference to photograph 2, how he and Randall got out of Clodagh Bowers' car and went to the kerb on the city side of the silver light standard. He said, and this is common case, that it was near midnight and it was a clear dry night with a well lit street. He looked to right and left and let a car pass coming from the Dun Laoghaire side. He said that they waited while this car went around the corner as Randall had just started walking again after having had an injury. He said they were just walking, not running and not strolling. All he can remember is letting the car pass and that there were then no cars and they proceeded to cross. He heard no horn and saw no flashing lights. He could recall taking a couple of steps from the kerb and then all he can remember is lying on the road and people standing around him. He could remember being taken to St. Michael's Hospital by ambulance. While he lay on the road he was just numb and people put stuff on him to keep him warm. He could remember the ambulance and a white room in the hospital and his leg hurting. He was kept overnight in St. Michael's Hospital and then transferred to St. Vincent's Hospital. He had an operation under general anaesthetic. He was put in a full length plaster of Paris from hip to toes. Subsequently, he had a fat embolism syndrome and only had a vague recollection of the next night, as of "vampires taking his blood". He was in intensive care for two days with difficulty breathing and he was worried. He was on pain killers and was a bit depressed and recalled having a rather helpless and rather undignified week. He was discharged on the 7th September, 1993 but, after one and a half days, he had to return for a further operation under general anaesthetic. He recuperated at the Bowers' household and then the difficult trip back to the United States. He came under the care of Dr. Habra. He was in considerable pain and the plaster cast had to be opened because of his left ankle swelling. His parents took him back in at home as he was not fit to stay in his apartment on the other side of town. His right knee also gave him problems. He was for four months in a long plaster of Paris and then in a shorter cast for three months. He was unable to work during this time. He had to spend much of three or four months on his back keeping his leg elevated and he was fairly helpless for some five weeks. When the plaster of Paris was removed, his leg was thin with a flabby calf. He had physiotherapy for about two months with two or three sessions per week. After mobilising on two crutches for three weeks and then being on one crutch for at least another month, so that he was for about ten months in all immobile, he eventually became mobile again and in June 1994 he was able to leave home and go to California to work in a photographic laboratory. This work involved storing goods in a one-hour photo laboratory and he had to stand most of the day developing photographs. His leg hurt and he found it tiring to get around. He came under the care of Dr. Parseghian in Los Angeles who suggested that he should wear a nylon brace which is depicted in a photograph and which brace he still wears when he is working or the ankle becomes troublesome. He is working presently as a photographic assistant and this involves a lot of lifting of heavy equipment. He finds that with a weather change he still has to sleep with his leg elevated. He has got back to recreational cycling but finds that his photographic job does not allow him time for his old recreation and he finds the riding rather too taxing and tiring now. He misses the cycling. Under cross-examination, the Plaintiff could remember letting the car from his right pass and proceed up the road before he and Randall Eng went across. He remembered crossing the road and then nothing else and he could not remember seeing the Defendant's car. He denied the suggestion that they were running across the road and that they had crossed in front of a car coming from the Dun Laoghaire direction and that the collision was simultaneous with that car passing him. 5. Garda Finbar Shea arrived at the scene at 12.20 a.m. on Saturday 28th August, 1993. His sketch was admitted. The Defendant's blue Ford Cortina was found as depicted in the middle of the lane facing towards Dun Laoghaire. He said that the Plaintiff was lying on the road in the centre of the same lane some four or five foot on the Dun Laoghaire side of the telegraph pole in photograph 2. The Plaintiff was lying ten foot in the front of the Defendant's Cortina. He noted a 20 foot skid mark which started approximately at what he took to be the point of impact as pointed out to him by one of the two doormen from the Purty Loft and also from his noting of glass and debris on the road. He confirmed that the night was dry with road conditions and lighting good. He also stated that the broken line signified that there was a junction for traffic coming from the link road running down beside the Fun Factory. Under cross-examination, he said that he had taken the measurements some three days later having noted the points at the time. His measurement of 20 foot from the point of impact was of brake marks going to the front wheels of the Defendant's car. He had gone back at about 1.45 a.m. after going to the hospital and had observed the black brake marks. He had paced the length of the line of vision for a driver coming from the city to the area of the point of impact as being 250 feet. He had seen the damage to the Defendant's Cortina's middle front bumper and the smashed windscreen. There was slight damage to the bonnet and some damage to the driver's side lights. He said that it was hard to say what speed the Cortina was doing from the length of the skid or the brake marks. 