THE HIGH COURT
1985 NO.405P
BETWEEN:
JOHN MICHAEL CONLEY
PLAINTIFF
AND
JOHN ANTHONY STRAIN, COLM GALVIN AND THE WESTERN HEALTH BOARD
DEFENDANTS
Judgment of Mr. Justice Lynch delivered the 5th day of August 1988.
This action arises out of a road traffic accident between two motor cars that happened on the night of Whit Sunday the 10th of June and Monday the 11th of June 1984 in Salthill, Co. Galway. The action between the Plaintiff and the first Defendant, the owner of one of the motor cars, was ready for trial and was listed for trial for the 20th of May 1987 when the first Defendant sought to join as third parties the person and the corporate body who are now the second Defendant and the third Defendant in order to claim contribution against them on the basis of an allegation that the consequences of the road traffic accident had been seriously aggravated by negligence in the treatment of the Plaintiff by the second Defendant as the servant or agent of the third Defendant in he third Defendant's hospital. The first Defendant also sought and was given leave to amend his defence by pleading that the alleged negligence of the second Defendant and the third Defendant constituted a novus actus interveniens so far as any aggravation of the Plaintiff's injuries is concerned. As a result of this application on behalf of the first Defendant the Plaintiff was advised that in order to protect his ri9ht to his full damages he must join the second Defend and the third Defendant as Defendants and accordingly that was done and the trial of the action was delayed a year.
The first Defendant does not deny negligence but pleads contributory negligence related to the failure of the Plaintiff to wear a seat-belt which was available to the Plaintiff in the first Defendant's motor car. This plea makes it necessary to consider the whole circumstances of the road traffic accident in order to determine if the first Defendant has discharged the onus of proving that the Plaintiff was guilty of contributory negligence as alleged and if so, in order to determine also the degrees of fault to be apportioned to the first Defendant and the Plaintiff respectively.
THE FACTS OF THE ROAD TRAFFIC ACCIDENT CONCLUSIONS THEREFROM
The accident actually happened at 1.50 a-m on Monday the 11th of June 1984. The scene of the accident was a crossroads comprised of a major road called Dr. Mannix Road intersecting two minor roads, namely, Dalysfort Road coming from the north to Dr. Mannix Road and DfAlton Drive coming from the south to Dr. Mannix Road opposite Dalysfort Road.
The Plaintiff was a passenger in an Opel motor car owned by the first Defendant and driven by his son. As I have said the first Defendant does not deny that his son was negligent in driving his car on the occasion in question but he pleads that the Plaintiff was also negligent in failing to wear a seat-belt which was available to him as a front seat passenger in his Opel car. The Plaintiff has no recollection whatever of the accident and accordingly was unable to give any assistance in his evidence regarding the circumstances of the accident. The first Defendant's son, the driver of the Opel car, was not called as a witness and consequently I received no assistance from either of the occupants of the Opel car regarding the exact circumstances of the accident. The only occupant of the other motor car which was a taxi was it's driver, a Mr. Martin Grealish, who has since emigrated to Australia and was therefore not available as a witness either. The evidence adduced before me as to the circumstances of the road traffic accident comprised the evidence of Garda Michael Conroy who investigated the accident immediatley after its occurrence and who produced a sketch map of the scene of the accident: a Public Service Vehicles Inspector, Sergeant John McNulty: a pedestrian, Mrs. Geraldine Walker who was passed out on Dalysfort Road by the Opel motor car immediately before the accident: and a motor assessor, Mr. Patrick Wallace.
From the evidence of the foregoing witnesses I conclude that the first Defendant's son drove the Opel motor car at approximately 50 miles per hour downhill along Dalysfort Road on his wrong side of the centre white line where Dalysfort Road emerges on to Dr. Mannix Road, through a stop sign and through a stop line without slowing down much less stopping as he ought to have done. The Opel motor car was then driven out across Dr. Mannix Road where it collided with Mr. Grealish's taxi.
