Neutral Citation Number: [2016] IEHC 232
THE HIGH COURT
[2013 No. 5917 P.]
BETWEEN
PATRICIA WALSH
PLAINTIFF
AND
TESCO IRELAND LIMITED
DEFENDANT
JUDGMENT of Mr. Justice Barr delivered on the 6th day of May, 2016
Introduction
1. The plaintiff in this case is a married lady of forty-eight years of age, who was born on 3rd March, 1968. She has two daughters, aged ten and eight. She and her husband own and run a stud farm in Co. Clare. Their main activity is breeding and training horses for equestrian events. They also have a stallion, which cover mares owned by the plaintiff, as well as mares that are brought in for that purpose. They also have a number of cattle on the farm.
2. On 28th August, 2012, the plaintiff slipped on grapes on the floor of the defendant’s supermarket premises at Kilrush, Co. Clare. As a result of the fall, she suffered an injury to her lower back. Liability for the accident has been conceded by the defendant.
3. In essence, it is the plaintiff’s case that, as a result of the fall, she has suffered a serious back injury, which has required extensive surgery and other treatment, culminating in the insertion of a spinal cord stimulator in her back in 2015. She also suffered a significant injury to her bladder, which has necessitated her to self-catheterise three times per day. She also suffered psychiatric sequelae. The plaintiff maintains that these injuries have left her severely disabled in all aspects of her life. It is the plaintiff’s case that the injuries have rendered her totally unfit for any gainful employment, both to date and into the future.
4. In this regard, the plaintiff maintains that her loss of earnings into the future is very significant, due to the fact that, but for the accident, she would have returned to full-time employment when her oldest child was in secondary school, in approximately 2018. The plaintiff maintains that, at that time, she would have secured a well-paid job as a supply chain manager, which was a job that she had worked at in the US and in Ireland before the birth of her children.
5. The defendant accepts that the plaintiff has suffered a significant injury, but they do not accept that, in the absence of the accident, there was any reality to her rejoining the workforce at an executive level in 2018, due to her commitments both in the home and on the farm and having regard to the fact that she would have been out of that kind of work for upwards of fourteen years and she would be fifty years of age at that time.
6. Another area of contention is the claim for future medical and care costs and the costs of aids and appliances. The defendant does not accept the range of aids and appliances put forward on behalf of the plaintiff. They also have a different view as to the level of home help that will be required by the plaintiff in the future.
7. A further area of disagreement is in relation to the real rate of return that should be used when calculating the appropriate multiplier to be used in respect of the various heads of future loss. It is sufficient at this point to note that the plaintiff has contended that, on the basis of the Court of Appeal decision in Russell (A Minor) v. HSE [2015] IECA 236, a real rate of return of 1% should be used for loss of earnings and future care costs and 1.5% for all other costs. The defendant maintains that a real rate of return of 3% should be used across the board.
8. Given the level of disagreement between the parties, it will be necessary to look at both the claim for general damages and special damages in some detail.
Background
9. Before dealing with the issue of general damages, it is useful to give some background in relation to the plaintiff’s life prior to the accident. The plaintiff was born on 3rd March, 1968, in the United States. She returned to Ireland with her family at two years of age. They had a farm in Co. Clare and her father dealt in horses. She went to St. Joseph’s secondary school and then did a diploma in business in Tralee RTC. When she graduated, she went to the USA. She worked initially in a large advertising agency and then switched to the purchasing department of Unilever in New York for four and a half years.
10. She was headhunted from Unilever and went to work for Phillip Morris in the purchasing department. While there, she was selected for a Management Development Programme within the company. She was one of eighteen people selected. The plaintiff was the purchasing manager for Marlboro cigarettes and had a budget of $500m. This involved sourcing materials from across the globe and from China in particular. They had over two hundred million consumers. There was a team of sixteen people working under her. She had authority to negotiate contracts up to $20m. For contracts larger than that, she needed authority from higher up in the company. She worked with Phillip Morris for seven and a half years.
11. The plaintiff returned to Ireland in 2001. She met her husband when he came to purchase a horse from her father. They got married in 2003. At that time, she was working with Musgrave’s wholesalers, which handled the accounts for the Supervalu chain of supermarkets. The plaintiff was in the trading department, where she was involved in a restructure of the supply chain. She reported to the Director of Purchasing. She had been headhunted to work for Musgraves and she started in July 2001. Her function was to improve communications between the various offices and the warehouses. She had eight/nine buyers reporting to her and fifteen managers in charge of hundreds of employees. They greatly changed the logistics within the company. They centralised and moved production to Kilcock in Co. Kildare.
12. In her college days, and before moving to the US, the plaintiff had been heavily involved in sports. She played Gaelic football for Clare and Munster at senior level. She was on the team that won the Railway Cup three years in a row. She also played football in New York. On her return to Ireland in 2001, she played football with her local club and also trained the under-10 boys’ team. She also played tag rugby in Cork.
13. The plaintiff and her husband came from farming backgrounds and they both had an interest in horses. They wished to pursue this interest. They purchased a stud farm, known as Shannondale Stud. They live on the farm. The plaintiff left Musgraves in 2004, and had her first daughter the following year, in 2005.
14. The plaintiff explained that she and her husband enjoyed working hard to build up the reputation of the stud. To this end, her husband had purchased a stallion called “Sarco” in Belgium. They brought this horse back to their farm and hoped to build its reputation over the following years. In the early years, they had thirteen horses on the British database and now there are seventy-six horses. They can all be traced back to Shannondale Stud. During this time, they built the stables and did a lot of physical work about the farm. The plaintiff also looked after the paperwork connected with the farm, as well as the online marketing and branding of the stud business.
15. The plaintiff had her second daughter in 2007. In November 2011, she took up part-time work as a receptionist/secretary in a GP practice run by Dr. Regan in Kilkee. The plaintiff worked three days one week and two days the next week. She received a weekly wage of €200.
16. In the course of her evidence, the plaintiff gave the following summary of her normal day’s work on the farm, when she was not working with Dr. Regan. She would rise at 06:00hrs and go for a four mile walk or a cycle; she would put out the laundry if it was a nice day; she would help her husband feed the horses and clean one block of the stables; she would then make breakfast, get the girls up, fed, and dressed, and get their lunches ready for school; she then dropped the girls to school; she would return to the farm and extend fresh semen for shipments to go out that day (by courier which arrived at 11:00hrs); she would then clean the second block of stables with her husband; she would then clean the yard; she would help her husband with mares to be scanned, covered or otherwise attended to; she would exercise three year-old horses, wash and put them on the walker; she would cook dinner in between exercising horses; she would pick up the children from school; feed the children; help with homework and, on certain days, get them to after-school activities; when finished with dancing, music or swimming, she would go up the yard to help her husband with jobs; she would rug the horses and get them settled for the night; she would do the evening tea and put the girls to bed; she would then tidy the house; she would organise orders/shipments for the following day; she would answer emails and deal with any relevant paperwork; she would lay out the stud daily sheet to organise scans and covers for the following day.
17. On the days when she was working in the doctor’s practice in Kilkee, she would manage to do the following: go for a four mile walk or a cycle; help her husband do the feeds and clean one block of the stables; make breakfast; get the girls up, fed, dressed and get their lunches ready for school; drop the girls to school; go to work from 09:15hrs to 18:00hrs; help with feeds and evening jobs when she came home; do evening tea and put the girls to bed; organise orders/shipments for the following day; answer emails and deal with any relevant paperwork; and lay out the stud daily sheet to organise scans and covers for the following day.
18. The plaintiff further stated that she also did a number of ad hoc things, such as: cutting the lawn and ensuring that the property was kept clean and tidy. She would paint the posts and rails with wood preservative and paint the wooden panels/fencing behind the house. In April/May before the yard got too busy, she would paint the outside and inside of the stables. She would also paint the outside of her own house every two years. When her husband was away buying or selling horses, she would manage the stables and perform the yard duties and her mother in law would take care of the girls. The plaintiff stated that she did the marketing, advertising, banking, accounting and any other paperwork that goes with managing the business.
19. In terms of sporting activities, the plaintiff enjoyed riding the horses and breaking them in. She had also taken part in a fun triathlon with her sisters. This was not a full-blown triathlon, but involved a swim of one mile, a cycle of 10km and a run of 5km.
General Damages
20. On 28th August, 2012, the plaintiff went to the Tesco supermarket in Kilrush. She intended to pick up a number of items which were needed for the girls’ school lunches the following week. At approximately 18:15hrs, she was walking down the fruit aisle in the supermarket when suddenly her legs went from under her and she landed heavily on her back. She described feeling an immediate burning pain in her lower back. She could not get up as she could not move her legs. There was also some pain in her neck.
21. By chance, the plaintiff’s daughter happened to be in the shop at the same time, in the care of her grandmother. She came over to where the plaintiff was lying and was very upset at the condition in which she found her mother. The plaintiff stated that she had a vivid recollection of her daughter lying down beside her and trying to comfort her. The plaintiff stated that the shop staff were very helpful and kind. They obtained a blanket and put it over her, until the ambulance arrived. It transpired that the plaintiff had slipped on some grapes which were on the floor of the fruit aisle.
22. When the ambulance arrived, the plaintiff was strapped onto a spinal board. She was taken to the Accident and Emergency Department of Ennis General Hospital. They did an x-ray, which was clear. At this time, the plaintiff had severe pain in her back, which was radiating into her sides. An injection was administered. However, she was not able to get up. She was then transferred to Limerick Regional Hospital. The plaintiff stated that she was in extreme pain at this time. She was on a trolley in the Accident and Emergency Department. During the night, she needed to go to the toilet and the nurses gave her a bedpan, as she was not able to go to the toilet. Later, the medical staff said that she needed to be catheterised and this was done in the trauma ward. The plaintiff stated that she was very afraid during this period, as she did not know what was going on. She was given pain medication during the night.
23. The next day, a scan was taken and the doctors liaised with the medical staff in Cork University Hospital. She was given a further injection. She was eight days in Limerick Regional Hospital. During this time, she had a kidney infection and was very sick. She stated that she went to the bathroom, which was some 3ft away from her bed, but had to use a Zimmer frame. She was under the care of Prof. Harmon, Pain Specialist, who administered a number of painkilling injections.
24. The plaintiff was discharged from hospital on crutches. She stated that she had very severe pain at that time in her back and legs. She also had tremors, which she found very frightening. She was on a large number of painkillers. She came under the care of her GP, Dr. Ellis.
25. The plaintiff had ceased using Dr. Regan as her GP, as it was felt inappropriate that she should treat the plaintiff, when the plaintiff worked for her. For this reason, she came under the care of Dr. Joce Ellis, who saw the plaintiff for the first time on 9th September, 2012. At that time, she complained of pain, reduced sensation and reduced power in the left leg. She had severe pain in the left buttock, hamstring, and lower leg as far as the lower calf. There was reduced sensation in a similar distribution and further into the lateral aspect of the left foot. The medial leg and foot had some reduction in sensation but not so marked. The foot was colder on examination. There was a reduction in power in the foot. There was reduced flexion and eversion. There was a reduction in touch sensation in the perineum, more marked on the left. The plaintiff was unable to walk more than a few meters, even while using a pair of crutches; she was unable to stand fully upright due to pain. Bladder sensation was much reduced, She would take herself to the toilet to pass urine, without really being aware that there was a need to go. Bowel function was very poor, with considerably reduced sensation of any need to go and pain on attempting bowel movement. There was a considerable degree of constipation due to various factors, including reduced sensation, reduced muscle power, pain and the constipating effect of opiate pain medication.
26. Dr. Ellis formed the view that the situation seemed to consist of partial cauda equina syndrome, with some lumbar nerve root element as well. The GP referred the plaintiff for further opinion to Mr. John Burke, Consultant Surgeon in the Galway Clinic. He did not recommend carrying out surgery at that time and advised that a conservative approach be taken. Mr. Burke referred the plaintiff on for further evaluation by Dr. Jahnke, Consultant Neurologist. More investigations were organised at that time; these were normal, apart from ultrasound of the bladder showing a residual volume of 160ml, which indicated incomplete voiding. The plaintiff was reviewed by Dr. Jahnke on 13th November, 2012, at which time the plan was to refer the plaintiff to a consultant urologist.
27. Dr. Ellis stated that on review in November 2012, the plaintiff still had considerable symptoms in her back and also with her bladder. Her mood was low. She was distressed at the extent of her disability. She was unable to work on the farm. She was unable to have sexual relations with her husband. She could not drive; she could not do her part-time work. She was on a considerable amount of pain medication.
28. The plaintiff stated that, at this stage, some three months after the accident, she was very upset that she was not getting any better. She stated that she would have gone anywhere in an effort to get better. Her parents-in-law were very helpful and looked after the children and the housework. The plaintiff was unable to do anything around the house and farm. She stated that this was terrifying.