6. Paul Romeril, Forensic Engineer, surveyed the scene and took his set of photographs on 12th October, 1994. He said that the view towards the city would be 90/95 yards. Photograph 2 was taken 40 yards on the Dun Laoghaire side of the point of impact which was indicated to him as being outside the black door of the Purty Loft. Photograph 3 was taken 160 yards from the point of impact. Photograph 4 was taken 114 yards from the point of impact and photograph 5 was taken 90 yards from the point of impact at driver's eye-height in the centre of the left lane. Photograph 6 was taken 72 yards on the city side of the point of impact. Mr. Romeril said that such a clear view was also to be had at 75 yards back. Before that, the Defendant would have been approaching a sharp left-hand bend and his sight lines would have been restricted. If the point of impact was in the mid-lane (i.e. of the Defendant's left lane) then the footpath on the Top Hat side would be 25 foot away. He said that three miles per hour was accepted as a marching/walking pace being four and a half foot per second, thus, a person at this pace would take five and a half or six seconds to traverse 25 foot. Three miles per hour was a steady walking pace, not a running pace. He said that braking distance on a dry road at 30 miles per hour with a reaction distance of ten yards and then a braking distance of 15 yards, i.e. 25 yards. At 30 miles per hour, a car covers nearly 15 yards per second and at 60 miles per hour, a car covers nearly 30 yards per second. If a driver is doing 30 miles per hour then he would take five seconds to traverse 75 yards and he related this to the scene in photograph 6. He described the scene as a well lit urban environment. 7. Karl Sweeney was one of the two doormen at the Purty Loft on Friday 27th August, 1993. He was standing in the doorway of the Purty Loft with Paul Carey. He saw three people, including the Plaintiff, getting out of their car and waiting on the path to cross. He saw the Plaintiff stationary on the side of the path. There were two men waiting on the town side of the silver lamp post in photograph 2. He noticed the Plaintiff particularly as the Plaintiff had long hair and was looking up and down the road. Mr. Sweeney was "sizing him up". He actually asked Paul Carey what he thought of the two men. The Plaintiff started to cross and Mr. Sweeney turned to Paul Carey. He then heard a bang and saw the Plaintiff fall off the bonnet of the car. The Plaintiff had been going at a normal walking pace; it was not slow; it was not fast. He had done two or three steps when Mr. Sweeney turned to Paul. He added that he was watching the guy with the long hair, namely the Plaintiff, and he added words to the effect that he had decided to allow him in to the Purty Loft. He heard skidding and a bang and saw the Plaintiff falling off the bonnet of the car and he went out to him in the centre of the lane opposite the door of the Purty Loft. Under cross-examination, he confirmed that he had a clear memory of the Plaintiff standing and looking up and down the road. I accept his evidence thus far, particularly as he gave a reason why he had good reason to take note of the Plaintiff, his appearance and his demeanour as he came to cross and to start crossing the road. Mr. Sweeney subsequently turned to Paul Carey at least twice. In some of his subsequent answers, I felt that he was less sure and more glib in his answers and I had less confidence in the subsequent part of his evidence, particularly when he was suggesting that the Plaintiff was crossing at a time when the Plaintiff should have seen the Defendant's car. 8. Randall Eng is a photographer friend of the Plaintiff and is aged 27 having been driving since he was 15½. In August 1993, he was holidaying with the Plaintiff in Ireland and staying with the family of Clodagh Bowers. After dinner on Friday 27th August, 1993, he had gone with the Plaintiff, Clodagh Bowers and her friend, Mary Creedon, to a couple of pubs and then they had parked opposite to the Purty Loft. He described how Clodagh Bowers parked the car beside where the blue car is shown in photograph 2 and he described how she was locking her car. He proceeded to the lamp standard with the Plaintiff on his right and Mary Creedon coming along behind them. He described how they stood on the kerb on the Dublin side of the light standard; it was a dry pavement and a well lit spot. They let a car pass from the Dun Laoghaire side and then looked right and left. He only noticed the car which had come from the right. Having looked to right and left to make sure there were no cars coming, they then left the footpath. He felt that it was five or ten seconds after the car had passed before they moved. He was going straight across directly; he wanted to get to the far pavement as he was recovering from a motorcycle injury. He was walking at a good pace directly to the far side. He said that as he was crossing he saw the reflection of headlights on a grey building to his left. This was identified as the grey building on Longford Terrace which can be seen in photograph 1. He said that he could not see the object, just the reflection when he was half way across. He was in the middle of the lane on the right in photograph 2 when he realised there was a car coming towards his left; he was three quarters way across the road and he "made a break for the sidewalk". He ran for the sidewalk. He took two huge strides sprinting; before that, he had been walking. Tom Gallagher was on his right about six foot away. There was no other