The first Defendant's Opel car then careered onwards completing its crossing of Dr. Mannix Road and it travelled into D'Alton Drive where it ended up on its roof. In the course of these events the Plaintiff was thrown through the windscreen of the Opel car and he ended up lying on D'Alton Drive partly under and being crushed by the bonnet of the Opel car. From the fact that the Plaintiff was as a matter of probability thrown through the windscreen and from the fact that he ended up under the bonnet of the upturned Opel car infer that prior to the accident the Plaintiff had been a front seat passenger in that car. There is no evidence that there was any other occupant of that car apart from the first Defendant's son and the Plaintiff. The Opel car was fitted with seat-belts in good working order. I am driven to the conclusion therefore that the Plaintiff was not wearing the seat-belt which was available to him because if he had been wearing it. I have no doubt but that he would not have been thrown out of the car and on to the road. The Plaintiff's surgeon gave evidence that a person thrown out of a motor vehicle is thirty times more likely to suffer serious injuries in a road traffic accident than a person who remains in the crashed vehicle. This evidence together with the evidence that the Plaintiff was lying under the Opel motor car when it finished its journey upside-down in D'Alton Drive leads me to the inevitable conclusion that the Plaintiff's failure to wear the seat-belt which was available to him contributed to the gravity of his injuries. I find therefore that the first Defendant has discharged the onus of proving that the Plaintiff was guilty of contributory negligence within the meaning of that term as used in Section 34 of the Civil Liability Act 1961 and I must therefore establish the degrees of fault of the first Defendant's driver and the Plaintiff respectively.
Usually a person is either negligent or not negligent and the addition of adjectives does not alter the legal position. When one comes to apportion fault under Section 34 of the Civil Liability Act 1961, however, it seems to me that one must fall back on adjectives. The first Defendant's son's driving as already described was so grossly negligent as to amount in my opinion to recklessness. Of course this very recklessness should have alerted the Plaintiff to the importance of wearing the seat-belt. Nevertheless the primary cause of the Plaintiff's injuries was the collision between the Opel car and the taxi and if the driver of the Opel motor car had not been reckless and had not been involved in that accident then the failure of the Plaintiff to wear the seat-belt would have had no adverse consequences for him. A front seat passenger in a motor car does not by his failure to wear a seat-belt which is available to him forfeit his right to have the driver exercise all due care to avoid injuring him by negligent driving.
As against the reckless driving of the first Defendant's son there is the negligence of the Plaintiff in failing to wear the seat-belt. There is no evidence as to how far the car had travelled from the time the Plaintiff got into it until the accident. The further the journey the greater the opportunity of the Plaintiff to use the seat-belt: the shorter the journey the less the opportunity. There is no evidence whether the first Defendant's son drew the Plaintiff's attention to the presence of the seat-belt or advised the Plaintiff to avail o the seat-belt. There is no evidence that the first Defendant1, son was not available to be called as a witness. The Plaintiff having no memory of the accident, the first Defendant's son is the only person who could clear up these points and the first Defendant has chosen not to call his son as a witness and has therefore chosen to leave these matters unproven.
In all the circumstances of this case I think that the just and equitable apportionment of fault between the first Defendant and the Plaintiff pursuant to Section 34 of the Civil Liability Act 1961 as construed by the Supreme Court in the cases cited to me is 86% on the first Defendant and 14% on the Plaintiff which expressed as fractions means very slightly more than six sevenths on the first Defendant and very slightly less that one seventh on the Plaintiff.
THE FACTS OF THE MEDICAL NEGLIGENCE ISSUE AND CONCLUSIONS THEREFORM
No allegations of negligence were initially made by the Plaintiff in relation to his medical and hospital treatment in is action as first constituted in which the first Defendant was the sole Defendant. The allegations of negligence against the second Defendant and the third Defendant as now made by the Plaintiff were put forward by the first Defendant almost three years after the road traffic accident described above. In order to determine whether these allegations of negligence against the second and third Defendants are established or not it is necessary to examine the original injuries sustained by the Plaintiff and the course of treatment of the Plaintiff whilst in the third Defendant's hospital under the care of the second Defendant.