29. The plaintiff saw Dr. McInerney, Consultant Psychiatrist, in December 2012. She told the doctor that she was having great difficulty coping. She saw a psychologist at this time, who helped her deal with the effects of her injury. The psychologist gave her some tools, which would help her cope with her pain and disability. The plaintiff stated that she was on a lot of medication from her GP, including Lyrica and Difene. The medication made her groggy and affected her concentration. The plaintiff had physiotherapy treatment, approximately one session per week. She was not able to make any progress with her pain. She returned to Prof. Harmon who referred her on to Mr. O’Neill, Consultant Neurosurgeon at the Mater Hospital, in Dublin. He saw the plaintiff on 14th February, 2013. He noted that Prof. Harmon had administered a cordal epidural injection at Limerick Regional Hospital. At review, she had marked voluntary restriction of lumbosacral movements. SLR was free on the right side and 60 degrees on the left. She had an altered sensation along the anterior aspect of the left thigh. There appeared to be some weakness of left dorsi-flexion, but this was difficult to assess precisely, as she required exhortation to maximise effort. He noted that she had become depressed because of her persisting symptoms.
30. An MRI of the lumbosacral region was performed that day. This demonstrated evidence of degenerative changes at the L4/5 and L5/S1 disc levels. There was evidence of a left sided extruded disc fragment lying distal to the L3/4 level. There was evidence of a broad based annular bulge at the L4/5 level. This abutted but did not displace the left sided nerve root. Mr. O’Neill was of the view that the extruded fragment at the L3/4 level would explain her left lower limb pain.
31. The plaintiff was admitted to the Mater Hospital on 25th February, 2013. On the following day, she had a left sided L3/4 lateral recess decompression and foraminotomy performed together with a microdiscectomy. At operation, a large extruded disc fragment was found.
32. The plaintiff stated that initially after the operation, there was considerable decrease in her symptoms. She had been told to do nothing for a number of weeks after the operation and she followed those instructions. The doctor then advised her that she could resume activities on a gradual basis. However, she got a flair up of pain, which the plaintiff said went from bad to unbearable in her back and left leg. She had to go back to bed due to her symptoms. She was devastated by this development.
33. After a number of weeks, she continued to have pain on a constant basis. She returned to Prof. Harmon. It was possible to relieve some of the pain in the lower back by administering injections, but the leg pain remained severe. The injections were a day procedure and were guided by x-ray. They afford temporary relief.
34. Prof. Dominic Harmon, Consultant in Pain Medicine in Limerick Regional Hospital, stated that when the plaintiff had been an in-patient in the hospital, he had administered an epidural injection to her. This was repeated twice more but with less benefit. She then had the back surgery on 25th February, 2013. She was on a lot of medication at that time including Lyrica, Tradol, Celebrex, Difene and Amitriptyline. Subsequent to the operation, the plaintiff was reviewed on 29th November, 2013, when she had left L3, L4 and L5 nerve root blocks.
35. In January 2014, the plaintiff was admitted to the National Rehabilitation Hospital in Dun Laoghaire for intensive treatment. She remained there for a period of eight weeks. During this time, she had extensive physiotherapy, occupational therapy and hydrotherapy. She found this helpful with her leg pain. At that time, it was very sore to touch her left leg. She had to have something in bed to stop her husband kicking against it. She stated that while she was in the hospital, her husband and children would visit at the weekends and she was allowed home some weekends. While the treatment was beneficial, she had not returned to her pre-accident state.
36. On 28th March, 2014, Prof. Harmon administered left L3, L4 and L5 nerve root blocks. On 13th June, 2014, he administered a left sacroiliac joint injection and a left S1 nerve root block.
37. The plaintiff was reviewed by Prof. Harmon on 11th November, 2014. She had restricted range of movement of the lumbar spine due to pain. Straight leg raising was positive on the left side. Cranial nerve cerebella, motor and sensory functions were intact. General examination was otherwise normal. She reported that the left sacroiliac joint injection had helped her back pain. She reported that she could not do all of her activities. She had to pace herself. She had made a lot of adjustments to her life. She was on Lyrica 50mgs in the morning and 100mgs at night time. She reported taking Palexia slow release 100mgs twice a day. This is a strong opiate based painkilling medication.
38. Due to her ongoing symptoms, Prof. Harmon discussed the option of neuro-modulation with the plaintiff. He referred her to Dr. Paul Murphy, Consultant Pain Specialist, at St. Vincent’s University Hospital in Dublin.
39. The plaintiff also travelled to the United Kingdom to seek the opinion of Prof. Jeremy Fairbanks, Consultant Orthopaedic Surgeon. He saw the plaintiff on 28th July, 2014. He had seen the plaintiff’s MRI scans. The scan of 30th August, 2012, showed that the discs below L4 and 5 were darker, indicating less hydration, and showed degeneration at these levels. He stated that this would be a common finding for people of the plaintiff’s age. That scan was reasonably normal. The scan taken on 14th February, 2013, indicated that there was a protrusion, a disc herniation which was removed subsequently in surgery. There was axial load in the accident, causing damage to the L3/4 disc.
40. Prof. Fairbanks noted that the plaintiff had been treated by Prof. Harmon by means of injections. She was also on a significant dose of medication, in particular Lyrica and strong opiates in the form of Palexia. He noted that she also had bladder problems. The doctor noted that at the time of the accident, the plaintiff was unable to get up and that subsequently she had been detained in hospital for eight days, which was a long time. There was concern that she had cauda equina syndrome, which occurs when the nerves to the cauda equina are damaged. On examination, he noted that the plaintiff had widespread altered sensation and that her gait was affected. She used a stick when walking.
41. Prof. Fairbanks said that he was in no doubt that the plaintiff had a herniation at L3/4 level caused by the fall and the axial injury. This was not the usual type of disc herniation. The herniation and symptoms were consistent with the accident.
42. In relation to a prognosis, he stated that he understood that the spinal cord stimulator which had been inserted in 2015 had helped. However, he was of opinion that the plaintiff would have pain in her back for the rest of her life. In relation to work, he understood that she had worked with horses and did administration work. He thought that her physical capacity was very limited and that she could not work with young horses. She also had chronic pain, which, for some unknown reason, tended to make people clumsy. When he saw the plaintiff, she was complaining of loss of memory and concentration. He thought that that could have been due to the medication that she was on at the time. He was of opinion that she would require strong medication in the future, which would affect her ability to do paperwork.
43. It was put to Prof. Fairbanks that the plaintiff had injured her back in May 2008 while chasing cattle. It was put to the witness that she had a disc herniation at L5/S1 at that time. An MRI scan taken on 9th June, 2008, showed degenerative changes at L4/5. Prof. Fairbanks stated that this would be a normal finding for a person aged 40 years. He stated that it was very common for people to have episodes of back pain and it was not unusual that she would be referred to a consultant.
44. It was put to the witness that in a letter dated 4th November, 2013, from Mr. Padraig O’Neill, Consultant Neurosurgeon, to the plaintiff’s GP, he had stated that he thought that many of the plaintiff’s symptoms at that time had a psychological rather than a physical basis. He noted that the plaintiff had previously been reviewed by psychiatrists but there had been no significant follow-up for a significant period of time. He had suggested that the plaintiff be reviewed again by a psychiatrist and he recommended that this aspect of her symptoms be properly assessed and treated. He stated that it was only when this had been done, that he would be in a position to accurately assess any residual symptoms. Prof. Fairbanks did not think that any psychological difficulty was a major cause of her symptoms. He stated that the prognosis was somewhat guarded, as she was on the highest level of pain intervention. He stated that he thought that the plaintiff had mentioned that she could ride a bicycle. He stated that a lot of patients can get around on bicycle, rather than on their feet. That was a positive indicator for rehabilitation. He would encourage her to continue cycling. He agreed that it would be a good sign if she was able to tighten the girth strap of a saddle on a horse. That too was a positive development.
45. In re-examination, Prof. Fairbanks stated that the level of degeneration evident on the scans was normal for a person of her age. It was possible to have degeneration without pain. Cauda equina syndrome was a clinical diagnosis; it could be caused by a number of things. It could be caused by a massive disc herniation. However, this was not evident on the scans. He noted that the plaintiff still had pain and had not recovered. This had affected the nerves in her back. This was not a common situation. He stated that, in his opinion, she was in serious trouble.
46. The plaintiff had been referred to Dr. Paul Murphy, Consultant Pain Specialist, at SVUH, by Prof. Harmon. She was first seen by Dr. Murphy on 26th November, 2014. At that time, she reported having pain ranging between 7 and 9 out of 10 on the numeric rating scale. Pain was reported to extend throughout the left lower lumbar region, predominantly in an L5/S1 distribution with extension to both the hallux and fifth toe. She reported a range of strong neuropathic descriptors including shooting and burning dysesthesia, tactile allodynia, thermal allodynia, spontaneous pain attacks and dysesthesia. Her pain detect score was 32 out of a possible 38. A score in excess of 18 is considered more than 90% predictive of neuropathic pain in the validated scoring system. On examination, the plaintiff was noted to move slowly with the aid of a walking stick. Marked tactile allodynia and hyperalgesia were documented extending throughout the L4/L5 and S1 distribution. Significant motor deficits in the L4, L5 and S1 distributions were identified. Significantly reduced knee and ankle jerks were noted on the left, with motor deficits in respect of plantar/dorsiflexion of the foot and toe and extension of the quadriceps.
47. Dr. Murphy explained that Ms. Walsh was not considered to be a surgical candidate and that pain relief, rather than functional restoration, was her main priority. He was of opinion that she represented a good candidate for trial spinal cord stimulation. Having discussed the matter with the patient, the plaintiff was sent forward for psychological evaluation on 5th December, 2014, and was deemed suitable for trial spinal stimulation from a psychological prospective.
48. Prior to proceeding with spinal cord stimulation, the plaintiff underwent left L5/S1 dorsal root ganglion pulsed radiofrequency ablation/transforaminal depot steroid injection under fluoroscopic control on 5th December, 2014. This provided moderate short-term relief only. She was subsequently admitted on 6th February, 2015, for trial spinal cord stimulation. Dr. Murphy stated that the plaintiff had informed him that she had improved for six weeks after the previous back surgery. She had scarring around the nerve roots as a result of that surgery. Dr. Murphy thought that the plaintiff was in great pain when he saw her. Tests confirmed that she was in a lot of pain. She had done a self-evaluation test and had done objective tests which confirmed the finding that she was experiencing a lot of pain. Dr. Murphy stated that he was completely satisfied that the plaintiff’s pain was very severe and entirely genuine.
49. On 6th February, 2015, a trial spinal cord stimulator was inserted. This involved insertion of wires into the patient’s back, to see if it was possible to get coverage of the affected area. Generally speaking, they would be satisfied if they had obtained coverage of a minimum of 70% of the affected area, together with a minimum decrease of 50% in pain relief. The plaintiff reacted well to the trial of the spinal cord stimulator. On 20th February, 2015, stage two of the trial was carried out when the impulse generator was implanted. During the two week trial period the plaintiff reported in excess of 70% area coverage with virtually 100% pain reduction. Based on this, a St. Jude impulse generator was implanted in the left iliac fossa.
50. The plaintiff was reviewed approximately six weeks after the spinal cord stimulator had been inserted. She reported ongoing excellent coverage of the left lower extremity; however, some breakthrough pain was noted in the buttock. She was subsequently admitted on 21st April, 2015, when she underwent a left L4 - S3 lateral branch pulsed radiofrequency ablation under fluoroscopic control with reprogramming of her impulse generator. She reported excellent pain relief and complete coverage of the affected pain area on discharge.
51. When reviewed on 25th June, 2015, the plaintiff reported significant analgesic benefit with leg coverage rated at 100% and pain reduction rated in excess of 80%. Low back/buttock coverage was rated at approximately 70% of the affected area with in excess of 50% analgesia reported. Overall, the plaintiff felt that stimulation had greatly improved her pain control and functional status, as she reported that she was able to walk short distances, particularly around the house, without the use of her walking stick. Pain was rated at ranging between 2 - 3 out of 10 on the numeric scale and there had been a significant reduction in the neuropathic descriptors. Since treatment with spinal cord stimulation, the plaintiff had been able to discontinue use of the anti-neuropathic agent, Lyrica. She did, however, continue to utilise the opiate based agent, Palexia SR at a dose of 100mgs. She had been advised that that dosage could be gradually weaned as tolerated.
52. As part of her evaluation in June 2015, the plaintiff was asked to complete a brief pain inventory. That questionnaire allowed the individual to provide a subjective evaluation of the perceived impact of pain across a range of functional domains. A range of 0 out of 10 represented lack of interference, whilst a rating of 10 out of 10 represented complete interference. With respect to the areas: general activity, walking ability and capacity to perform normal house work (including both work outside and inside the home) she provided ratings of 9, 9 and 8 respectively. She reported significant difficulty carrying out a range of household chores and work related activities, which previously were not difficult. She reported significant adverse impact with respect to the domain “mood”, with a rating of 9 out of 10. She reported that she frequently becomes depressed and extremely irritable. This has also impacted on the domain “relations with other people”, which she rated at 8 out of 10. The plaintiff had previously attended counselling which she found beneficial. Dr. Murphy recommended that she re-attend for further counselling. Marked adverse impact had been reported with respect to the domain “enjoyment of life” rated at 9 out of 10 and “sleep”, rated at 6 out of 10. It was noted that whilst the plaintiff awoke approximately three - four times per night, this was primarily due to issues with respect to her bladder rather than pain, which had become less problematic following spinal cord stimulation. The plaintiff also reported adverse impact with respect to the domain “ability to concentrate”, with a rating of 5 out of 10. It was felt that this was most likely due to the analgesic medication, which she was utilising. It was hoped that with reduction in medication, this may become somewhat attenuated.