traffic coming to or from Dun Laoghaire. His guess was that the Defendant's car was coming at a brisk speed at least 50 miles per hour. He himself is a driver with at least 14 years experience. Having run to the kerb, he looked to his right and saw the Defendant's car screeching into Tom Gallagher who went up in the air smashing the windscreen. When the car came to a stop, Tom slid off the front. The impact between the car and the Plaintiff was in the middle of the lane and the screeching of the tyres and the impact were pretty well simultaneous. He put the point of impact as being about opposite the fourth black pole to be seen on the pavement outside the Purty Kitchen. He said that it probably took him five or six seconds to cross the road and the Plaintiff, who never made it across, would have been four or four and a half seconds in crossing. He was an exact and careful witness and as a photographer he would have a better than usual appreciation of seconds of time. I say this despite his admission that he had grossly inaccurate in an estimate of distance previously. He said that when he saw the reflection of the lights at the end of Longford Terrace, he felt it was safe enough to proceed and, anyway, he was past the point of no return. He was challenged about his estimate of the speed of the Defendant's car at 50 miles per hour and he agreed that it was his guess and that he had only seen the car over a few feet. He said that he disputed that the brake marks were only 20 feet as the guard had said to him in St. Michael's Hospital that there were no skid marks and, accordingly, he went back and noted where the skid marks were and had made foot measurements. The two long marks were parallel with one slightly shorter than the other. His shoe is 13 inches long and he had measured the longer mark at 27 of his feet. He had done this at 2 p.m. the next day. He had photographed the marks the next day. I accept Mr. Eng's evidence with regard to the length of this brake mark, i.e. that it was more than nine yards long rather than under seven yards long. 9. Mary Creedon is a secretary living in Monkstown. Her evidence was clear. She was collected at about 9.50 p.m. on 27th August, 1993. She confirmed the Plaintiff's evidence about Clodagh Bowers parking and then locking the car and putting on her crook-lock. The Plaintiff and Randall Eng had gone to the far side of the silver lamp standard in photograph 2 and she was shortly behind them. They were standing where the white car is in photograph 2. They were checking for traffic. She was doing the same and noticed no traffic and they moved off as she came up. She watched them pass the midway point of the road and she was half-way in the near carriageway. Just as the Plaintiff and Randall Eng were past the white line (in the middle of the road), she noticed a car coming from the Longford Terrace end. She started to backtrack to the kerb. She is a driver and she estimated the speed of the Defendant's car as it came around the corner quite fast as being 40 to 45 miles per hour. She thought that the Plaintiff and Randall Eng would get across safely as they were practically at the other side. They were walking across and not running. She certainly felt that they had time to clear the path of the Defendant's car. She saw Randall Eng do a quick hop to the pavement, by a hair's breadth he was not caught. It all happened very fast. She saw Tom Gallagher being hit by the Defendant's car and being thrown up in the air and coming down with the windscreen being broken. She said that the Defendant's car did not seem to slow down before the impact. She heard screeching of brakes for some time. The sound of the screeching of brakes was just before the impact. She said that the Plaintiff was hit by the centre front of the car and ended up diagonally on the road four feet in front of the car with his head towards the kerb. She was emphatic that she did see Tom Gallagher cross the white line and go half way across the far lane and that he was walking briskly across the road. Under cross-examination, she said that the two men had been ten or twelve feet ahead of her and only five or six feet ahead of her when they went to cross. They did not step out straight away as they had stopped to let a car (coming from Dun Laoghaire) by. She was adamant that there was no traffic on the road when they started to cross. She conceded that she could not be accurate about the car's speed but that it had seemed to her to be going at 40 to 45 miles per hour. She agreed that the Defendant had stopped in a short distance, but not a very short distance. She asserted that Randall Eng was not crossing at a fast speed but at a fast walking pace and that he changed from fast walking pace to sprint for one or two hops to reach the pavement. She said Randall saw the car and hopped. Tom Gallagher did not change his pace and he was oblivious to the Defendant's car. 10. The Defendant gave evidence that he lives in Blackrock and was driving down to collect his daughter from the Royal Irish Yacht Club. He was driving his specimen 1973 Mark III Cortina. He said that he was travelling at no more than 30 miles per hour and that he saw no oncoming vehicle until he turned to the left towards the Purty Kitchen when there were oncoming vehicles on dipped headlights. He maintained his 30 miles per hour as the road was completely clear ahead of him. As the oncoming car passed him, the road appeared clear but as it passed a figure like a shadow came and a second man appeared running hard. He braked as he saw the first figure. There was an impact to the centre front of his car. Later, he noticed a dent in the bonnet just