In the road traffic accident on the 11th of June 1984 the Plaintiff sustained a compound comminuted depressed fracture of the skull in the right parietal area that is to say above the right ear. The fracture was a large one measuring approximately two and a half inches by one inch and a segment of bone had been driven partly into the brain. An emergency operation was performed on the Plaintiff by Mr. Timothy Ryan, Senior Surgical Registrar at Galway Regional Hospital. Mr. Ryan found road gravel and dirt embedded in the tissues of the Plaintiff's wound. He removed all road gravel and dirt from the wound which he possibly could remove and also as much tissue as appeared to be contaminated and also pieces of loose bone.
When the Plaintiff had been admitted to Galway Regional Hospital he was deeply unconscious with virtually no vital signs and he remained so after the operation performed by Mr. Ryan. The first vital signs reappeared about 9 a.m. on 12th of June 1984 that is to say over 24 hours after his admission to hospital but the Plaintiff remained unconscious until the 15th of June 1984. Thereafter the Plaintiff appeared to make steady progress but exhibited some left-sided facial palsy and left-sided weakness first observed on the 16th of June after the Plaintiff had regained consciousness and when examined by a doctor. (See the consultant's notes page 4 and the Intensive Care Unit notes page 31). The Plaintiff remained in the Intensive Care Unit of the Regional Hospital until the 19th of June, that is to say some eight days after his first admission in the early hours of the 11th of June. On the 19th of June 1984 the Plaintiff was transferred to a hospital ward where he continued to improve, became more fully conscious, and was able eventually to get out of bed and walk.
The Plaintiff's temperature remained in or about normal although it did rise above normal on a few occasions before his transfer from the Intensive Care Unit. The wound in his head continued to ooze slightly also before his transfer to the ward but thereafter dried up. Following his transfer to the hospital ward the Plaintiff continued to make progress. He was able to walk and attend physiotherapy and also to talk. Although he could do all these things however the Plaintiff suffered bouts of confusion at times when he was in the ward and even if he had had no setback he would, I am satisfied, have had serious disabilities for the rest of his life although not comparable with his present disabilities.
At 1.30 a.m. on the 27th of June 1984 the Plaintiff called for nursing attention saying that he felt his head was wet. It was found that he was suffering from a spontaneous arterial bleed from the fracture site in his head. The Plaintiff became agitated and complained of headaches. By 1.50 a.m. the Plaintiff was deeply unconscious with a blood pressure of 150 systolic which became 200 at 2 a.m. The second Defendant was called and informed of the emergency and came as soon as possible into the hospital from his residence and commenced an operation on the Plaintiff at about 2.30 a.m. during the course of which the second Defendant removed a clot from the right side of the Plaintiff's head in the area of the original fracture. The second Defendant found difficulty in stopping bleeding within the skull; the bleeding took the form of a widespread ooze of blood from the dura covering the brain. The second Defendant spent more than an hour seeking to stop this bleeding and eventually in a final effort to stop the same used the contents of three packs of surgi cell placed side by side on the dura. The second Defendant then closed the wound as best he could having regard to the fact that the loss of tissues which had had to be cut away because of contamination by road gravel and road dirt made it difficult to achieve a full closure and he left a corrigated drain in the wound to carry off any further bleeding in case that that should occur and then bandaged the Plaintiff's head to protect the wound and keep the brain sterile and the drain and surgi cell in place.
Because of the Plaintiff's extremely high blood pressure which tended to increase the difficulty of controlling bleeding and to give rise to a danger of yet further bleeding the second Defendant in consultation with the anaesthetist, Doctor Gwendoline Murray, advised the administration of a hypertensive drug with a view to reducing the Plaintiff's systolic blood pressure to the region of 80 to 90 thus hopefully reducing the danger of further arterial bleeding under the skull.
