JUDGMENT of Mr. Justice Barr delivered on the 27th day of January, 2017
1. This action arises out of an accident which occurred on 15th May, 2013, on Chancery Lane, Dublin. The plaintiff was a front seat passenger, wearing a seatbelt in a stationary vehicle, when the defendants’ vehicle collided with the back of the vehicle in which the plaintiff was a passenger. This collision caused extensive damage to the vehicle in which the plaintiff was travelling and resulted in the vehicle being written off. It is alleged that as a result of this impact, the plaintiff suffered soft tissue injuries to his neck, upper back and lower back and an injury to the middle finger on his right hand.
2. Liability has been conceded, so the action came before the court as one for an assessment of damages. Special damages in the case were agreed in the sum of €6,881.
The Plaintiff’s Evidence
3. The plaintiff is a 38 year old project manager, who travels extensively for work between Ireland and the U.K. He stated that prior to the accident he had been a healthy individual who went to the gym regularly and participated in the martial arts sport, Aikido. The plaintiff stated that he had not suffered from any back pain prior to the accident.
4. Seven years before this incident, the plaintiff was involved in a road traffic accident, where he suffered a whiplash injury to his neck. This injury settled reasonably quickly and a full recovery was made. He received €15,000, as compensation for his injuries sustained in that accident.
5. In a separate incident, some years previously, the plaintiff fell down a flight of stairs and fractured the middle finger on his right hand. In treating this injury, metal pins were inserted into the finger and these remain in place. In evidence, the plaintiff stated that hitting this finger in the course of daily life, would cause significantly more pain than if he were to hit any of his other fingers.
6. The plaintiff stated that on the day after the accident, 16th May, 2013, he attended a “walk-in” G.P. service in Rathmines. There, he saw Dr. Brendan Heaney. His main complaints at that time, were of pain in his neck and pain in the middle finger on his right hand. Dr. Heaney prescribed painkillers and anti-inflammatory medication to aid the stiffness and pain that he was suffering in his neck.
7. The plaintiff stated that he began to suffer low back pain, with sciatica in his left leg, a week after the accident. This got progressively worse in the weeks that followed. He stated that the anti-inflammatory medication and painkillers which had been prescribed by Dr. Heaney, alleviated his symptoms somewhat, but he remained in significant pain. He described the sciatic pain as being nine out of ten in severity.
8. In September 2013, the plaintiff suffered a seizure in his back resulting in the muscles going into spasm. This left him unable to get up from the floor. Following this, he attended with Dr. Tom Kennedy, a G.P. in Gorey, where the plaintiff lived. He was prescribed additional anti-inflammatory medication as his back was still in spasm. The full content of Dr. Kennedy’s observations will be discussed later in the judgment.
9. On 15th November, 2013, due to ongoing severe pain in his back and left leg, the plaintiff attended with his uncle, Mr. James Doyle, who worked as an osteopath. The plaintiff stated that this treatment involved stretching the muscles in his back, together with exercises to be performed at home. This treatment relieved the acute pain in the short term, but his back pain persisted. This treatment continued well into 2014. The plaintiff estimated that he had approximately fifteen sessions of treatment in total.
10. When the plaintiff’s neck and back symptoms did not settle, he was referred for M.R.I. scans of his cervical and lumbar spine. These were carried out on 28th October, 2014. The scan of the cervical spine revealed a slightly reduced signal in the cervical discs, but no significant loss of height. There was some osteophyte formation anteriorly at C6-7. There was minor osteophytic encroachment on the left exit foramen at C4-5. The right side was clear. There was a tiny focal right paracentral disc protrusion at C5-6, with an associated annular tear. The exit foramina were patent. There was a left posterolateral annular bulging at C6-7, with some encroachment on the left exit foramen. The right side was clear. The cervical spinal cord appeared normal.
11. The M.R.I. scan taken of the lumbar spine revealed reduced signal and moderate loss of height in the L3-4 disc, with slight annular bulging posteriorly. There was reduced signal and moderate loss of height in L4-5, with surrounding degenerative change. There was a broad based annular bulging posteriorly with mild left paracentral extrusion down behind L5. This disc impinged on the thecal sac and both descending nerve roots, slightly more prominently on the left side. There was a slightly reduced signal without loss of height in the L5-S1 disc. There was mild annular bulging posteriorly with an associated annular tear. The lumbar spinal canal and contents were otherwise unremarkable. There was minor degenerative change in the facet joints at L4-5 and L5-S1.
12. On 4th November, 2014, the plaintiff came under the care of Mr. Bruce Bough, Consultant Orthopaedic Surgeon. He advised conservative treatment and prescribed Deltacortoril. Mr Bough’s findings are set out in more detail later in the judgment. When the plaintiff’s symptoms of back pain and referred pain into the left leg, did not settle, Mr. Bough referred the plaintiff on to Mr. Stephen Young, Consultant Neurosurgeon.
13. The plaintiff first saw Mr. Young on 31st August, 2015. Initially, Mr. Young adopted a conservative approach and prescribed further medication. He told the plaintiff to return to him if his symptoms did not settle, in which circumstances consideration would have to be given to operating on the lower back. The plaintiff stated that he was trying to avoid having surgery, if at all possible.
14. The plaintiff stated that his back pain and sciatica became progressively worse and affected his sleeping, getting dressed and exercise routine. Accordingly, he returned to see Mr. Young in December 2015. Given the severe nature of his symptoms at that time, a decision was made to undergo surgery. On 27th January, 2016, the plaintiff had a microdiscecetomy at the L4-5 level. This was carried out under general anaesthetic and the plaintiff was detained in hospital for a number of days. The plaintiff was given exercises to do following discharge and he began attending with a physiotherapist for treatment, which treatment is continuing. The plaintiff acknowledged that this operation had reduced the sciatic pain, but did not completely eradicate it. He stated that: “the sciatica is not as sharp as it used to be…but the weakness is still there”. The plaintiff was disappointed that the operation did not totally alleviate the pain in his leg, however, he acknowledged that it had reduced the sciatic pain. He continues to experience back pain on a daily basis. In evidence, the plaintiff stated that the injury to his back was still affecting all areas of his life, including relationships, recreational activities, what shoes he wears, getting in and out of cars and travelling long distances. The plaintiff stated that his pain affected how he dresses, as he could only wear trainers or flip flops and, as a result, he felt that he was often inappropriately dressed when attending business meetings. He stated that he was disabled in the ordinary aspects of his life. He was not able to change the wheel on his car, which he felt he should be able to do at his age. He stated that this level of disability made him feel like an elderly person. He stated that he continues to experience pain every day in his neck and back.
The Medical Evidence
15. The plaintiff’s G.P., Dr. Heaney, stated that the plaintiff’s main concern, when he attended with him on 16th May, 2013, was the pain in the middle finger on his right hand. The plaintiff stated that it had caused him pain since the accident. He also complained of stiffness at the back of his neck. On examination, Dr. Heaney found the plaintiff was suffering stiffness in his neck. Movements of his finger were limited and it was a little tender.
16. In September 2013, the plaintiff attended with Dr. Kennedy, following an episode when his back had gone into spasm. In his medical report, which was furnished to the court, Dr. Kennedy stated that at the consultation on 25th September, 2013, the plaintiff informed him that initially he felt fine after the accident, apart from pain in his right hand, which had struck the interior of the vehicle during the impact. On the day of the accident, the plaintiff did not suffer any back pain and was able to carry on that day. He told Dr. Kennedy that he had developed stiffness in his cervical spine and shoulders, the morning after the accident and went on to develop pain in his lower back and leg, particularly when coughing, sneezing or walking in flat shoes. Due to his neck and back pain, the plaintiff was unable to attend the gym or practice Aikido. He had difficulty lifting objects weighing more than 20kg, as this caused pain. Dr. Kennedy noted that the injury had interfered with the plaintiff’s sex life, as certain positions were not possible due to back pain. The plaintiff reported a clicking sensation in his neck and back. He stated that he had trouble sleeping and was frequently awoken two to three times during the night with pain in his neck and episodes of sweating. The plaintiff also informed the doctor that swimming had improved the pain in his back.
17. As already noted, the plaintiff attended with his uncle, who worked at the Dublin Osteopathic Clinic, where he received a number of treatments from November 2013 down to May 2014. He had fifteen sessions of treatment.
18. The plaintiff was reviewed by Dr. Kennedy on 4th November, 2014. At that time, he still had back pain radiating to the left anterior thigh. He complained of pain in the cervical spine to the shoulders and stated that he would awake with pain, two to three times a night. This made him irritable. He still had episodes where his back would seize up and he would get severe back pain. This would last for a couple of hours. The plaintiff reported that his work was interfered with by neck and back pain, he had problems concentrating and it was difficult for him to get comfortable at his desk when in pain. He stated that this occurred daily. His sleep disturbance made it difficult for him to work. He found long haul flights and travel a problem, as he would experience back pain. He had cancelled a number of social trips as a result, as he was not able for a long journey by plane. His driving duration was reduced. He could last two hours before having to stop the vehicle. He no longer went to the gym and had given up his gym membership. He no longer practiced Aikido.
19. On examination on 4th November, 2014, Dr. Kennedy found straight leg raising to be normal to 80 degrees on both sides. Stepwise there was diminution in power in left lower limb. There was normal tone and coordination and reflexes were normal. Planters were normal, muscle bulk was normal and symmetrical with no wasting. There was some subjective reduction in response to fine touch in the left L2 and L3 dermatomal region. He had normal upper limbs and the muscles were symmetrical on the upper limbs and torso and normal sensation to pin and fine touch. There was normal power, tone, and coordination and normal range of movement in the cervical spine. There was a normal range of movement in the shoulders with no swelling. There were normal reflexes in the upper limbs. He had a normal range of movement in the lumbar spine and normal lumbar lordosis. There was normal flexion. There was discomfort in the lumbar area, when he extended his lumbar spine. The plaintiff reported that he was not as supple as he used to be when he was practising martial arts.
20. Dr. Kennedy noted that examination showed subjectively reduced sensation in the plaintiff’s left anterior thigh. The plaintiff also reported symptoms in keeping with non-specific low back pain, that began a short time after the accident. He had had symptoms for a protracted period. Dr. Kennedy stated that one would have expected an improvement by then. It was difficult to give a prognosis, as there had been little change in his condition to date. Although, Dr. Kennedy’s report was dated 4th November, 2014, he did not have the benefit of the M.R.I. scans, which had been taken in the previous month.
21. Mr. Bough saw the plaintiff for the first time on 4th November, 2014, when he had been referred to him by his G.P., Dr. Fitzgerald. In his report dated 5th November, 2014, he stated that the plaintiff had outlined to him that he had developed worsening symptoms in the 24 hours after the accident, but in the immediate period post-accident, he had felt well. Mr. Bough stated that the plaintiff suffered from pain in his neck, radiating to the right shoulder and upper back, with associated right sided headaches radiating to the temporal region. The report noted that during the first 48 hours after the accident, the plaintiff developed progressively worse pain and limitation of low back movements, with associated pain and parathesia radiating to the left leg and episodes of protective muscle spasm.
22. On examination there was tenderness to palpation centrally over the articular cervical and upper dorsal spine, with movements in the right side of the neck in lateral flexion and upper rotation restricted to 80%. In relation to the plaintiff’s right hand injury, no tenderness was found on examination, but the plaintiff did describe parathesia in the hand on full extension of the metacarpo-phalyngeal joint of the middle finger. On examination, there was tenderness to palpation over the paravertebral muscle and facet joint region of the lower lumbar-sacral spine, especially on the right side and involving the lower three motion segments. The plaintiff had restricted and painful movement in the lower back on examination and limitation of left straight leg raise test, with a positive sciatic stretch sign indicating a degree of nerve root irritation or entrapment. These symptoms had persisted, despite the use of anti-inflammatory and analgesic medication and a soft tissue mobilisation programme.
23. In evidence, Mr. Bough stated that the plaintiff’s back pain was not constant but was sporadic. It was aggravated by activities such as bending, lifting and twisting, which movements could bring the extruded disc into contact with the nerve, which may cause swelling or pain in the nerve. In an addendum to his original report, Mr. Bough stated that the plaintiff suffered from a small focal right para-central disc protrusion at C5-6, with an associated annular tear. He highlighted that this was the only level at which overt disc damage was evident, with significantly reduced signal in the other cervical discs, but no significant loss of height. He outlined that there was also left posterolateral annular bulging at C6-7, with encroachment on the left exit foramen in addition to “a little osteophyte formation anteriorly at C6-7 and in relation to the left exit foramen at C4-5”. He stated that these findings correlated well with the plaintiff’s right sided neck and radicular symptoms.
24. Having reviewed the findings on the lumbar M.R.I. scan, Mr. Bough thought that there was a very good correlation between the persistent clinical findings of lumbar spinal pain, protective muscle spasm, left sciatic pain and limitation of the left straight leg raised test, with a positive sciatic stretch sign and the M.R.I. finding of left para-central extrusion of the L4-5 disc behind L5 and the impingement on the descending nerve roots, slightly more prominently on the left side. He stated that initially he had advised a course of Deltacortial (a steroid medication) in an effort to reduce to the pressure on the nerve roots. He had advised the plaintiff that if that failed to resolve the persistent left sciatic symptoms and signs, recourse to microdiscectomy surgery would have to be considered. When the plaintiff’s symptoms persisted, he referred him on to Mr. Steven Young.
25. Mr. Young saw the plaintiff on 31st August, 2015. The plaintiff complained of paresthesia in the right hand, pain and limitation of movement on the right side of the neck, together with pain and limitation of movement of the lower back and the left sciatic pain persisted. He noted that the plaintiff continued to experience significant problems with his lower back, in particular, he experienced episodes of pain associated with sneezing and to a lesser extent with coughing. He had pain in his legs following active use of the lower back, in addition to episodes of increased lower back pain and protective muscle spasm.
26. Mr. Young stated that when he first met with the plaintiff, he diagnosed a post-traumatic lumbar disc protrusion in the lumbar spine at L4/5. He described the plaintiff’s symptoms at the time of that examination as being “relatively intermittent and not terribly severe on the day”. He stated that he advised the plaintiff against surgery, but highlighted that it may become necessary in the future.
27. The plaintiff attended with Mr. Young again on 1st December, 2015, as his symptoms had worsened. In his report, Mr. Young stated that when he met with the plaintiff on that date, it was clear that he was having “persistent and severe left sided, leg pain, which had not responded to conservative measures”. Mr. Young was of the opinion that a microdiscectomy was the best way to deal with the plaintiff’s pain.
28. On 27th January, 2016, Mr. Young carried out a lumbar microdiscectomy at L4/5. At surgery, a significant enclosed prolapsed disc was found and excised. The plaintiff went on to make an uneventful post-operative recovery.
29. Mr. Young was of opinion that following the procedure, the plaintiff’s leg pain had improved significantly, but he continued to have back pain, which Mr. Young believed was of a soft tissue nature and at that stage, was unlikely to resolve. He believed that it would remain at that level indefinitely. He stated that this surgery was usually effective in treating sciatic pain, but often back pain of a soft tissue nature would continue, due to chronic inflammatory changes in the musculo ligamentus tissues and joints. Mr. Young stated that the plaintiff would have to be “back conscious” throughout his life and would have to avoid lifting heavy weights and avoid any pulling or dragging movements. He was of opinion that although the plaintiff needed to be cautious, he could still do quite a lot with his back and that driving and sedentary work would not be a problem for him.
30. In the course of cross examination, it was put to Mr. Young that the M.R.I. scans had shown that the plaintiff had extensive degenerative changes, in his cervical and lumbar spine and that it was these degenerative changes which were the cause of the plaintiff’s lower back complaints, rather than any injury sustained in the accident. Mr. Young did not agree. He stated that the scan of the plaintiff’s neck showed a disc protrusion at C5/6, together with an annular tear. That was due to degenerative changes in his neck. However, the scan of the lumbar spine was quite different. This showed an extrusion of part of the disc, which had migrated to behind the L5 vertebra. Mr. Young stated that this was almost certainly caused by a traumatic event. This would cause the onset of symptoms, perhaps not immediately, but relatively soon after the traumatic event.
31. The difference between the scans was the extruded disc, which was seen in the scan of the lower back. Mr. Young was of opinion that in the accident, the plaintiff had ruptured fibres in the disc resulting in extrusion of part of the disc.
32. It was put to the witness that the defendant’s expert, Mr. Kapoor, would say that the findings on the plaintiff’s M.R.I. scans and his current condition, were due to wear and tear in his neck and back. Mr. Young disagreed with that opinion. He stated that an extrusion of the disc cannot occur due to wear and tear in the spine. If the disc wears over time, you do not get an extrusion; you get bulging of the disc. Here, a part of the disc had been extruded and a portion of the disc had migrated behind the vertebra.
33. Mr. Young further stated if there was a severe impact, this could cause a fracture of a vertebra or extrusion of part of the disc. This can arise from any form of flexion/extension of the spine. He accepted that it would be an unusual impact to cause a fracture of the spine. Whereas trauma could cause extrusion of the disc material.
34. In this case, Mr. Young was of the opinion that the plaintiff had had an R.T.A., which had caused the disc extrusion. He accepted that the plaintiff has some pre-existing degenerative changes in his back. When he first examined the plaintiff, he advised adopting a conservative approach. This was based on the M.R.I. scans and his clinical assessment of the plaintiff at that time. Subsequently, when the plaintiff returned in December 2015, the plaintiff’s symptoms were of sufficient severity that surgery was warranted. He noted, as Mr. Kapoor had, that the plaintiff experienced leg pain when sneezing. This was suggestive of irritation of the nerve, caused by a rise in pressure in this spinal canal. He was in agreement with Mr. Kapoor, that surgery was not required initially. However the findings on the M.R.I. scan of the disc pressing on the nerve root causing leg pain, was entirely consistent with the plaintiff’s complaints. In terms of the onset of pain, Mr. Young stated that an extruded disc was rather like a loose bit of metal in an engine, so depending on where it was, it caused more symptoms. When it gets to a nerve root, then a patient experiences symptoms, as had happened in this case.
The Defendants Evidence
35. Dr. Kapoor, Consultant Orthopaedic Surgeon, gave evidence on behalf of the defendant. He examined the plaintiff on one occasion on 30th August, 2014. At that examination, the plaintiff complained of discomfort in his right hand. Mr. Kapoor was of the opinion that this was not as a result of the accident, but was related to a prior injury. In relation to the neck, he stated that the plaintiff had a “normal attitude of cervical spine with excellent range of movement, with slight discomfort at the extremes”. There was no evidence of acute spasm. The plaintiff took Neurofen Plus to address his pain. He stated that although the plaintiff had some discomfort in his neck, he had no signs of nerve root irritation. The injury to his neck was most likely soft tissue in nature and was likely to resolve within 18 - 24 months from the accident. As there was no stress on the nerve root, or nerve root irritation, the plaintiff did not need surgery.
36. In relation to the plaintiff’s back complaints, following assessment of the M.R.I. scan 28th October, 2014, the findings thereon were consistent with degenerative changes in his back, that were pre-existing at the time of the accident. Mr. Kapoor stated that a disc prolapse was rarely, if ever, seen in non-degenerative discs, unless there was extensive trauma such as a fracture or dislocation, with disruption of the disc material.
37. Mr. Kapoor stated that in his opinion, if the extrusion had been caused by the accident, this would have been evident within a short time of the accident at the acute stage. Based on his assessment of the plaintiff in August 2014, he was of opinion that the plaintiff had degenerative discs, rather than an acute injury to his discs. Based on his clinical findings, he was of opinion that the plaintiff’s problems were due to degenerative discs. He stated that this was confirmed by the M.R.I. scans. He stated that Mr. Young’s findings at the examination in August 2015, that straight leg raising test was full, with only some limitation of movement of the back, suggested that the plaintiff had a degenerative back rather than a prolapsed disc caused by trauma. He did not think that the plaintiff’s symptoms at that time warranted surgical intervention. However, he acknowledged that in Mr. Young’s addendum to his report, he stated that the plaintiff was suffering from unrelenting leg pain when he returned in December 2015. He stated that this was one of the symptoms in patients which would indicate that they were suitable for a microdiscectomy operation.
38. Mr. Kapoor was of opinion that the plaintiff’s leg pain was a spontaneous progression of degenerative disc disease in his spine, rather than an acute traumatic event. He stated that it would take a massive amount of force to cause a normal disc to prolapse; he stated that one would need to dislocate the spine, or fracture it, for a normal disc to come out.
39. The plaintiff in this case is 38 years of age, having been born on 10th December, 1978. As a result of the road traffic accident on 15th May, 2013, he sustained an injury to his right middle finger, a soft tissue injury to his neck and a soft tissue injury to his lower back, resulting in the need for a lumbar microdiscectomy at L4/5 in January 2016.
40. The plaintiff has had a relatively significant amount of medical intervention in addressing his back injury. He attended a local G.P. on the day after the accident in relation to pain in his right hand and neck. In September 2013, he attended another G.P. in Gorey, when his back had gone into spasm. That doctor prescribed additional medication. Later that year, he attended with his uncle, who is an osteopath. He received approximately 15 sessions of treatment from him. The plaintiff had an M.R.I. scan of the cervical and lumbar spine carried out in October 2014. He then consulted with Mr. Bough, Consultant Orthopaedic Surgeon, who advised conservative treatment and prescribed Deltacortoril. When his symptoms did not settle, Mr. Bough referred him on to Mr. Young.
41. Mr. Young had two consultations with the plaintiff. Due to the plaintiff’s growing sciatic pain, he carried out a microdiscectomy at L4/5 on 27th January, 2016. This was successful in treating the plaintiff’s sciatica. However, he continues to experience lower back pain. The plaintiff stated that he continues to experience such pain on a daily basis. He also has some neck pain, particularly in the morning.
42. The plaintiff is effectively self-employed, acting as a project manager in respect of a number of business ventures carried on by him and members of his family in Ireland and the U.K. This allows him to regulate the hours during which he carries out his work duties. As he can be flexible in relation to his working hours, he has not missed any time from work, nor suffered any loss of earnings as a result of his injuries.
43. The central conflict in this case is between the medical experts. Mr. Bough and Mr. Young are of the opinion that the injury to the plaintiff’s neck and, more particularly, to his lower back, were caused by trauma sustained in the accident, leading ultimately to the need for the operation carried out in January 2016.
44. The defendant’s expert, Mr. Kapoor, is of the view that the plaintiff’s condition was due to the progression of degenerative changes in his back, which were clearly evident on the scans taken in October 2014 and was not referable to the accident in 2013.
45. The court prefers the evidence of Mr. Bough and Mr. Young that the presence of the extrusion from the disc at L4/5, is highly indicative of a trauma related injury to the lower back. The court accepts Mr. Young’s evidence that the extrusion of part of the disc, was almost certainly caused by a traumatic event, in this case being the R.T.A. on 15th May, 2013. The court prefers his opinion, to the effect, that the plaintiff probably ruptured fibres in the disc in the accident, leading to extrusion of part of the disc. The court accepts his evidence that an extrusion of the disc cannot occur due to wear and tear in the spine. The court prefers Mr. Young’s opinion that if the disc wears over time, you do not get an extrusion of the disc, you get bulging in the disc. In this case, part of the disc was extruded and has migrated behind the 5th vertebra. The court is satisfied that this was caused by the trauma sustained in the accident.
46. The conclusions reached by Mr. Bough and Mr. Young are supported by the following facts: firstly, while the plaintiff may have had some degenerative changes in his spine prior to the accident, the uncontroverted evidence of the plaintiff was that he did not suffer from back pain before the accident. He was a fit man, who attended the gym and practiced Aikido. The court accepts his evidence in this regard.
47. Secondly, the plaintiff is a young man. While not unheard of, it would be unusual for a man of his age to experience such symptoms, solely due to the presence of degenerative changes in his spine. Thirdly, the temporal onset of the symptoms in the weeks after the accident, suggest that those symptoms were caused by the accident.
48. Accordingly, the court is satisfied that as a result of this accident, the plaintiff suffered a minor injury to the middle finger of his right hand, a soft tissue injury to his cervical spine, which was superimposed on pre-existing degenerative changes in that area and a soft tissue injury to his lower back, which caused an extrusion of part of the disc at L4/5 level. This latter injury caused pain in the back and pain radiating into the left leg. The sciatica was relieved by the microdiscectomy operation carried out in January 2016. However, the operation did not eradicate the plaintiff’s back pain. He continues to experience pain in his back and neck on a daily basis.
49. Mr. Young is of the opinion that the soft tissue injury to the plaintiff’s lower back, will cause him pain in the long term. In addition, he will always have to be a “back conscious” person and avoid lifting, bending and twisting movements. Taking all of these matters into consideration, I award the plaintiff general damages for pain and suffering to date of €45,000; together with €40,000 for pain and suffering and disablement into the future. To this must be added the sum of €6,881 for agreed special damages, giving an overall award of €91,881.