to the left of centre. The windscreen was shattered. He felt that he had brought the car to a halt in about 15 feet in the same straight line. He got out and went to the Plaintiff who was lying in a straight line about ten foot in front of his vehicle. The doorman rang for the guards and ambulance and he awaited the Gardai who came ten minutes later. He was shaken by the episode. His impression was that it all happened quickly and that they, meaning the Plaintiff and Mr. Eng, came across the headlights of the oncoming vehicle, that is, in front of the car coming from Dun Laoghaire and that they were running. It was suggested to him that he had said elsewhere that he was doing between 30 and 34 miles per hour and he said that he would not dispute that but that he did not choose to drive in excess of the speed limit. He denied that he was driving at a reckless speed. His recollection was that he was aware of the oncoming vehicle as it passed the Tedcastle sign and the link road. He said that when he came around the bend on the city side of photograph 6 he had a full vision of the road ahead. While he had a clear vision unimpeded down that straight (in photograph 6), nevertheless, he thought that the oncoming car passed him almost simultaneously as he passed the door of the Purty Loft. He said that his first sighting of the Plaintiff was of him coming at high speed from his right coinciding with the passage of the oncoming vehicle. His impression was that suddenly they were running at high speed in his headlights. He did not register any people at all until they came into his headlights. Mr. Eng was the first figure who flitted in front of his vehicle. He asserted that he had unremittingly stated that the people were moving at high speed. 11. The Defendant was a careful witness with a fine appreciation of the precise meaning of words. He was proficient in the use of appropriate and apt phrases as one would expect from such a distinguished member of the acting profession. For example, he said "apparition was a good description" in respect of what he took to be the running figures appearing in front of his car. Unfortunately, his recollection of events (and I have no doubt that he and indeed all the other witnesses in this case are doing to their very best to recall what happened and to give a true account of events) nevertheless, I am convinced that the evidence is overwhelming bearing in mind particularly what was said by Karl Sweeney, Randall Eng and Mary Creedon, that the two Americans did wait for a car to pass coming from Dun Laoghaire and that they did check that the road was clear before they started to walk, not run, at a brisk pace towards the Purty Kitchen side of the road. I think that the Defendant should have seen the three pedestrians crossing the road outside the Purty Kitchen. Apart from the slight distraction of the oncoming car with its dimmed headlights, which must have passed the Defendant's car much further on the city side than he recollects, there should have been a clear unimpeded view of the two Americans and Mary Creedon crossing the road. I have no doubt that the Defendant was exceeding the speed limit, as does much of the traffic on that stretch of road. He was not driving recklessly but he was driving inadvertently. The guard measured the carriageway as 27 foot wide. As the Defendant approached the point of impact, in my view, the Plaintiff and Randall Eng had walked at least seven or eight yards across the road and should have been clearly to be seen. Furthermore, Mary Creedon should also have been visible out on the roadway and this should have alerted the Defendant to the presence of pedestrians in front of him. The two men were well out across the road and the driver was under an obligation to slow or to stop to allow them to complete the crossing. In my view, the Defendant was responsible for this accident in that he failed to keep a proper lookout and, in the circumstances, he was driving too fast. 12. As for the aspect of contributory negligence, there is a duty on a pedestrian to watch out for his own safety and when one is crossing a road where there are bends to one's right and to one's left, it behoves one to keep an eye-out for traffic coming from around the bends. I think that the Plaintiff should have been keeping a better lookout for his own safety and should have noticed the car coming from his left and have taken evasive action as it traversed the 75 yards in which it should have been in his field of vision. Nevertheless, in apportioning liability in this case, it seems to me that the negligence of the car driver was considerably greater than the culpability of the pedestrian and, accordingly, after careful consideration, I think that the appropriate allocation of responsibility is to apportion blame 80% against the Defendant car driver and 20% against the Plaintiff pedestrian. In short, the Defendant was exceeding the speed limit and should definitely have seen the three pedestrians and have slowed down, stopped or taken evasive action. As for the Plaintiff, I believe that he did wait for the road to be clear but as he crossed he should have kept a sharp eye both to the bend on the Dun Laoghaire side and to the bend on the city side. While his view to his left would have been to some extent obscured by Randall Eng, nevertheless, he was some six feet away from him and the car should have come into his vision if he had looked to the left in compliance with his obligation to keep a watch out for his own safety. 