Accordingly a drug called arfonad was given to the Plaintiff intravenously. This succeeded in reducing the blood pressure over the next 24 hours so that the systolic pressure at 5 a.m. was 100, at 6.30 a.m. was 110, at 7 a.m. was 95, at 8 a.m. was 88 and thereafter ranged between 100 and 140 over the next few days.
Following the operation by the second Defendant on the 27th of June 1984 the Plaintiff was returned to the Intensive Care Unit of the Galway Regional Hospital where he remained in a critical condition deeply unconscious and on a ventilator. At this stage the second Defendant was anxious to transfer the Plaintiff to the neuro-surgical unit in the Richmond Hospital Dublin but judged in consultation with other members of the hospital staff that the Plaintiff was not fit for such a transfer until the 4th of July 1984. On that date the Plaintiff was transferred by ambulance to the Richmond Hospital where a C.T. scan was carried out which showed displacement of the brain to the left side. An operation was then carried out at about 1 p.m. on the 5th of July 1984 at which a clot was removed from the area of the original fracture and also the surge cell which had been used by the second Defendant in his efforts to stop the bleeding. The Plaintiff remained deeply unconscious throughout his stay in the Richmond Hospital and also following his return to the Galway Regional Hospital on the 27th of July 1984. The Plaintiff first recovered consciousness about November 1984.
In opening the case for the Plaintiff Counsel put the Plaintiff's case in negligence against the second and third Defendants under six headings and I am satisfied that in making this case Counsel for the Plaintiff was in effect adopting the allegations made by the first Defendant against the second and third Defendants. I set out hereunder the six headings but not quite in the same order as made to me by Counsel.
First, it was submitted that following the emergency operation carried out by Mr. Ryan on the 11th of June 1984 the doctors in the Regional Hospital Galway and in particular the second Defendant should have sought advice as to the Plaintiff's further treatment from a neuro-surgical centre either the Richmond Hospital, Dublin, St. Vincent's Hospital Dublin, or the Regional Hospital, Cork, and they did not do so.
Secondly, it was submitted that the Plaintiff should have been transferred as soon as possible after the operation of the 11th of June 1984 to such a centre and was not.cThirdly, it was submitted that the need to consult a neuro-surgical centre and to transfer the Plaintiff to such became more pressing when the Plaintiff began to show signs of non-recovery by oozing from the head wound, a varying temperature and a left-sided palsy or weakness.
Fourthly, it was submitted that the Plaintiff should have been transferred as soon as possible to a neuro-surgical centre after the 27th of June 1984 and that this should have been done before the 4th of July when the Plaintiff was in fact transferred to the Richmond Hospital, Dublin, and that consultation with such a centre should have been had immediately after the 27th of June 1984.
Fifthly, it was submitted that when the operation of the 27th of June 1984 had been completed it was wrong as the Plaintiff and the first Defendant alleged was done to pack the Plaintiff's skull with surgi cell and then to put a tight bandage around the same because it was submitted that the brain needed room to expand and should be allowed to do so.
Sixthly, it was submitted that following the operation of the 27th of June 1984 it was wrong for the second Defendant to prescribe hypertensive drugs which would have the effect of lowering the Plaintiff's blood pressure and it was submitted that in the case of a serious head injury one should not seek to lower the blood pressure at all.
Before dealing with the foregoing allegations of negligence by the Plaintiff and the first Defendant against the second and the third Defendants I want to make some preliminary observations.
With one exception, the medical witnesses called on behalf of the Plaintiff and the first Defendant were at the disadvantage of not having seen the Plaintiff at any relevant I time. Their evidence as to the adequacy or inadequacy of the care and treatment of the Plaintiff is based wholly on a study of the medical records of the Plaintiff and their interpretation of such records commenced some two and a half years after the emergency treatment of the Plaintiff was all over. The exception is surgeon Terence Doorley who carried out m the operation on the Plaintiff in the Richmond Hospital, Dublin, on the 5th of July 1984. Even in the case of Surgeon Doorley, however, it did not occur to him at that time to question or criticize the treatment given to the Plaintiff in Galway Regional Hospital before his transfer to the Richmond Hospital on the 4th of July 1984. It was only a few days before the commencement of the trial of this action on the 10th of May 1988 that Surgeon Doorley was asked to study the Galway Regional Hospital and Richmond Hospital records which were delivered to him for such study partly on Sunday the 8th of May 1988 and mainly on Monday the 9th of May 1988. (See question 316 of the transcript of his evidence). The object of such study was to see whether there was anything in the Plaintiff's medical records which might be capable of being criticized and Surgeon Doorley was wholly dependent on his study of the records in forming the opinions which he expressed. (See question 255 of the transcript of his evidence).
The status of the medical records should be clearly understood. They were disclosed on discovery of documents by the second and third Defendants and copies were made available to all parties before the trial and to me at the trial. The fact that copies of the medical records were furnished to all parties enabled them to examine and cross-examine witnesses by reference to those records. The fact that copies of the records were furnished to me at the trial makes them evidence in the sense that I can study them and take them into account but it does not elevate them into the status of irrefutable evidence and where their accuracy or interpretation is challenged they are obviously capable of being outweighed by other evidence.
One of the most important challenges to the accuracy and interpretation of the medical records of the Plaintiff relates to the consultant's operation record dealing with the emergency operation carried out by the second Defendant in the early hours of the 27th of June 1984. That note was not written by the second Defendant but by a junior doctor who was present at the operation and it contains a paragraph reading:-
"Numerous bleeding points from brain substance – not possible to control."
All the medical witnesses before me agreed that the reference to bleeding points from the brain substance was wrong: that the bleeding was from the outer surface of the dura, and that accordingly the note should read "Numerous bleeding points from the dura instead of from brain substance.
As regards the second part of that paragraph "not possible to control" the second Defendant said that that was also wrong and that he regretted that he had not written the operation notes himself. (Question 500 of the transcript of the second Defendant's evidence). The second Defendant also gave positive sworn testimony that he did eventually succeed in controlling and stopping the bleeding albeit that it took him almost one and a half hours to do so.
The junior doctor who wrote that operation note was not called as a witness. If he had been called as a witness he would no doubt have explained what he meant by "brain substance" and would presumably have said that he meant the dura. He might well have gone on to explain that what he intended to convey about the bleeding was that it was not
possible to control it for longer than he had ever previously experienced but that ventually after about one and a half hours the second Defendant succeeded in stopping it. However, it is idle to speculate about what the junior doctor might have said if he was called as a witness when he was not called as a witness.
Reference was also made by the Plaintiff and the first Defendant to the referral letter dated the 4th of July 1984 sent with the Plaintiff on his transfer on that date to the Richmond Hospital, Dublin. That letter contains the words "multiple bleeding points found - not possible to control".
That letter was not written by the second Defendant either. It was written by a Registrar to the second Defendant and the contents were clearly a synopsis of the Plaintiff's medical records and the words in question were clearly taken from the operation notes already referred to. The writer of that letter was not called as a witness either and the inclusion of those words in that letter adds nothing to the case being made by the Plaintiff and the first Defendant to the effect that the second Defendant never achieved control of the bleeding and therefore closed up the Plaintiff while he was still freely bleeding from the dura.
The second Defendant gave positive sworn testimony that he finally achieved haemostasis with the aid of surgi cell before he closed up the Plaintiff. (See transcript of the second Defendant, question 147, 177, 178, 380 to 383, 501 to 503). This evidence was to a certain extent corroborated by the evidence of Surgeon Timothy Ryan that he heard later on the morning of the 27th of June 1984 about the Plaintiff's haemorrhage and consequent operation earlier that morning and that haemostasis was eventually achieved. (Question 115 to 118 of Surgeon Ryan's evidence). I am not prepared to accept the unsworn, unverified and untested by cross-examination entry in the notes of the operation of the 27th of June and in the referral letter of the 4th of July in preference to the positive sworn and cross-examination tested evidence of the second Defendant on this point and I therefore find as a fact that haemostasis was achieved before the operation of the 27th P of June 1984 was terminated and the Plaintiff closed up. I accept also the evidence of Surgeon Timothy F. Buckley on this point at questions 131 to 145 of his transcript and Mr. Johnson at questions 141 and 162.
This is an important finding of fact because some of the evidence given by the medical witnesses called on behalf of the Plaintiff and the first Defendant was given on the assumption that haemostasis was never achieved before the Plaintiff was closed up on the 27th of June 1984. (For example see questions 156 and 173 and 174 of Surgeon Doorley's evidence). It also means that the fact that the second Defendant was unaware that hydrogenperoxide and hitch stitching can be used as a means of achieving haemostasis is irrelevant.
I come now to deal with the six allegations of negligence against the second and third Defendants as summarized above.
As regards the first allegation it is conceded on behalf of the Plaintiff and the first Defendant that the operation performed by Surgeon Ryan on the 11th of June 1984 was necessary as an emergency operation to be performed when it was and was properly carried out. It is however alleged that in the week following that operation and in particular between the 16th and the 19th of June 1984 there developed three warning signs of possible trouble, namely, an ooze from the head wound a raised temperature and left-sided weakness. The allegation is made that in view of these alleged warning signs advice should have been sought from a neuro-surgical centre as to what should be done in relation thereto. These alleged warning signs or three red lights as they were frequently called by Counsel for the Plaintiff and Counsel for the first Defendant arise on the construction put on the notes by the medical witnesses called on behalf of those parties. The second Defendant and Surgeon Ryan who were seeing the patient daily deny that the matters interpreted as warning signs or red lights were such at all and say that the Plaintiff and the first Defendant's witnesses are misinterpreting the records. Surgeon Ryan and the second Defendant say that the Plaintiff was making steady progress following his operation on the 11th of June until his transfer to the ward on the 19th of June and thereafter until the sudden critical secondary haemorrhage in the early hours of the 27th of June.
I prefer the evidence of the medical men who had the Plaintiff under their care and who watched over him daily and who with the help of the nursing staff monitored all the Plaintiff's vital functions in a manner that has not really been criticized. (See for example the transcript of Surgeon Ryan's evidence at questions 25 to 29, 78, 87, and 94 and 95
and the transcript of the second Defendant's evidence at questions 118 to 123). There was therefore no onset or development of anything in the Plaintiff's condition following his operation of the 11th of June to call for advice from a neuro-surgical centre or to give rise to concern until the sudden critical secondary haemorrhage occurred in the early (hours of the 27th of June. Moreover, if a neuro-surgical centre had been contacted and had been told of the Plaintiff's operation and subsequent apparent satisfactory progress such centre would have advised that the Plaintiff should be kept in Galway Regional Hospital and there monitored carefully as in fact was done. (Question 154 and 155 of Surgeon Crockard's evidence).
I am satisfied that there was no negligence on the part of the second Defendant in not seeking advice from a neuro-surgical centre following the operation of the 11th of p June and before the 27th of June 1984 and I therefore reject the first allegation of negligence set out above.
The second allegation of negligence is that the Plaintiff should have been transferred as soon as possible after the operation of the 11th of June 1984 to a neuro-surgical centre H and was not. The matters which I have mentioned in dealing with the first allegation of negligence apply also in relation to this allegation and I therefore reject the second allegation of negligence against the second and third Defendants.'