53. Mr. Murphy was of opinion that as a result of the plaintiff’s injury, she had suffered permanent irreversible neurological damage, comprising chronic back pain with left lower extremity radiculer neuropathic pain (failed spinal surgery syndrome), significant motor deficit and bladder dysfunction. At the time of initial referral, she had undergone previous spinal surgery with Mr. O’Neill and unfortunately had significant residual pain. She had also had failed minor interventional approaches provided by Prof. Harmon and was refractory to pharmacological approaches. She had undergone psychological evaluation and was considered appropriate for spinal cord stimulation undergoing implantation in February 2015. Stimulation had significantly improved her pain.
54. The plaintiff was reviewed by Dr. Murphy in April 2015, at which stage they chose an intermediate device to cover the lower back and outer extremities and her leg. They carried out a partial radioactive denervation of the sacroiliac joint. This was done in May 2015 and again in January 2016. The plaintiff found this treatment helpful. Dr. Murphy was of opinion that this treatment would need to be repeated in the future as the normal duration of relief obtained following rhizotomy, was in the order of eight/twelve months. On this basis, he was of opinion that should the plaintiff’s SI joint symptoms recur, the rhizotomies will be required to be repeated up to two times per annum. There was a very distinct possibility that she would require this treatment for the rest of her life.
55. Dr. Murphy stated that the plaintiff had reacted well to the spinal cord stimulator. It covered more than 70% of the affected area and had led to more than 50% reduction in pain. However, he stated that this was not a curative therapy; it was pain management. The spinal cord stimulator generator will have to be replaced every eight - ten years. He stated that the plaintiff’s injury will have a lifelong impact. She will always have severe pain in her back. She may be able to get a higher level of relief by means of medication and further intervention, but this treatment had side effects. At present, the plaintiff was at a level where she still has significant pain, but no nerve pain. He stated that he was pleased with the plaintiff’s progress to date.
56. In cross examination, Dr. Murphy stated that the plaintiff had had refractory pain when she was referred to him. On this basis, they proceeded to consideration of the spinal cord stimulator. It was put to him that the plaintiff had been capable of cycling her bicycle. Dr. Murphy stated that with pain, people will do periods of activities such as cycling, or other activities, but they will pay for it in the following days. He was satisfied that having done the trial stimulator, they then proceeded to implant the full spinal cord stimulator. He was satisfied that they had reached a good outcome for the plaintiff in terms of pain relief.
57. There was a risk that the spinal leads could move and if this happened it would be necessary to redo the insertion of the leads. He thought that some of the plaintiff’s emotional difficulties were as a consequence of the pain. If it is possible to reduce the pain this, in turn, could lead to improvement in her psychological health. However, he thought that her pain was primarily physical pain, with psychological consequences.
58. In terms of a prognosis for the plaintiff, Dr. Murphy stated that the plaintiff will have ongoing pain and disability. She will need ongoing surgery every eight to ten years. This will be done as a day case. She cannot have an MRI with the spinal cord stimulator in situ. If she had to have an MRI scan, she would have to have the stimulator taken out.
59. The witness gave an estimate of the current costs associated with replacement of a spinal cord stimulator as follows: theatre cost, €1,980.27; private room bed cost per day, €672.60; semi-private cost per day, €529.36; stimulator prosthesis fee (impulse generator), €23,500; trial stage, €437; surgical fee, €445; and anaesthetic fee, €267. He estimated that the costs of future rhizotomies would be €1,500 per annum.
60. The plaintiff came under the care of Mr. Eamon Rogers, Consultant Urologist, in relation to her bladder problems. Mr. Rogers first saw her in February 2013. He noted that she had been catheterised in hospital and thereafter had very frequent urination. She had been getting up approximately ten times per night to go to the toilet, but this had reduced to four times per night by the time he saw her. She was also going to the toilet every hour during the day. She was retaining approximately 300mls of urine after going to the toilet. That was a significant amount. Mr. Rogers noted that she had no problems with urination prior to the time of the accident. She also complained of having become very constipated. She also had lack of sensation in the genital area, which had led to problems in having sexual relations with her husband. This has caused her psychological difficulty and her libido was reduced.
61. He tested the plaintiff’s muscle strength, which was satisfactory. He also did a urine analysis, which showed that there was some infection in the bladder, which was treated appropriately. They also did a pressure flow study, or urodynamics test. It monitors the capacity of the bladder to store urine and to expel it. The test showed that there was marked reduction in the speed of expulsion of urine from her bladder. Normally, the flow would be 15cc per second, whereas the plaintiff’s was 4cc per second. This showed that there was a significant problem with her bladder. The problem could have been caused by a defect in the bladder muscles; however, her muscle strength had been satisfactory on testing. There was a very weak flow of urine and the plaintiff was retaining 400ml of urine, whereas the normal retention would be less than 250ml, so there was significant urine retention. At that time, Mr. Rogers advised:-
62. Mr. Rogers stated that he carried out the test which revealed that there was no blockage or inflammation. She did have a low grade infection in the bladder. She was required to do self-catheterisation during the day and at night.
63. Mr. Rogers saw the plaintiff again in April 2015, when he had to increase the frequency of catheterisation, as he was not happy that the bladder was emptying satisfactorily. He also prescribed antibiotics for infection. He noted that in the period February 2013 to April 2015, there had been no clinical improvement. For this reason, the plaintiff would need to continue with self-catheterisation approximately three times per day. The doctor thought that the plaintiff had disnergia, which was a lack of synchronisation between the bladder and the tube leading from the bladder. This was most likely caused by nerve damage. The plaintiff was not able to pass urine. There were no signs that the bladder muscle was not working, but there was very deficient emptying, leading to the diagnosis of disnergia.
64. Mr. Rogers stated that the prognosis for disnergia was poor. There was no evidence of bladder improvement at present. In these circumstances, the chances of the plaintiff coming off self-catheterisation was very poor. It was likely that she will need to do self-catheterisation for the rest of her life. The doctor stated that there was a new procedure involving sacral neuro modulation, which involves inserting a modulator into the sacrum. This was a very specialised procedure and the plaintiff would have to go to the top surgeon in Belgium for this treatment. The defendant objected to this portion of the evidence as it had not been pleaded.
65. In terms of future care, Mr. Rogers stated that the plaintiff will need ongoing urinary care. She should be seen every three months, which might be extended to every six months. Her kidneys would have to be monitored and her bladder should also be monitored. If she catheterised properly, hopefully she would not get infections. In terms of expense, she will incur the costs of catheters which cost approximately €300 per month, together with other medication and visits. He estimated the annual costs of urological care at between €6,000/€8,000 per annum.
66. In cross examination, Mr. Rogers stated that catheters were available on the medical card. The plaintiff would need three to four reviews per annum. The cost of seeing him was €100 per visit. It was put to Mr. Rogers that in a letter dated 11th October, 2012, Dr. Jahnke had stated that when he saw the plaintiff on 8th October, 2012, she had reported that bladder function was back to normal, but she was not sure if there was any retention. Mr. Rogers stated that he was not aware of that. He pointed out that in medicine they say that the bladder is an unreliable witness, meaning that they cannot rely on the plaintiff’s account of bladder function. For that reason, they had done a urodynamics study, which showed a reduction in urine flow. Mr. Rogers further stated that he was not aware that the plaintiff had complained of irritable bowel syndrome in 2010. She did not tell him of any tests that were done at that time. Mr. Rogers stated that if the bladder was not working properly, you can have urine backing up as far as the kidney, which can be damaged in the process. He stated that catheterisation gives people control and reduces the amount of urine in the bladder. It is used to drain an excessive volume of urine in the bladder. If the bladder is not emptied properly, the urine may be caused to spill out of it. Catheterisation is used to avoid problems with the kidneys.
67. Mr. Rogers disagreed that stress or anxiety would cause the bladder problem. Here the tests had showed that the bladder was not normal, but the treatment in the form of catheterisation can have psychological sequelae. He noted that the plaintiff was very distressed about the lack of genital sensation and the effect that it was having on the sexual relations that she had with her husband. He did not think that if the pain was addressed, that this would have a positive effect on the bladder problems.
68. In re-examination, Mr. Rogers dealt with the psychological fallout of self-catheterisation. It causes a change in lifestyle. It can be difficult for a person to get privacy to insert the catheter. It has to be done a number of times each day. There is a loss of body image in carrying this out. There can be psychological consequences. This was well recognised in the medical literature.
69. The plaintiff was reviewed by Prof. Harmon on 11th August, 2015. At that stage, the spinal cord stimulator had been inserted and Dr. Murphy was also performing pain intervention on her. Prof. Harmon stated that this regime would continue. The spinal cord stimulator was used for persistent pain. However, it does not remove all the pain. The use of the stimulator can be reviewed by the pain specialist and she will require further nerve root blocks. He thought that Dr. Murphy was administering nerve blocks approximately three times per year.
70. Prof. Harmon also noted that the plaintiff’s mood was not good, because she was affected by constant pain. Her symptoms were consistent with the described mechanism of injury. Subsequent progress had not been unusual. He was satisfied that the plaintiff had done everything that she could to deal with her pain.
71. In cross examination, a letter written by Dr. Regan, the plaintiff’s GP, on 22nd May, 2008, was put to the witness, wherein the GP had stated that the plaintiff had come to her on 19th May, 2008, complaining of severe back pain, radiating down her left leg with associated pins and needles. Prof. Harmon stated that he was not aware of that episode, nor was he aware that the GP had sought a consultant’s review. However, such a complaint would not be unusual. He stated that the incident in May 2008, where the plaintiff had suffered injury to her back while chasing cattle, would not affect his diagnosis. He stated that if a person has persistent pain, he would not be surprised that the person had psychological sequelae. If a person has pain, it is common to have psychological stress. He did not agree that if her mood improved, this would cause an improvement in her pain.
72. Evidence was also given by Dr. Dominic Cooke, Consultant Physician and Rheumatologist, who had seen the plaintiff in February 2013. At that time, she complained of pain in her lower back and neck. She had weakness in the left foot. His opinion was that she had suffered an injury to the discs in the neck and lower back. At that time, she was due to see Mr. O’Neill in the Mater Hospital.
73. The plaintiff was reviewed by Dr. Cooke on 9th December, 2013. He noted that when she had fallen in 2008, an MRI at that time showed mild degenerative changes in her lower back. A further MRI after the accident, showed a disc protrusion in the lower back. A further protrusion at L3/4 was seen on a subsequent MRI. Mr. O’Neill had carried out surgery to remove the disc at that level. Surgery had improved her condition, but she still had ongoing problems. She remained in severe pain in her lower back and left leg. At that time, she was being considered for a spinal cord stimulator. She complained of pain in the night and during the day. She needed a lot of medication. She also had to insert a catheter three times per day. That was a bad outcome from her injury and was very distressing to her. Having to insert a foreign body into the urethra three times a day, was a tricky thing and would leave the plaintiff open to infection. She required antibiotics on a constant basis, which can cause difficulties with antibody resistance.
74. Examination revealed that she used a stick and she had pain in her lower back. There was also scarring to her lower back and abdomen. Her left leg had weakness and hypersensitivity. Dr. Cooke felt that she was depressed. She needed medication on a daily basis. In terms of work, he was of opinion that her work capacity was severely restricted. She would not get employment outside the home. He was of opinion that an employer would not employ her. She had to try to work around the pain. She will always have to be very “back conscious”. She would have disc problems indefinitely.
75. In cross examination, Dr. Cooke stated that the plaintiff had told him about the fall which had occurred in May 2008. She had not told him about any complaint of irritable bowel syndrome in 2010. He stated that she developed urinary incontinence and it went with urinary retention which can cause overflow incontinence. He was not aware that the plaintiff had seen Mr. Mahalingham in relation to the accident in May 2008. It would appear from the GP’s letter that there was some element of back pain, but it seemed to have settled within a number of months.
76. Dr. Cooke stated that in a letter dated 24th May, 2013, he had expressed the opinion that the plaintiff had significant ongoing disability and because of that disability, she was unfit to return to her usual work. He was of the opinion that she would probably be unfit for the rest of the year and probably longer. In a further letter dated 9th December, 2013, he noted that the plaintiff had improved, but unfortunately she continued to have significant and probably permanent ongoing pain and disability. It was clear that she would never be able to return to her work. She may require assistance to perform her housework and other day to day activities. He stated that he had heard the plaintiff’s evidence in relation the paperwork/administration work that she had carried out on the farm. He noted that there were strict recording requirements for both cattle and horses. She was able to do this work, because she could do so in her own time, when she felt up to it. He felt it was good for her to do this work. The spinal cord stimulator had helped her pain and this, in turn, had helped her mental health. He was hopeful that she might make further improvement.