13. As for quantum, I have already outlined the Plaintiff's injuries. I have studied the contents of the booklet of medical reports which includes the medical report of Denis Mehigan dated 10th December, 1993 in respect of the Plaintiff's condition in St. Michael's Hospital, Dun Laoghaire; he had a small laceration of the scalp and a compound fracture of the left tibia and fibula. The medical report of Brian Hurson is dated 11th November, 1993 and deals with the comminuted displaced transverse fractures of the mid-shaft of the left tibia and fibula. He describes the operation on 28th August, 1993 and the need for the Plaintiff to have intensive care due to his high pulse rate and his need for treatment for a fat embolism syndrome. In his report dated 19th January, 1994, Dr. Kieran Crowley describes the Plaintiff's time in the intensive care unit suffering from respiratory distress. I have also read the medical reports from the physical therapy and sports rehabilitation, diagnostic radiology and group health medical associates in Arizona and the reports from Dr. Michael Parseghian dated respectively 5th April, 1994, 17th May, 1994 and 31st August, 1995 and 19th August, 1994. I also have before me the medical reports from Dr. John Habra dated 20th September, 1994. In his summary, Dr. Habra says that the Plaintiff was treated with close manipulation of the fractures and immobilisation in a long leg cast in Ireland and then followed by himself in the United States with multiple casts and incurred gradual healing of his fractures of the midshafts of the left tibia and fibula until he reached completely solid healing in satisfactory position and alignment with very slight angulation of the tibia on the lateral view. His progress was excellent and he was able to rehabilitate the joints of the left lower extremity into regaining good range of motion and the muscles as well into good strength. Dr. Habra says that he feels that his prognosis is excellent and that he was allowed to resume gradually normal activity. In his report dated 6th August, 1996, Dr. Michael Parseghian said that Thomas Gallagher was most recently seen on the 12th June, 1996 and is noted to have a stationary status in his left lower extremity. Thomas has a well healed tibia fracture with mild shortening of three eighths of an inch comparable to the uninvolved side. His range of motion at the knee and ankle are good. He remains with low grade ligamentous instability to the left ankle. At this point in time, Thomas' symptoms related to the left ankle are low grade and he had recommended some modification of activities rather than any surgical intervention. He did not see enough problem with the ankle or laxity to the ligaments to warrant surgical reconstruction. 14. I have also read the two reports from Mr. Brian Regan, the first of which is dated the 15th June, 1994 and the second of which is dated the 10th October, 1996. In his concluding opinion, Mr. Regan says:- "Copy of a report dated 19th September, 1995 from Michael Parseghian M. D. states that radiographs of the ankle (presumably of the left) were obtained today and shows persistence of some disuse of the osteo-penia in the bone but no major breakdown or changes of the joint. This can be translated as slight evidence of disuse in the bone which is common after serious fracture but no abnormality of the joint. Numerous x-rays have been carried out in the United States and appear to show good union of the fractures of the left leg bones. It is not uncommon for joint symptoms to follow serious fractures even though there does not appear to have been trauma through the actual joint. In this case, there is no evidence that there is any instability or degenerative change in this man's left ankle. Measurement of the thigh on both sides is equal indicating good use of both legs. Measurement of the calf would not be of much value because of the fracture in mid-shin, and as all movements of the left ankle joint are equal to those of the right there seems to be no evidence for a statement of low grade ligamentous laxity of the ankle." 15. I think that the appropriate compensation for pain and suffering to date is £40,000 which includes for the fractures, the trauma, the two operations and the time spent in hospital, the indignity and immobility and the being in plaster of Paris for such a long time and having to change his lifestyle and the loss of enjoyment of cycling as his recreation. While the fractures have healed and he is obviously fully mobile again and is able to work in a photographic laboratory, nevertheless, I think that his injury has rendered his leg vulnerable and he is and will be conscious of the aftermath of the serious injury for some time to come. The injury has also affected his way of life. I think that a sum of £10,000 for pain and suffering in the future is appropriate. A sum of £2,936.64 has been agreed in respect of certain agreed special damages. There is also a claim for loss of earnings in the sum of £4,848 which I think should be allowed on the basis of $200 per week over a period of 40 weeks. I think it likely that the bike shop would have continued were it not for the absence of the Plaintiff which was a strong contributory factor in its demise. With some hesitation, I think that the figure of £218.18 for the car insurance during the period when the Plaintiff was unable to use the car but was obliged to minimise his loss in this respect by keeping up the car insurance should be allowed. I will also allow the sum of £314.78 for the storage of his goods from his apartment which he was no longer able to use during the period of his incapacity while he had to reside at home. 16. Accordingly, there will be award of £46,654 and costs to the Plaintiff. © 1996 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII