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Cite as: [1988] IEHC 14

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THE HIGH COURT

1985 NO. 2713P

BETWEEN:-

JASON CUNNIFFE an infant suing by his mother and next friend, JUNE CUNNIFFE

Plaintiff

and

MICHAEL JOHN MURPHY

Defendant

JUDGMENT OF MR. JUSTICE EGAN DELIVERED THE 24TH DAY OF OCTOBER, 1988 AT GALWAY

Liability is not denied in this matter. The Plaintiff, Jason Cunniffe, now aged 17, suffered injuries in a car collision on the 2nd October, 1983 when he was aged 12. He sustained a depressed fracture of his frontal bone. He was brought to hospital and on the way to the theatre he had what appeared to be an epileptic fit. The right portion of his frontal bone had multiple fractures and was removed. The left portion was elevated. He was then put on a ventilation and discharged on the 12th October wearing a form of helmet and on anti-convulsant tablets. The following year in the month of August 1984 he had a re-construction operation of his frontal bone with an acrylic plate. This was performed by Mr. Pidgeon in St. Vincent's Hospital, Dublin. There was no doubt but that he had sustained severe brain damage.

As stated previously he had been on anti-convulsant medication which consisted of phenobanbitore tablets but he had no future epileptic attack until the 1st February, 1988.

He had beep weaned off the phenobanbitore from the previous June as there had been no attacks. Medication was resumed in February but since August of this year he has had a succession of epileptic seizures which have persisted despite changes in medication. He even had an attack during the case at lunch time when his cross-examination was due to be resumed in the afternoon and a further attack in the early hours of the following morning. He is now an uncontrolled epileptic and this, of course, is a serious matter. The expert medical evidence was to the effect that most epileptics can be controlled but there is no certainty about this.

Jason has also suffered from severe headaches and blurring of vision akin to double vision. These symptoms have lessened but I am satisfied on the evidence that he will probably have to live with headaches to some degree.

Due to his injuries, his education since his accident has been sporadic and he was unable to prepare himself for any examination. A teacher, Mr. Gerard Fahy, was engaged by his parents to give individual tuition to Jason to prepare him for the transition from primary to secondary school in 1984 but he told the Court that his efforts were unsuccessful. His memory, retention and concentration were poor and he was unable to grasp principles which should have been easy to grasp.

Psychiatric and psychological evidence was called and satisfied that Jason has a liability to depression. His concentration and intellectual stamina are poor and this is apparently common with people who have suffered from frontal lobe damage. He was subjected to tests and the results were strange to some extent. He understood the meaning of words such as "terminate" and "generate" but did not know the meaning of other words in common use e.g., "conceal" and "remorse". He thought that there were 48 weeks in the year and did not know the date of St. Patrick's Day. He was unable to multiply 25 x 6. I am satisfied that he is unable to cope with stress or pressure.

He was an average, normal, happy boy before the accident who would have progressed beyond his present level and potential were it not for the accident.

As regards damages, an important factor would be the question as to whether or not his epilepsy can eventually be controlled. Damages cannot be assessed on the basis that acceptable control will occur. Neither can they be assessed on the basis that control will not be achieved. Probability is not the test in this regard and I must approach the case on the basis that the future is uncertain. I think that Jason would be fit for some forms of unskilled work not involving moving machinery or heights if his epilepsy can be controlled. He could well have been capable of more ambitious work if it were not for his accident. If his epilepsy cannot be controlled, the best he can hope for is a low income in a Rehabilitation Workshop but he will not even be eligible for this work if his damages in this case yield him an income in excess of £47.00 per week.

I have considered the prejudice against the employment of epileptics, the difficulty of securing employment which face even non-epileptics, the actuarial evidence in general which takes no account of the insecurity of jobs in modern times or the possibility of illness. I am fully satisfied that Jason, at the very least, has sustained a diminution of his earning potential.

Taking all relevant factors into consideration, I assess the loss at £60,000.00.

As regards special damages to date a sum of £1,000.00 will be allowed to the father to cover travel and maintenance expenses in Dublin and Galway. £300.00 will be allowed to Dr. Carroll who treated Jason privately and £200.00 will be allowed for Mr. Fahy who gave tuition to Jason. As a result of this case Jason is likely to lose his medical card and will have to pay for whatever medical treatment is required in the future. It would be impossible to quantify what will be required and I can do no more than state that I am bearing it in mind in assessing the general damages.

I assess general damages to date at £50,000.00 and general damages in the future at £60,000.00.

The total is £171,500 and there will be a decree for this amount with costs.