77. Evidence was also given by Dr. Aideen Henry, Consultant Physician in Orthopaedic and Sports Medicine. She had taken over from Dr. Cooke on his retirement. She had seen the plaintiff on 15th June, 2015, after the plaintiff had received treatment in the National Rehabilitation Hospital and after the spinal cord stimulator had been inserted in February 2015. This had given some improvement in her back pain and it had reduced from 7 out of 10 to 3 out of 10. The pain was worse in the evening and at menstruation. She had had injections to the sacroiliac joint. The plaintiff had not been able to work since the accident. She had functional limitations in that she could not drive more than one hour. She could not carry a full laundry basket. She required a stick when walking, which was limited to 20 minutes per day, she could not stoop and she could not do heavy housework. She was still required to take a significant amount of medication. She also took antidepressants. She was on Keflex, an antibiotic, one per day. She was on painkillers, Oxybutynin 2.5 and Palexia 1 three times a day.
78. In June 2015, she complained of ongoing lower back and left leg pain. This was present day and night. She was very limited in her sleeping posture as she had to get into a certain position to minimise the pain. The constant left leg pain affected her left posterior thigh, outer calf, top of the big toe and lateral foot. Any exertion increased her low back and left leg pain. Overall the pain was 3 out of 10 since the spinal cord stimulator was inserted. Since the accident, her bladder had not worked normally. She had to self-catheterise three times a day and was on long-term daily antibiotics to prevent infection. She also had psychological upset secondary to the disability and chronic pain. She was on antidepressants. She had counselling while she was in the National Rehabilitation Hospital. Pre-accident, the plaintiff had been an athlete. She was a county footballer and was doing triathlons and she walked four miles every morning under 50 minutes, so understandably, the disability and the chronic pain had been devastating for her. She also had surgical scars from the spinal surgery. She had three scars in the lower back and a scar on the left anterior hip for insertion of the spinal cord stimulator.
79. Dr. Henry was of opinion that the plaintiff suffered from the following:-
(i) Chronic low back pain and left leg pain secondary to a slip and fall accident, which caused discal injury causing radiculer pain to her left leg and irritation of the nerves to her bladder. In terms of a prognosis, she noted that it was fortunate that the spinal cord stimulator had reduced the pain to some degree and had enabled her to mobilise more. She is likely to have pain for the foreseeable future at her current level.
(ii) She had chronic pain and dysfunction of the bladder due to cauda equina syndrome secondary to her disc injury, requiring thrice daily self-catheterisation and risk of infection. This was likely to continue for the future.
(iii) She had psychological upset due to chronic pain and functional impairment.
(iv) She had permanent surgical scarring from her low back surgery and insertion of the spinal cord stimulator. These scars should fade further but were permanent.
80. In cross examination, Dr. Henry stated that she used the phrase cauda equina syndrome, as this described a difficulty with the bladder, but the source of the difficulty was in the spine. It would usually be referable to damage to a disc or prolapse in the lower back. The doctor was of the view that the nerves in her back had been traumatised at the time of the accident, giving rise to bladder problems in the form of cauda equina syndrome. Her complaints of urinary dysfunction, numbness and pain were consistent cauda equina syndrome.
81. Evidence was given by Dr. Mary McInerney, Consultant Psychiatrist. She stated that when she saw the plaintiff in December 2012, the plaintiff was complaining of a constant severe pain in her lower back. She also had a shooting pain in the pelvis and perineum areas. She also had urological difficulties. The doctor noted that the plaintiff had been very busy pre-accident. She worked from 09:15hrs to 18:00hrs for two days on one week and three days on the next week. She also did all the administration for the farm. She also helped on the farm in the form of cleaning out stables, exercising horses and lunging the horses. She would collect the children from school. She then brought them home and prepared the dinner. She would then get the horses ready for the night and she would get the paperwork done for the next day. She also did ad hoc jobs in the form of painting of fences and the exterior of their home. She looked after the farm when her husband was away at sales. She did all the marketing, book keeping and banking for the stud. Pre-accident she was very able, confident and outgoing. She was able to multitask.
82. The plaintiff gave the following account of her typical day post-accident: she would get up and give the girls their breakfast, prepare lunches and get them ready for school. If she had a doctor’s appointment or a physio appointment, she would go to that. She would potter around the house or lie down depending on how bad the day was. She cooks the dinner. She would start the fire in the stove. She would do the homework with the girls. She does as much paperwork as she can. She stated that if it was a nice day, she would sometimes go for a walk up the yard to check on the horses and see how they look. If she could, she would cook dinner for her mother and father-in-law just to give them a break.
83. Dr. McInerney said that she did the Beck tests for anxiety and depression and the plaintiff scored 24 on the scale, which was high. She had a definite psychiatric reaction to the trauma and had symptoms of PTSD. There was evidence that she had sleep disturbance with nightmares, dreams, flashbacks and intrusive thoughts, hyper vigilance and alertness, along with poor concentration. The plaintiff was worrying about the future and the fact that she could not plan ahead and her daily routine was a problem for her also. Her quality of life and sense of well being were reduced. Dr. McInerney advised the plaintiff to follow a mindfulness based stress reduction and cognitive behavioural programme.
84. The plaintiff was reviewed on 6th February, 2016, when the doctor noted that she had improved since the insertion of the spinal cord stimulator. Her mobility had improved and she only required a stick on uneven ground and in crowded places. Her sleep had improved. She had stopped taking the drug Lyrica, which had distressing side effects of drowsiness, dry mouth, and concentration difficulties. She still had problems with urinary frequency especially at night. She had to self-catheterise three times per day. She had to bring a supply of pads and wipes with her when she went out. This was embarrassing for a woman. She was embarrassed by leakage. This was distressing for her having regard to her relatively young age of 47 years.
85. Psychologically, she was very driven to be well. She had been helped by ongoing counselling and by the care of her GP, who was excellent. She was on antidepressant medication and this had helped as well. She was, however, very distressed by the fact that her symptoms had had an adverse effect on her relationship with her husband. She had not had sex with him and stated that she had zero interest in that activity, due to the fact that she had no sensation in the pelvic area. She felt angry at this state of affairs. Socially, her girlfriends had stopped inviting her out. She felt that she was probably not great company. Pre-accident, she used to go out with the girls a couple of times per month. She was able to go out and meet people for coffee. However, she had to plan her outings very carefully.
86. She was unable to do activities around the house and the farm and it was difficult holding her younger child, due to back pain. She has to leave extra time for travelling, as she has to stop during the journey in order to self-catheterise. She stated that this was a complete loss of one’s dignity but it just had to be done. She was not able to drive for long distances e.g. attending medical appointments in Dublin. For these, she used the train. She stated that overall, her relationship with her husband had improved a little bit. In relation to her ongoing pain, she was pleased with the progress which had been made, particularly with her left leg. However, she said “pain runs my life for me”.
87. Dr. McInerney was of the opinion that the plaintiff had gone through the grieving process of anger, denial, bargaining and depressed phases and was at the acceptance phase now, although she did not like the outcome. She said that she had days where she was more accepting of her disability than others. She has benefited from the enormous support of her GP, her antidepressant medication and counselling, which is presently every three weeks. Dr. McInerney felt that the plaintiff should continue with counselling, which should probably be monthly for a year and then maybe every two months in the second year and probably three months thereafter. She noted that the plaintiff’s husband had to manage her and advise her if he saw her doing too much. He was an excellent support to the plaintiff.
88. Psychosocially, she still misses out with her friends and her activities. She confirmed that she misses her dancing, set dancing, waltzing and jiving. She was also disappointed when her local team, Milltown Malbay, were in the county final for the first time in 25 years in 2015, and she could not go to Cusack Park in Ennis, as there were no toilet facilities and no place for her to sit.
89. Dr. McInerney stated that from an emotional and psychiatric point of view, the prognosis was guarded. However, she remained motivated and driven to be well. She will need to stay on antidepressant medication. It is possible that with counselling over a number of years and if improvement is made, it could be possible to give a trial period without medication. However, the doctor felt that on balance the plaintiff would need medication in the long-term. She agreed with the assessment given by the one of the defendant’s doctors that this was a catastrophic and life changing event for her as a reasonably young woman.
90. In the course of cross examination, the doctor was asked about the diagnosis that she had made of PTSD and adjustment disorder. Dr. McInerney stated that the plaintiff had had nightmares of falling, just after the accident. She also had sleep disturbance with nightmares, dreams, flashbacks and intrusive thoughts, hyper vigilance alertness, along with poor concentration. These were indicative of PTSD. She felt that she had some symptoms referable to PTSD and other symptoms related to the adjustment to the effects of her injury. The PTSD had been evident initially after the accident and then had reduced. She then had the adjustment disorder since that time. She still had intrusive thoughts of her five-year-old daughter finding her and lying beside her and being very distressed at the scene.
91. Dr. McInerney confirmed that the plaintiff had made improvement. Her distress at present was more due to the urinary frequency problems. She was very motivated and proactive. She had given the doctor an account of her typical day both before and after the accident. She had loved her life on the farm with her husband and the horses.
92. Finally, evidence was given by Mr. Martin Walsh, the plaintiff’s husband. He stated that prior to the accident his wife was great fun. They had a good laugh together as they worked hard building up the farm. He said that his wife was very fit and active. They had got married in 2003 and then bought the farm.
93. They purchased a stallion called Sarco in Belgium. In the initial stages, their main focus was to get numbers of his progeny on the ground. To this end, they covered 200/300 mares, so that Sacro would get well known. Mr. Walsh stated that Sarco was now fifteen and is one of the most popular stallions in the country. At present, the farm is 130 acres and they also lease a further 40 acres. They have 70/75 horses at any given time and 50 cattle.
94. Prior to the accident, his wife had helped out on the farm. In the morning, she would clean the stables and put the horses on the walker. She would then go down and prepare dinner. In the afternoon, she would lunge the horses for 15 minutes each; then she would put them on the walker and would dry them off. She would do that until approximately 18:00hrs. He said that he and his wife loved working together on the farm. Over time, their business became more profitable.
95. Mr. Walsh stated that the plaintiff had had a fall while chasing cattle in 2008. However, she recovered quite quickly after that accident. He stated that she was very healthy before the accident in the supermarket. She had done fun triathlons with her sisters.
96. In November 2011, she took up part-time employment in Kilkee. She had said that she wanted to work again and missed adult company. She worked part-time for a number of days each week. If they were lunging difficult horses at that time, they would do it when she was around, as she was good at lunging the horses. She also did the paperwork for the farm. When cattle joined the herd, they had to be registered and this had to be done again when they left the herd. The cattle are tested by the vet annually. He would stamp their cards and these were kept on the farm. She also had to register the horses and have passports for them. He thought that this would involve be approximately three hours of paperwork per week.
97. He stated that they had done a lot of planning for the future. The plaintiff always wanted to return to work. When she did the part-time work, his mother would look after the children.
98. In terms of the plaintiff’s injuries, Mr Walsh said that these had had a devastating effect on her. The plaintiff had gone everywhere possible to try to get a cure for her back. She just wanted to get back to how she had been prior to the accident.
99. Mr. Walsh stated that the farm business had suffered since 2012, due to his having to go to medical appointments with his wife. They had calculated the quantum of lost hours on the farm at €55,000. He stated that the accounts showed a loss from the year after her fall. This was later reduced to a claim for €20,000.00.
100. The witness stated that the plaintiff had become very down when she was not able to find a cure for her back pain. He said that it had been hard on both of them. The plaintiff blamed herself to an extent for falling. He said that, to be honest, he also blamed her for that. Their plans for the future had been dashed by the accident. He stated that the plaintiff was irritable with the children on occasions. He stated that her injury had had an effect on them both. He stated that they could not have sexual relations and this was something that had been important to them in their marriage.
101. In relation to her present condition, he said that things had been better since the insertion of the spinal cord stimulator. The plaintiff had become resigned to her level of disablement. He had become resigned to that as well. She accepted that she would have ongoing pain for the rest of her life. He stated that despite his wife’s pain and disablement they had tried to give happy memories for their children. In this regard, they had gone to a One Direction concert in Croke Park. While they managed to go to the concert, the plaintiff had paid for it later on with increased pain in her back. He stated that the children mind the plaintiff and watch out for her. His daughter, Eva, was troublesome after the accident. She was very angry at what had happened. She is much better now. He stated that the plaintiff was able to put items into the oven, but he would have to take them out of the oven when they were cooked.
102. In cross examination, it was put to the witness that if the plaintiff had a good life on the farm and also had part-time work, she was unlikely to give up that life for full time employment. Mr. Walsh disagreed. He stated that they had two young girls and they expected them to do well and to go on to third level education. They had always planned for the plaintiff to go back to work, so as to put their daughters through college. She had gone back to part-time work to get the children used to the idea of her working outside the home.
103. In relation to the business accounts, the witness stated that the land was in his name and that the business was also in his name. He stated that if there was a loss, it would be his. He did not pay his wife a salary, nor did he pay a salary to himself. He stated that the business belonged to both of them. He stated that the €55,000 was not money that the plaintiff would have earned.
104. Mr. Walsh stated that in 2013, there was a wages and salary bill of €4,510 and a payment to a subcontractor of €5,922. He stated that this arose due to the fact that he had to hire in labourers to do the baling for him. These were agricultural labourers. In 2014, the payment to them had been €6,000. He stated that if he had done the baling himself, he would not have had to pay anyone else to come in and do it.
The Defendant’s Medical Experts
105. The plaintiff was seen by Dr. Dennis O’Sullivan, Consultant Urologist, retained on behalf of the defendant on 28th January, 2016. He stated that it was not well known why a back injury should cause problems with the bladder. Cauda equina syndrome causes pressure on the nerves at the end of the spine. The main feature is that it affects the bowel and the bladder. He stated that the plaintiff had been able to pass urine after the accident, but with difficulty. Catheterisation allows a person to pass urine and is used to get rid of the last of the urine from the bladder, so as to prevent infection.
106. In relation to a prognosis, he stated that there had been improvement over time, so it was possible that there would be some further improvement. There could be more extrusion from the disc space and this may require further operative treatment. Even if there was no operation, there could be gradual nerve repair over the next five to ten years. There was also the possibility that the plaintiff would get used to her condition. He accepted that the plaintiff would have a degree of problems into the future. There was a reasonable prospect of improvement, but one could not tell what that would be. He thought that the function of her bladder, should not affect her ability to work, nor should the self-catheterisation.
107. In cross examination, the witness accepted that self-catheterisation was distressing in the beginning. Some people get used to it. There were hygiene issues surrounding it, the main thing was to avoid touching the toilet bowl. Using the catheter created a risk of infection; the patient had to put the catheter in quickly without touching the skin.
108. He stated that there was a reasonable chance of an ongoing slow progression for improvement, but it would be gradual and would not be huge. He accepted that in his report he had said that bladder function was likely to remain the same as at present. He had not said that there would be an improvement.
109. Dr. O’Sullivan accepted that if after the accident there was something approaching one litre of urine left in the bladder, that was a significant amount. She only voided 196mls. She was leaving a significant amount of urine in the bladder. He accepted that the peak flow test was low at 4mls per second. It was suggestive of a significant underlying problem. Her delay time in voiding the bladder at 114 seconds was a long time. The residual urine at 538mls was outside the normal range.
110. He accepted that in his report he should have said that there was some improvement and that there may be some improvement in the future. He could not say that her problems will disappear. As things stood at present, further improvement was not likely in the medium term.
111. In relation to possible further treatment, he said that a sacral nerve stimulator was a box with wires going to the nerves in the sacrum. It causes a readjustment of the nerve impulses. The nerves can be damaged or inhibited by pressure of injury further up the spine. The implant over stimulates the nerves and can allow the bladder to work normally. The wires block some of the nerves, to allow the patient to pass urine. The implant can be used to inhibit the muscle so as to allow the bladder to contract more easily. He stated that the treatment was expensive, costing about €9,000/€12,000, together with hospital costs, which would give a total cost of circa €15,000. The stimulator would have to be replaced every four - five years. The procedure could be done as a day case procedure. At present, a patient would have to go to the UK for this treatment. The treatment has a 30 - 50% success rate.
112. The witness stated that the plaintiff will have to remain on antibiotics indefinitely to guard against UTI’s. The bacteria can become resistant to the antibiotics. This was a concern going forward. He stated that the plaintiff had had a problem having sex with her husband. He stated that this problem will continue. The witness stated that the plaintiff would have to have ongoing urological reviews approximately twice per year.
113. The plaintiff was examined by Dr. James Fehily, a general practitioner, on behalf of the defendant in September 2015. He noted that she had had previous surgery to her back by Dr. O’Neill in 2013. This had apparently only given her six weeks pain relief. She did not mention to him that she had had three falls in May 2013. She had gone to the National Rehabilitation Hospital for eight weeks in 2014. However, she continued to have severe pain. She had been administered a number of injections by Prof. Harmon. She saw Dr. Murphy in 2015, and he inserted a spinal cord stimulator. This had led to improvement in her back pain, which had been rated at 10/10, but had reduced to 6/10. He noted that she had to self-catheterise three times daily. Her mood was quite depressed. She stated that her sleep had improved since insertion of the spinal cord stimulator. She could do light housework. She continued to take pain relieving medication. Examination revealed limitation of movement of the lower back and scars to the lower back. She had a loss of sensation on the left side. She walked with a limp. The doctor was of opinion that the plaintiff had suffered a soft tissue injury, which had required surgery and insertion of a spinal cord stimulator. He thought that there had been a significant incident in 2008, when the plaintiff had suffered back pain with sciatica following a fall in the yard. MRI at that time revealed that she had degenerative changes in her spine. He stated that if the accident had not happened, where there had been a significant incident in 2008 with back pain and sciatica, this was a negative prognosticator.
114. In cross examination, the doctor stated that he did not have any documentation or pleadings when he examined the plaintiff. He only had the covering letter from the defendant’s solicitor. He had been shown the reports of Mr. O’Neill before giving evidence. He stated that it was significant that the plaintiff had had a fall in 2008, which had given rise to symptoms for a number of months. He accepted that the plaintiff had got back to full activity after that accident. However, with the existence of degenerative changes in the spine, this part of the spine would be vulnerable to further injury.
115. He accepted that the injury to the plaintiff was a significant injury, which had required operative treatment and insertion of a spinal cord stimulator. He stated that the plaintiff will have chronic long term pain and disability. She will not be as active as prior to the accident, but hopefully she would get back to doing light housework and going out on her bicycle with family and would be able to continue to do the paperwork for the farm.
116. Dr. Fehily accepted that self-catheterisation was a significant disability. From the history that she gave, it would appear that she had cauda equina and that she had a significant urinary compromise, which necessitated her to self-catheterise on a daily basis. He accepted that it was difficult for a person to deal with this. However, a person could adapt to it. She was at risk of UTIs.
117. The plaintiff would have to be very careful to avoid any further compromise of her back. He stated that she had progressed well and was a resilient person. She would have to learn to live with these limitations. She will have ongoing pain and ongoing treatment. She is not able to do heavy housework, nor can she ride horses. He thought that she was able to do light housework and could do paperwork. Perhaps she might be fit for part-time work. However, he did not think that any employers would hire her, given her history.
118. Evidence was given by Mr. Gary O’Toole, Consultant Orthopaedic Surgeon. He stated that as a result of the insertion of the spinal cord stimulator, the clinical position had improved. In terms of her leg pain there was 100% coverage and an 80% decrease in pain in the leg. In the back, she had 70% coverage and a 50% reduction in her pain. She had told him that her pain had reduced to 3/10.
119. Examination on 2nd February, 2016, revealed that she walked with an antalgic gait, she had deceased reflexes on the left side and a loss of power on the left side. Straight leg raising was limited to 30 degrees. He stated that the consequences of the accident for the plaintiff were “catastrophic”. On a pain scale out of ten, the plaintiff would be a 3 or 4/10. She had had lower back pain in the past and this made her more susceptible to injury.
120. Mr. O’Toole stated that had the accident not occurred, and given her previous back difficulties, it was difficult to estimate what her capacity for work would have been. She had some degenerative changes in her spine. A large number of people could have these changes, but would not have symptoms. He could not say that she would not be able to manage the drive to work. A lot of people could have pain after a long commute/drive, but they would get out of the car and shake off their pain.
121. In cross examination, it was put to the witness that the plaintiff had had an accident in 2008, but that she had been pain free for approximately four years and had returned to full activity. Mr. O’Toole stated that that was a very good clinical outcome. He accepted that she had returned to full activity and she had had no interaction with any medical personnel in relation to her back subsequently. The back complaint had been treated conservatively. He accepted that she seemed to have made an excellent recovery from that fall.
122. He stated that in view of her ongoing pain and given that she was 47 years of age and had to self-catheterise, it could be said that she had had a catastrophic outcome from her injury. However, she had made progress following operative treatment and the insertion of the spinal cord stimulator. He accepted that she was on strong medication and still had pain on a daily basis. It was possible that she might develop a tolerance to the medication and may need an increased dose. She would require injections in the future. He said that the plaintiff will have to live with her back pain and bladder problems.
123. The plaintiff was examined by Mr. Stephen Young, Consultant Neurosurgeon, on 21st December, 2015. He stated that there was no radiological evidence of cauda equina. It involved bladder and bowel difficulties and leg pain. One would expect changes at the base of the spinal cord, but these were not present in this case. He stated that if a person had advanced degenerative changes, one could predict that they will probably have pain in the future. However, if a person does not have abnormal degenerative changes, one could not say this. If a person had degenerative changes and had been referred for specialist consideration, this meant that the injury was more symptomatic.
124. In cross examination, the witness accepted that the plaintiff appeared to have been symptom free for four years prior to her accident in Tesco’s. The documentation suggested that she had had pain in her back for three to four months after the fall in 2008. It was put to the witness that Prof. Kavanagh, Consultant Radiologist, had said that 68% of 40 year olds, would have degenerative changes evident on a scan, but would be asymptomatic. Mr. Young agreed with that assertion. He accepted that if the plaintiff had hurt her back, but subsequently became symptom free, that incident would not be a concern. He accepted that the plaintiff’s current symptoms and complaints were serious.
125. Finally, evidence was given by Prof. Eoin Kavanagh, Consultant Radiologist. He had not met the plaintiff, but had reviewed her MRI scans. The first scan was taken on 10th June, 2008. It revealed disc desiccation at L5/S1, which was indicative of degenerative changes. There were a number of disc bulges. There was a disc protrusion at L5/S1. This was the most relevant finding on that scan. He stated that degenerative disc disease was typically progressive. The findings on the scan can be seen in both symptomatic and asymptomatic patients. It would be hard to say if these would have affected the plaintiff even if there had been no accident. All he could say was that the condition was usually progressive and would not be a positive finding.
126. The second MRI scan was taken on 9th September, 2012. It revealed disc disease at L4/5 and L5/S1. There was also a subtle finding of a disc herniation at L4/5.
127. The third MRI scan taken on 14th February, 2013, showed degenerative disc disease at L4/5 and L5/S1. There was a disc extruding (leaking) and impinging the L4 nerve. Other nerves were not impinged. It was a subtle change, but was evident. The fourth MRI scan taken on 2nd May, 2013, revealed disc bulges at L4/5. At L3/4 there was a mild disc bulge, what one would expect to find post operatively. There was no narrowing of the central canal or foraminal stenosis. At L4/5 there was a disc bulge on the right. At L5/S1 there was a small disc protrusion, which was unchanged from previous scans. The fifth MRI scan taken on 30th October, 2013, was unchanged.
128. Prof. Kavanagh gave his opinion that the MRI scan of 2008 showed degenerative disc disease present in the spine. The findings were mild. This was a chronic process. Such changes are to be found in both symptomatic and asymptomatic patients. Many people can have changes on a scan, but be without symptoms. It was impossible to say what would have happened if no accident had occurred. He agreed with Dr. Cooke that this was not a desirable position to have in 2008.
129. Prof. Kavanagh stated that he had seen the scan taken in 2008. However, he was not aware whether the plaintiff had made a full recovery from that incident and had no further pain for the subsequent four years. He could say that back pain can come and go over time. Two thirds of the population could have changes on scanning, but could be asymptomatic. All he could say was that the plaintiff had degenerative disc disease, and this can progress over time.
130. The MRI scan taken post accident showed a subtle mild disc bulge. It progressed over time. Where there was an extrusion, part of the inner content of the disc was squeezed out. Surgery was a decision for the surgeon. It was dependent upon the findings on the scan and the clinical situation at the time. After the fall in the supermarket, there was a subtle finding, which became more pronounced later on. There was a temporal relationship between the accident and the signs evident on the MRI scans.
Assessment of General Damages
131. The defendant submitted that in assessing the quantum of general damages, the court should have regard to the decision of the Court of Appeal in Payne v. Nugent [2015] IECA 268. In the course of giving the judgment of the court, Irvine J. had the following to say in relation to the approach that should be taken by a trial court when assessing general damages:-
“16. Needless to say it is regrettable that people get injured due to the negligence of others given that an award of damages for pain and suffering cannot restore the victim to the physical or mental status they enjoyed prior to the infliction of their injuries. In this context it is important that compensation, when awarded by the court, in respect of pain and suffering should be reasonable and proportionate in all of the circumstances.
17. I am mindful of the fact that while it cannot be stated that there is a cap on general damages for pain and suffering, from the awards made in recent times there is at least a perception that the very upper range for compensation of this type rests in or around the €400,000 mark. The most catastrophically injured members of society who suffer great pain and distress and who may never work or enjoy the benefits of a loving relationship and who may remain dependant on the care of others for fifty or sixty years or indeed for the whole of their lifetime are regularly awarded general damages for pain and suffering in the region of €400,000. So one of the questions I ask myself when considering whether the award made in this case was reasonable or proportionate is whether the trial judge could have been within the appropriate range when he awarded the plaintiff a sum that placed her injuries in terms of value approximately one sixth of the way along an imaginary scale of damages for personal injuries which ends at €400,000 for the catastrophically injured plaintiff. In my view, thus assessed, the award which he made to the plaintiff was not reasonable or proportionate. That is not to say that this is a formula that must be applied by every judge when assessing damages for pain and suffering but for me at least it provides a type of benchmark by which the appropriateness of the award made may helpfully be evaluated.
18. For my part I fear there is a real danger of injustice and unfairness being visited upon many of those who come to litigation seeking compensation if those who suffer modest injuries of the nature described in these proceedings are to receive damages of the nature awarded by the trial judge in this case. If modest injuries of this type are to attract damages of €65,000 the effect of such an approach must be to drive up the awards of those in receipt of the more significant middle ranking personal injuries claims such that there is a concertina type effect at the top of the scale of personal injuries. So, for example, the award of general damages to the person who loses a limb can be little different to the award made to the quadriplegic and that simply cannot be just or fair.
19. So for my part, while I accept that the damages awarded for pain and suffering must be reasonable having regard to the injuries sustained they must also be proportionate to the awards commonly made to victims in respect of injuries which are of significantly greater or lesser import. Modest injuries should attract moderate damages.”
132. In Nolan v. Wirenski [2016] IECA 56, the court held that the current maximum award endorsed by the Supreme Court for the most serious injuries is in or about €450,000. The court again reiterated that when assessing the quantum of damages in a personal injuries case, the trial court should have regard to the scale of damages ranging from a very low figure up to €450,000. By reference to that scale, the judge should decide where on the scale, the plaintiff in the case before him stands. As to how that evaluation should be carried out, the Court of Appeal gave the following helpful guidelines:-
“40. As to where on the spectrum of awards the injuries of an accident victim such as Ms Nolan should be located will be determined by the nature and extent of the physical or psychological trauma induced by the defendant's wrongdoing and the extent to which they may be expected to recover therefrom. There is no template or formula to be applied. Judges, I suggest, tend to look to the presence or absence of particular factors and features to guide them as to the seriousness of any particular injury. They might have regard to the likely answers to the following questions;-Was the incident which caused the injury one which was traumatic and caused distress? Did the particular plaintiff require hospitalisation and if so for how long? What did they suffer in terms of pain and discomfort or lack of dignity during that period? What type and number of surgical interventions or other procedures did they require during that period? Did they need to attend a rehabilitation facility at any stage and if so, for how long? While recovering in their own home, were they capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependant in all or some respects? If the plaintiff was dependant, why was this so? Were they, for example, wheelchair bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependant? What if any limitations had been imposed on their activities such as leisure or sporting pursuits? For how long were they out of work? To what extent was their relationship with family and friends interfered with? Finally, what was the nature and extent of any treatment, therapy or medication required? These are all matters that might be relevant to considering the seriousness of the injury and the amount that ought to be awarded in respect of pain and suffering to date.”
133. Irvine J. further stated that, as Denham J. advised in M.N. v. S.M. [2005] IESC 17, damages can only be fair and just if they are proportionate, not only to the injuries sustained by the 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. The court went on to make the following observations in relation to the awards made in personal injury cases:-
“As she stated at para. 44 of her judgement ‘there must be a rational relationship between awards of damages in personal injuries cases’. Thus it is important that minor injuries attract appropriately modest damages, middling injuries moderate damages and more severe injuries damages of a level which are clearly distinguishable in terms of quantum from those that fall into the other lesser categories. In this regard, just because a judge describes an injury as significant this does not mean that the damages must be substantial. Any injury to an otherwise healthy individual is significant. However, when it comes to assessing damages, what is important is how significant the injury concerned is when viewed within the whole spectrum of potential injuries to which I have earlier referred.”
134. I have kept in mind the principles set down in those cases when assessing general damages in this case. In summary, it is clear that the plaintiff has suffered a serious injury to the muscles and ligaments of her lower back. This has caused her to experience severe pain in her lower back, radiating into her left leg. Initial treatment comprised the administration of injections and the prescription of strong pain relieving medication. When this did not resolve the plaintiff’s symptoms, she came under the care of Mr. Padraig O’Neill, Consultant Surgeon, who removed an extruded disc fragment from her lower back in February 2013. However, this operation only provided limited relief of some six weeks in duration. In 2014, the plaintiff obtained treatment from the National Rehabilitation Hospital, where she was an inpatient for eight weeks. During this time, she had extensive physiotherapy, occupational therapy and hydrotherapy. Unfortunately, this did not resolve her symptoms. In the summer of 2014, she went to the UK and came under the care of Prof. Jeremy Fairbanks. He was of the view that the plaintiff had a severe chronic pain problem. Some would use the term “chronic pain syndrome” and others would use the term “pain sensitisation”. He noted that she was disabled in all aspects of her life. He recommended that consideration should be given to implantation of a spinal cord stimulator.
135. Prof. Harmon continued to administer injections to the plaintiff’s back. He then referred the plaintiff on to Dr. Paul Murphy, who inserted a spinal cord stimulator in February 2015. This has given the plaintiff considerable relief in relation to her back and leg pain.
136. However, the plaintiff continues to have constant pain on a daily basis. She can use the spinal cord stimulator to regulate this pain, but she is not able to eradicate the pain completely. She has said that it is at a level of approximately 3/10 at the present time. In addition to the use of the spinal cord stimulator, the doctors are of opinion that the plaintiff will require treatment with rhizotomies on an ongoing basis.
137. The plaintiff also suffered urological injuries in the accident. She has not been able to empty her bladder efficiently, as she has a poor flow rate and is retaining a considerable amount of urine. For this reason, she is obliged to self-catheterise three times per day. This is a particularly distressing aspect of her current condition. Some of the doctors think she has cauda equina syndrome, while Mr. Rogers is of the view that the plaintiff has Disnergia, which was most likely caused by nerve damage suffered in the accident. The plaintiff will have to self-catheterise for the rest of her life. An additional distressing symptom has been that she has lost sensation in the perineum area. This means that she has no sensation during sexual intercourse. Sexual relations with her husband have been severely damaged; she finds this most distressing.
138. The plaintiff has also suffered psychological sequelae in the form of PTSD and more recently an adjustment disorder and/or a grief reaction. The plaintiff is required to take antidepressant medication. She also receives counselling on an ongoing basis. Dr. McInerney has stated that she is likely to have to stay on antidepressant medication for the rest of her life.
139. The plaintiff has also been left with scarring to her lower back and abdomen. While the scars are not particularly ugly, they are nevertheless clearly visible.
140. As a result of her injuries, the plaintiff has been rendered disabled in all aspects of her life. She has been unfit to return to her pre-accident work as a receptionist/secretary. Given the current level of her symptoms, and based on the medical evidence before the court, I find that on the balance of probabilities the plaintiff will not be fit to return to work again. The plaintiff is also disabled in the social and recreational aspects of her life. She is unable to participate in sports with her young daughters. In particular, she is unable to ride horses. This has had the effect that she is unable to participate fully in the horse riding activities which her young daughters are just taking up. She finds this very distressing, as she had looked forward to going on rides with them.
141. She is unable to participate in the sporting activities of her daughters, such as Gaelic football and dancing. She is limited to observing these activities from the sidelines. The plaintiff is also disabled in the social aspects of her life. She states that her girlfriends do not invite her out, as they had done previously.
142. In terms of the future, it would appear that the injuries to the plaintiff’s back and to her bladder are permanent in nature.
143. The court has had regard to the fact that the plaintiff suffered an injury to her back in 2008, when she fell in the yard while chasing cattle. She attended with her GP, who referred her to Mr. Mahalingam, consultant orthopaedic surgeon. She had an MRI scan which revealed degenerative changes in her spine. Mr. Mahalingam advised that the injury should be treated conservatively.
144. The uncontested evidence of the plaintiff was that she had had lower back pain for a number of months after this accident, but that thereafter the pain resolved completely. She stated that she had returned to full activity around the farm and in her sporting and recreational pursuits. She stated that she had been symptom free for four years prior to her accident in Tesco. The plaintiff’s medical records were consistent with these assertions.
145. The medical experts agreed that the degenerative changes seen on the 2008 scan, would be common findings among the general population of a similar age to the plaintiff. A large proportion of those people would be asymptomatic despite the presence of such changes. The doctors accepted that where the plaintiff had got back to full activity and had been symptom free for four years, that that had been a good clinical outcome from her injury in 2008. The existence of that injury may have made the plaintiff’s back more vulnerable to injury in the second accident.
146. I accept the evidence of the plaintiff that, while she had suffered an injury to her back in 2008, which caused pain in her back for a number of months, she had gone on to make a full recovery therefrom. Accordingly, that injury is not relevant to the assessment of general damages in this case.
147. During the course of the hearing, the defendant produced a video which had been taken by a private investigator. It showed the plaintiff driving to a health centre and there alighting from her car and walking up a ramp to the front door of the centre. A short while later, she emerged from the building and walked back to her car. She got into the car and drove away. It was clear from viewing the video that the plaintiff walked slowly and with a pronounced limp. When she went to get back into her car, she did so in a careful but awkward manner. It was clear to the court that on this occasion, when the plaintiff did not know that she was being observed, she did not do anything that was inconsistent with her testimony to the court. A subsequent portion of the video showed her attending a dancing competition, in which her daughter was taking part. The plaintiff remained seated and had a walking stick with her. She was able to tap her feet on the ground with the rhythm of the music. Again, it did not disclose her engaging in any activity that was inconsistent with her testimony.
148. The defendant also put in evidence various extracts from the plaintiff’s Facebook page. The plaintiff did not deny that she had taken part in the activities shown thereon. She stated that she had gone with her children to a “One Direction” concert in Croke Park, so as to give her children some happy memories from childhood. I accept the plaintiff’s evidence that she went to that concert with some difficulty and that she paid for it in terms of pain in the following days.
149. Taking all of these factors into account, and having regard to the fact that the plaintiff continues to suffer pain in her lower back and leg and has continuing bladder problems, all of which will be permanent and which have rendered her grossly disabled in the ordinary aspects of her life, I award the plaintiff the sum of €125,000 for general damages to date. In addition, as the plaintiff will have significant symptoms for the rest of her life and will require ongoing treatment, and as her disability will be permanent, I award the plaintiff the sum of €135,000 as general damages for pain and suffering and disability into the future.
Special Damages - Past
150. The parties have agreed the amounts claimed in respect of VHI (Hospital Expenses), GP fees to date, loss of wages to date, and consultation fees to date in the total sum of €71,182.
151. There are a number of items of past expenses which have not been agreed. The first of these is the claim for farm expenses. This was first put forward in the sum of €55,000 (actually pleaded at €55,680), but was later reduced in the course of the hearing to €20,000. No accounts were furnished to show how these expenses may have arisen. Mr. Walsh did give evidence that over the years he had employed a farm labourer to do baling. This arose because the plaintiff’s husband was obliged to be off the farm to take his wife to various medical appointments. I am not satisfied that the plaintiff has established that there were, in fact, extra expenses incurred by her absence from the farm, or due to the absence of her husband from the farm for any given period. Therefore, I do not propose to allow any sum for additional farm expenses.
152. The next item was nursing costs/past cost of care. The plaintiff’s nursing expert calculated this at €29,000, which allowed for eight hours of home help per week. The defendant’s nursing expert allowed only seven hours per week and their figure came to €22,023. The defendant’s expert, Ms. O’Carroll, stated that she had arrived at this figure by looking at the support given by family members to the plaintiff since the time of the accident, rather than money actually expended. She stated that the method of calculation was to look at the number of hours provided and value those hours at the HSE rate of €13.96 per hour. She thought that the figure allowed was a fair allowance in all the circumstances.
153. The difference between the experts is that the plaintiff’s expert says that it is appropriate to make allowance for eight hours per week, whereas the defendant has only allowed seven hours per week. I think that having regard to the level of disability exhibited by the plaintiff in the period since the accident to date, it is reasonable to allow the claim as put forward by Ms. Smith on behalf of the plaintiff. Accordingly, I will allow the sum of €29,000 in respect of past nursing costs and care costs.
154. There is also a claim for travel and subsistence expenses in the sum of €10,805. The details of these expenses are set out extensively in Appendix A of the plaintiff’s schedule of special damages. Essentially, the expenses were incurred by the plaintiff in travelling to and from a large number of medical examinations, which were in different parts of the country. I am satisfied that the figure claimed is a reasonable amount to allow under this heading.
155. Adding the above figures together, gives a sum of €110,987, in respect of past special damages.
Special Damages - Future
156. Before turning to the items claimed in respect of future special damages, it is necessary to deal with one issue which was raised by the defendant at the trial of the action. The defendant argued that when considering the appropriate multiplier to be used in respect of future special damages, this should be based on an assumed real rate of return of 3%. The defendant argued that the decision of the Court of Appeal in Russell v. Health Service Executive [2015] IECA 236, should not be applied by the court, because that case dealt with a plaintiff who had suffered catastrophic injuries at birth. It did not apply to the circumstances which arise in this case, where the plaintiff was not catastrophically injured and where the damages awarded would not be her sole means of income and support in the future.
157. In particular, the defendant relied on the judgment of Irvine J. and in particular on the dicta set out in para. 89 thereof:-
“For the purposes of clarity it is perhaps of importance for this court to state that we do not accept the albeit obiter view expressed by the High Court judge in the present case insofar as he indicated that a plaintiff with a claim for future pecuniary loss confined to loss of earnings might possibly be treated as less risk averse than a plaintiff who has a claim for the cost of future care. There appear to be a number of arguments against such a proposition. It would seem to admit of the adoption of a potentially higher real rate of return in the loss of earnings claim on the assumption that the plaintiff can necessarily absorb a greater risk when investing their award to secure their future income. While of course there may be the rare case where a particular plaintiff may not need their earnings to survive on a day-to-day basis and might thus be in a position to take risks in terms of the investment of their award, most plaintiffs do not fall into that category. A plaintiff who will never be in a position to work again and is dependant upon the investment of his lump sum for their own support and that of his family may be entitled be treated similarly in terms of the investment risk he should have to absorb, to the plaintiff who needs to cover the cost of their future nursing care on an annual basis. As this did not arise on the facts herein we consider that a decision on this issue should be left over to an appeal where it does so arise.”
158. Based on these dicta, the defendant argued that the Court of Appeal had left open the issue as to whether a plaintiff, who did not need the damages for their sole means of support, might adopt a more risky form of investment which would yield a real rate of return greater than that allowed for in the Court of Appeal judgment. The defendant further argued that where the Court of Appeal had specifically left this question open, the only decision therefore binding on the court was the decision of Finnegan P. in Boyne v. Dublin Bus [2003] 4 I.R. 47, where a real rate of return of 3% was set down.
159. In response to this argument, counsel for the plaintiff argued that the most recent binding decision was that of the Court of Appeal in Russell, which was delivered on 5th November, 2015. It was submitted that that case unequivocally endorsed the judgment of Cross J. in the High Court, who, having heard extensive evidence and argument in relation to what rate of return should be allowed, determined that a real rate of return of 1% should be allowed for loss of earnings or future care costs and 1.5% for all other costs. It was submitted that the judgment of the Court of Appeal represented the law, as it stands at present, and was binding on this Court.
160. In this case, there was no evidence in relation to what should be the appropriate real rate of return. Nor was there any evidence, to the effect, that the plaintiff, not having to rely on the award as her sole means of support, should be taken as being prepared to take a more risky approach to investment of her damages, which could yield a return of 3%. In these circumstances, it seems to me that the court must decide whether it should follow the judgment of Finnegan P. in Boyne v. Dublin Bus, or the judgment of the Court of Appeal in Russell v. HSE. I am satisfied that the decision in Russell v. HSE, which was handed down by the Court of Appeal on 5th November, 2015, represents the current law in this jurisdiction. I do not accept that the fact that in that case they were dealing with a catastrophically injured boy, who would have to rely on the award of damages for his future support, necessarily means that the decision of the court cannot be used in a case such as the present. It seems to me that the dicta in Russell v. HSE are not restricted solely to the facts of that case, but are wide enough to encompass the circumstances which arise in this case. Therefore, I propose to follow the decision in Russell v. HSE when assessing the real rate of return in this case.
161. I turn now to the question of the plaintiff’s loss of earnings into the future. In her evidence, the plaintiff stated that it was her dream to return to work in the supply chain management or purchasing areas. At the time of the accident, she had returned to work on a part-time basis as a receptionist/secretary with a GP. She worked two days one week and three days the next. The surgery where she worked was reasonably close to the farm, being some 20 to 30 minutes away in Kilkee.
162. The plaintiff and her husband have given evidence that it was their intention that the plaintiff would return to work in the area of supply chain management when the girls were settled in school. Where a plaintiff puts forward the case that but for the accident, they would have changed jobs and secured full time employment at a much better salary, the court has to examine such a contention closely to see if there is any reality to the scenario as put forward by the plaintiff. The onus rests on the plaintiff to persuade the court that on the balance of probabilities, the plaintiff would have sought and obtained the type of employment contended for at the trial of the action.
163. I am not convinced that when the plaintiff and her husband got down to the practical logistics of the plaintiff returning to work in supply chain management, that they would had proceeded with the plan. In order for the plaintiff to have taken up a job in this area, she would have to have been prepared to travel to Shannon to secure such employment. This would involve a car journey of one hour and twenty minutes, giving a daily commute of two hours and forty minutes. The plaintiff would have to leave home at approximately 07:40hrs and would not have returned home again until 18:20hrs each day. This presumes that she would only work an eight hour day from 09:00hrs to 17:00hrs. Often when people are working at an executive or management level, they have to be prepared to work long or unsociable hours, depending on the time zones in which their business contacts are working. Thus, the plaintiff would have to be prepared to work long hours on occasion and perhaps at hours outside the normal working day.
164. If the plaintiff were to work the hours indicated, it would have been necessary for the plaintiff and her husband to put in place some system for dropping the children to school and collecting them after school. This may have been quite complex, if the children were in different primary and secondary schools and were finishing school at different times, or were engaged in after-school activities.
165. In addition, it would be unrealistic to expect the plaintiff to set about preparing and cooking the evening meal on her return at 18:20hrs each evening. It would also be unrealistic to expect the plaintiff to do extensive cleaning around the home, if she was working in Shannon. In these circumstances, they would have to have engaged someone to do child-minding, general housework and prepare some of the evening meals.
166. If the plaintiff was away working during the week, her degree of participation in the work of the farm, would have dropped substantially. From mid October to mid March, she would not have been able to do much on the farm during the week, as it would have been dark when she left in the morning and would be dark when she got home in the evening. She would have to do the paperwork at night and would have been restricted to working with the horses at weekends during these months.
167. Prior to her accident, the plaintiff had been very active in working around the farm. She used to clean out the stables, lunge the horses, exercise them and get them bedded down for the night. She also drove them to and from sales and shows as required. If she had returned to working full time in the supply chain management area, it may have been necessary for the plaintiff and her husband to hire a labourer to do the work which had been previously done by the plaintiff.
168. Thus, against the plaintiff’s net earnings, would have be set the cost of employing a person to collect and mind the children after school and prepare evening meals and a labourer to do general farm work. If the plaintiff obtained a job paying circa €60,000 per annum, the net return when these expenses were set against her net salary, might have meant that she would not have brought home that much additional income to the family finances.
169. An additional point which was raised by Ms. Fehily was that in her experience, people who are engaged with horses tended to be passionate about them. Certainly, from her evidence, the court got the clear impression that the plaintiff was passionate about horses. Thus, the plaintiff would have had to have made a big personal sacrifice to take herself away from the farm to pursue a career in supply chain management.
170. The second aspect which has to be examined is whether, assuming that the plaintiff and her husband had decided that she should return to work in supply chain management, she would have been successful in obtaining a job in this area. Given that she would be 50 years of age in 2018 and the fact that she would have been out of this type of work since in or about 2004, Ms. Fehily was of the view that in these circumstances, where the plaintiff would have been competing against younger graduates, who had up to date relevant degrees in the area, it would be unlikely that she would have secured such a job.
171. Ms. Fehily had obtained a number of advertisements for jobs in the area, specifically working with pharmaceutical firms, but all required experience working in that industry.
172. Ms. Doherty’s evidence, on the other hand, was that this was a booming sector and that with the plaintiff’s vast experience, she would have had no difficulty in securing employment in the area. I prefer the evidence of Ms. Doherty that the plaintiff’s experience and ability in the area of supply chain management, would have more than compensated for her age and absence from this sector of the employment market.
173. Taking all of these factors into account, I am not convinced that when the negative aspects of the plaintiff returning to work, were weighed against the net gain to the family’s finances, the plaintiff would have opted to return to work in the area of supply chain management or purchasing. However, I am satisfied that the plaintiff and her husband are anxious to do the best that they can for their daughters. In particular, I accept Mr. Walsh’s evidence that it is their intention to provide their daughters with third level education. In these circumstances, I am satisfied that the plaintiff would probably have sought full time employment as a receptionist/secretary, which would have enabled her to work in Kilrush or Kilkee, which would have a commute time of approximately 20 minutes. This would mean that they could have got by without employing a child minder/cook and the plaintiff would have been able to remain quite hands-on in relation to the farm work. This would have reduced, or eliminated, the amount of extra labour that would have to be employed on the farm.
174. Therefore, I find that on the balance of probabilities, the plaintiff would have sought and obtained a full time clerical/secretarial position in 2018. This would have provided her with an income of in or about €26,000 per annum which would equate to €500 gross per week, giving a net weekly wage of €430. As this loss would only occur in two years time, the sum of €200 per week has to be deducted from the net weekly wage, giving a figure of €230 per week, which, multiplied by one hundred, gives a figure of €23,000, which must be deducted from the capital value given by Ms. Carter. This gives a revised capital value for future loss of earnings of €373,030.
175. As the plaintiff would only be returning to work for approximately eighteen years in 2018, and having regard to the fact that she would probably have found it relatively easy to secure alternative employment if she were let go from her job as a receptionist/secretary, I do not think that it is necessary to make any deduction along the lines set out in the decision of Ready v. Bates. Accordingly, I will allow the sum of €373,030 for future loss of earnings.
176. In addition, I will allow the sum of €20,000 being the loss of her part-time earnings at €200 per week for the next two years.
177. The next heading to consider is the amount claimed in respect of future urology costs. In respect of future urological care, Mr. Rogers has stated that the plaintiff will incur the cost of catheters at €300 per month, together with two annual reviews, which will include ultrasound examination of the kidneys and bladder and a consultation with the consultant. He estimates that this will amount to €6,000 - €8,000 per annum. He accepted that catheters are available free of charge to people who possess a medical card.
178. The defendant’s expert, Mr. O’Sullivan, was of the view that the plaintiff would need an ultrasound examination of the kidneys costing €150 and an ultrasound of the bladder, also costing €150 and a consultation with a consultant at €150, giving a total of cost of €450. There would be two such examinations per year giving a total annual cost of €900.
179. In view of the fact that the plaintiff will be compensated for her future loss of earnings, it seems reasonable to assume that as a medical card is means tested, she will not be entitled to a card after the case has been heard. I accept the evidence of Ms. Barnes, that the plaintiff will lose her medical card when she obtains damages. This means that she will have to pay €3,600 per annum for catheters. In addition, she will face the charges as set out by Dr. O’Sullivan in the sum of €900 per annum. This gives a total bill of €4,500 per annum. Allowing a real rate of return of 1.5%, the capital figure would be €4,500 x 29.5, giving a total of €132,750. I will allow this sum for future urological costs.
180. The next item is the cost of future home help. The plaintiff’s nursing expert, Ms. Smith, has given the opinion that the plaintiff will need eight hours help per week, being one visit of four hours duration to do the heavy cleaning such as hoovering, changing bed clothes, and putting out the washing. There will also be four visits of one hour duration, to do general tidying. She has based her calculation on the HSE rate of €13.96 per hour. When sundry additional charges are added, this gives an annual cost of €6,539. The capitalised value of this head of claim at 1% rate of return is €195,222.
181. The defendant’s expert, Ms. O’Carroll has a different view as to the current need for home care. She has allowed for seven hours per week for the next eight years; this is until the youngest daughter reaches the age of sixteen years. At that time, the two girls will be in a position to help keep the house clean. Ms. O’Carroll has allowed for four hours home help thereafter. In the defendant’s calculations, this amounts to a capital value of €95,937.
182. The plaintiff’s expert thought that the reduction in the number of hours for home help, was inappropriate, having regard to the fact that in her figure, she had not put in any amount for the cost of looking after the children when young. In such circumstances, she felt that it was not appropriate to reduce the sum allowed on the basis that the children had grown older.
183. I think that there is some merit to the defendant’s argument. While the daughters are young, there is a need for home help in the order of 7/8 hours per week. However, as the girls get older and reach their latter teenage years, they will be in a position to give assistance in cleaning and tidying the house.
184. While ordinarily teenagers may not be tidy or helpful around the house, in this case there has been evidence that, even now, the plaintiff’s daughters are attentive to their mother’s needs. The plaintiff has referred on her FaceBook page to her children being her “minders”. In these circumstances, it is reasonable to assume that the girls will help out at home and that the need for home help will diminish when the children get older.
185. There is also the real possibility that the children will leave the home to pursue third level education. Thereafter, they will probably leave the home at some stage, either to take up employment elsewhere, or to get married. When the time comes that the plaintiff and her husband are living in the house by themselves, I do not think that they will need eight hours cleaning per week. I think the defendant’s allowance of four hours is reasonable. Unfortunately, I have not been given a multiplier for the defendant’s assessment of home help at a 1% rate of return. As already noted, the defendant’s figure at 3% is €95,937. In the circumstances, I propose to allow the sum of €110,000 under this heading.
186. Turning now to the assessment of other expenses, Dr. Paul Murphy has advised that the plaintiff will require replacement of her spinal cord stimulator every eight - ten years at a cost of €27,831 per surgery. In her calculations, the plaintiff’s actuary, Ms. Carter, has assumed that the next replacement will be in nine years time. In addition, the plaintiff will require two rhizotomy procedures per annum at a cost of €1,200 per procedure being €2,400 per annum. The plaintiff also needs to visit her GP once a month and her physiotherapist once a month at a cost of €45 per visit and will have to undergo blood tests once a year at a cost of €60. In addition, she will require six sessions of counselling a year at a cost of €60 per session, being €360 per annum.
187. The capitalised value of these costs, assuming that the plaintiff will be liable to tax on investment income at 29.5% comes out at €192,882. The items listed appear reasonable, so I will allow this head of claim in full.
188. In Ms. Carter’s second report, there was an allowance of €4,408 in respect of the cost of post operative care which would arise on replacement of the spinal cord stimulator. This will arise every nine years on the replacement of the spinal cord stimulator. The capital value of this claim amounted to €12,431. However, this head of claim was deducted from Ms. Carter’s final report, so I presume that it was not being pursued in the action.
189. Finally, there is the issue of the aids and appliances which the plaintiff will require in the future. There is a large disagreement between the parties as to the level of aids and appliances required by the plaintiff. On the plaintiff’s figures, these amount to a capital value of €232,640, whereas the defendant proposes allowing a figure of €80,527.
190. The parties have agreed that the following items will be required by the plaintiff: a set of portable telescopic ramps, leisure club membership, office chair, height adjustable desk, weekly shop, painting and decorating allowance, general garden upkeep, window cleaning, AA membership, car wash or valet, bidet supply and installation, podiatry/chiropody costs.
191. I turn now to deal with those aids and appliances which have not been agreed between the parties. Some items had been supplied to the plaintiff because she has a medical card. However, Ms. Barnes has stated that the plaintiff will probably lose her medical card when she receives her damages, as the medical card is means tested. This means that she will have to pay for items which might otherwise be supplied free under the medical card scheme. I accept this as the likely scenario in respect of payment for these items in the future.
192. The first item which was recommended by the plaintiff’s expert was a wall mounted shower seat. This is a seat which is permanently affixed to the wall and would simply be pulled down while the plaintiff was taking a shower. Given that the plaintiff is unsteady on her feet, some form of chair is necessary. The defendant’s expert has stated that at present, the plaintiff is using a free standing chair in the shower. In such circumstances, she did not see that there was any necessity to purchase a wall mounted seat. The advantage of the wall mounted seat is that it means that a chair does not have to be brought in and out of the shower for each user. I am satisfied that a wall mounted shower seat is a reasonable expenditure in the circumstances and I will allow this item. In addition, it has been suggested that grab rails should be supplied and affixed to the shower so that the plaintiff can get up off the shower seat in safety. While the plaintiff is able to get up from a chair without the use of such rails at present, it seems to me that these items are necessary to ensure the plaintiff’s safety in the shower. I will allow the costs of grab rails.
193. The next item on the list was a Molly bather, including delivery, service and battery replacement. The defendant objects to this item on the basis that the plaintiff already has a bath lift which she obtained from the HSE and this was operating satisfactorily. The plaintiff disagrees with this on the basis that the current bath seat only goes down as far as approximately two inches from the bottom of the bath and therefore she cannot soak as much as she would do with the Molly bather. I think that the bath lift which has been supplied by the HSE is sufficient for the plaintiff’s purposes. I will not allow the cost of the Molly bather; however, I will allow the sums claimed in respect of service and battery replacement, as these would apply to the bath lift currently in situ.
194. The next item on the plaintiff’s list of aids and appliances concerns fragrance free wipes and pads. The defendant maintains that as the plaintiff has been allowed the cost of a bidet, these items are not necessary. The plaintiff’s expert has stated that the plaintiff wears a pad when going out. She uses one pack of these per week. While it is accepted that the cost of a bidet is reasonable, they make the case that the plaintiff will still need pads and wipes when going outside the home. I think that this is reasonable and I will allow these items.
195. The next item is the annual sum which the plaintiff will have to pay under the Drugs Payment Scheme. This was not addressed by the defendant’s expert. I accept that it is likely that the plaintiff will lose her medical card when she obtains damages as a result of this case, so she will become liable for the monthly charge of €144. I will allow this sum.
196. The plaintiff has claimed for the cost of a powered reclining chair, on the basis that it is necessary to ease the plaintiff’s pain and to allow her to get into a comfortable position. The defendant’s expert maintained that this item was not necessary, as on the day of the assessment, the plaintiff was able to transfer with ease from the existing chairs. They also made the point that if the plaintiff wished to recline fully, she could lie across the couch. I prefer the evidence of the plaintiff’s expert on this topic. It seems to me that a reclining chair is necessary to enable the plaintiff to recline almost fully in an effort to ease her pain when sitting. I will allow this item.
197. The next item was an orthopaedic mattress. The plaintiff stated that she needed a good mattress to ease her back pain, as she alleged that her old mattress had a dip in it. The defendant’s expert stated that the plaintiff did not report any difficulty with her existing mattress and on this basis, it was deemed unnecessary. Given that the plaintiff will spend quite an amount of time in bed, as she may go to her bed for rests during the day, I think it is reasonable to allow this item.
198. The next item was a walking stick and ferrule replacement. It is evident from the plaintiff’s evidence and from the video taken by the defendant’s private investigator, that the plaintiff needs and uses a walking stick when going outside the house. I will allow this item.
199. The next item was the cost of an electric scooter. At present, the plaintiff is unable to walk long distances. The plaintiff’s expert recommended that the plaintiff should have a scooter for use at horse shows/events and when shopping. The defendant’s expert, Ms. Fehily, was of opinion that a scooter would be helpful for the plaintiff, but she noted that the plaintiff did not want one. The plaintiff wanted to preserve without it. She stated that if the plaintiff retains her medical card, she could obtain a scooter through the community OT. Having regard to the plaintiff’s difficulty walking and standing, particularly in crowded areas, I think it is wise for the plaintiff to have a scooter for use when attending horse shows and events and when attending dancing competitions with her daughter. As she is likely to lose her medical card after this case, she should be entitled to the costs of this item. Both experts agreed that the plaintiff needed portable telescopic ramps to be used with the scooter, to enable her to ascend and descend small variations in height in the floor surface.
200. Both experts were agreed that the plaintiff should be allowed the cost of a pick up stick, so I will allow this item.
201. The plaintiff had been supplied with a trolley for use in the kitchen by the community OT. Both experts agreed that it was something that she needed, although Ms. Fehily stated that she did not use it on the day of her assessment. As the trolley has already been supplied by the HSE, I propose to subtract the sum of €240 from the sum claimed under this heading.
202. The plaintiff’s expert recommended that the plaintiff should take up pilates. The defendant’s expert was of the view that as the plaintiff was unable to circumduct and weight bear on the left leg, which are necessary components of pilates, she should not do this form of exercise. I think that the defendant’s objection is well founded, particularly in view of the fact that there has been an allowance for pool membership to enable the plaintiff to do hydrotherapy. Accordingly, I will disallow this item.
203. The plaintiff has claimed for the cost of a hybrid bicycle. It was put forward on the basis that this was a necessary form of exercise. It was not addressed by the defendant’s expert, who felt that it was more properly a matter for a physiotherapist to comment upon. Cycling is a form of exercise that can be undertaken by patients who have bad backs. It enables the plaintiff to take some form of exercise and also enables her to accompany her daughters, when they go out on the horses down to the beach, which is near their farm. I will allow this item.
204. The plaintiff has claimed the cost of obtaining a separate level surface hob and a built in oven and drawer dishwasher. The plaintiff’s oven is currently at a low level. She can place things in the oven due to the fact that there is a tray attached to the door, which comes out as the door is opened. However, the plaintiff states that she is not able to remove heavy dishes from the oven. She states that her husband must do this for her. The defendant’s expert thought that on the day of her assessment, the plaintiff did place items in the oven and was also able to remove them when cooked. The plaintiff denied this and stated that it was her husband who lifted pots and dishes from the oven. I prefer the plaintiff’s evidence in this regard. I think that it is reasonable to alter the height of the hob and oven and to install a drawer dishwasher.
205. The plaintiff also claimed for the cost of a perching stool for use around the kitchen. The defendant’s experts stated that this was unnecessary as the plaintiff had already been supplied with one by the HSE. Furthermore, the plaintiff did not use it on the day of the defendant’s assessment. I am satisfied that such a stool was necessary and that is why it was supplied by the HSE. I will allow this item but I will deduct the initial cost of the stool from the sum claimed, as this has already been supplied to the plaintiff.
206. The next item was the cost of a standing freezer. The plaintiff’s expert noted that the plaintiff had a chest freezer at present. To obtain items from the freezer, the plaintiff is obliged to lean in and lift out baskets of frozen goods, to get at items on the bottom of the freezer. In these circumstances, Ms. Barnes recommended obtaining a standing freezer with drawers. The defendant’s expert, Ms. McElwain, was of the view that the plaintiff could access and use the existing chest freezer without difficulty. In view of the plaintiff’s continuing physical disability, I can understand that it is difficult for her to use the chest freezer. A standing freezer would be much easier and safer for her to use. I will allow this item.
207. The next item was a claim for the cost of extra heating. Ms. Barnes noted that as the plaintiff did not go out and about as much as before and as she is limited in the physical activities that she can undertake, it was reasonable to make provision for the extra fuel necessary to keep the house warm throughout the year. Ms. McElwain stated that the plaintiff did not report to her that she was susceptible to feeling the cold. On this account, she thought that the cost claimed was unnecessary. Having regard to the fact that the plaintiff now spends a good deal of her time in the house and as she is restricted in the physical activity that she can undertake, it is reasonable to allow for the cost of extra heating within the house.
208. There was a claim for reimbursement in respect of the cost of a footstool. The plaintiff had purchased a footstool to enable her to sit comfortably in the living room. As I have allowed for the cost of a reclining chair, I will disallow this item.
209. Included in the builder’s estimate, is the cost of putting in grab rails in the shower and toilet and putting in a raised toilet seat. The defendant’s expert stated that this was unnecessary, as the plaintiff was able to get on and off the existing toilet and did not need the use of grab rails to enable her to do so. I think that these items are necessary in order to allow the plaintiff to use these areas in safety. The builder’s estimate in the sum of €12,000, also includes the cost of doing remedial works to the kitchen. I will allow the builder’s estimate in full.
210. There is also a claim for the cost of heat pads. I am not satisfied that these are required by the plaintiff, so I will not allow this item.
211. A claim has also been put in for the cost of having the plaintiff’s car washed on a regular basis. Ms. Barnes was of the opinion that the plaintiff was not physically fit enough to wash her car, whereas Ms. McElwain stated that based on her assessment, the plaintiff would be able to perform this task. Given that the plaintiff is not able to bend or stoop, I do not think that she would be able to wash the lower parts of her car. Accordingly, it is reasonable to allow a sum for a regular car wash. I will allow this item.
212. The plaintiff has also claimed the cost of a regular review by an occupational therapist. Ms. Barnes stated that the plaintiff needs occupational therapy and given the crisis in the HSE, she would not be able to get the community OT out to her. Furthermore, if she loses her medical card, as she is likely to do, she would not be entitled to such therapy publicly. This treatment was recommended at the present time so as to protect her into the future. Ms. McElwain disagreed with this assessment. She noted that the plaintiff had engaged with the community OT department and could receive OT domiciliary support and advice from this service. The amount claimed in this regard is quite small, €520. It seems to me that this is a reasonable sum to allow for the plaintiff’s future care.
213. Based on the items that I have allowed for above, together with the agreed items, it would appear that the current figure to allow under the heading aids and appliances is €227,846. To this, must be added the sum of €12,000 being the global cost furnished by a builder for carrying out all the building works necessitated by the installation of the larger items, such as installation of the shower seat, grab rails and raised toilet and the changes to the layout of the kitchen. This gives an overall total under the heading of aids and appliances of €239,846.
214. The heads of damages awarded in this case can be summarised as follows:
General damages (to date) €125,000
General damages (future) €135,000
Past special damages €110,987
Loss of earnings for two years €20,000
Loss of earnings thereafter €373,030
Urology costs (future) €132,750
Home help €110,000
Other expenses €192,882
Aids and appliances €239,846
Total €1,439,495