The third allegation of negligence that the need to consult a neuro-surgical centre and transfer the Plaintiff to such a centre became more urgent when the Plaintiff began to show signs of non recovery demonstrated by the so called three red lights is also covered by what I have said in dealing with the first allegation of negligence. I refer also to questions 21 and 22 of the transcript of Surgeon Buckley's evidence. I therefore reject the third allegation of negligence against the second and third Defendants.
The fourth allegation of negligence referred to above is that the Plaintiff should have been transferred as soon as possible to a neuro-surgical centre after the 27th of June 1984 and that this should have been done before the 4th of July when he was in fact transferred to the Richmond Hospital, Dublin, and that consultation with such a centre should have been had immediately after the 27th of June 1984.
I accept the evidence of the second Defendant, of Surgeon Ryan and of Doctor Gwendeline Murray that the Plaintiff was hanging by a thread between life and death in the week from the 27th of June to the 3rd of July 1984 and that any attempt to transfer him in that period would most probably have been fatal. (See the transcript of Surgeon Ryan's evidence at questions 36 to 41, of Doctor Murray's evidence at question 80 and of the second Defendant's evidence at question 211 to 220, 535, 536 and 607). So far as consulting a neuro-surgical centre for advice whether to transfer the Plaintiff or not is concerned the ultimate decision had to be that of the doctors on the spot (question 59 of Surgeon Buckley's evidence) and in my opinion the decision arrived at by those doctors not to transfer was a reasonable one and the fact that the decision was made by them on their own responsibility and without seeking the advice of persons who are over a hundred miles away was not negligence. I therefore reject the fourth allegation of negligence against the second and third Defendants.
The fifth allegation of negligence is that when the operation of the 27th June 1984 had been completed, it was wrong to pack the Plaintiff's skull with surgi cell and then to put a tight bandage around it: to which was added in the course of the trial an allegation that the second Defendant should have sought advice from a neuro surgical centre during the operation when he had difficulty in controlling the bleeding from the dura.
I accept the evidence of the second Defendant that the surgi cell was not packed into the Plaintiff's skull, but that three packs of it were used and placed side by side on the dura. (Q.138 to 146 and 393 to 402). I was furnished with a sample packet of surgi cell similar to those used by the second Defendant. Even folded so as to be five or six layers thick, it remains very tenuous, light and thin and the use of the word "pack" is misleading. The use of surgi cell is not criticized in itself, but it is alleged that too much was used.
Undoubtedly more was used than would probably have been used by a neuro surgeon, but what was used was what the second Defendant, dealing with an emergency, thought necessary to achieve haemostasis. The second Defendant was the man on the the spot charged with the obligation of doing all that he could do to save the Plaintiff's life and in using surgi cell in the quantities which he deemed to be necessary he was not negligent. (See Surgeon Crockard Q.200 to 203: second Defendant Q. 398: Surgeon Buckley Q. 32 and Q. 196).
As the second Defendant achieved haemostasis and dealt adequately with the problems which arose during the operation of the 27th June, it was not necessary for him to consult a neuro surgical centre.
In so far as the criticism of a tight or pressure bandage is concerned, it is significant that Surgeon Doorley did not even remember the bandage. (Q. 24 and 25). The reality is that there is no substance in the criticism of the bandage and the criticism more or less died away as the case progressed.
The use of the bandage as in fact applied was reasonable and proper and I therefore reject the fifth allegation of negligence against the second and third Defendants.
Finally, I come to the sixth allegation against the second and third Defendants, namely, that it was wrong to prescribe hypotensive drugs to lower the Plaintiff's blood pressure in the case of a serious head injury such as the Plaintiff had suffered both in the road traffic accident and by the secondary haemorrhage.
A great deal of evidence was adduced on this topic. I did not find the evidence that there was an established school of practice that favoured such treatment in serious head injury cases convincing. I have come to the conclusion on the probabilites that such a course of treatment in a serious head injury case is not an option. In these circumstances I find that the second Defendant was wrong in prescribing hypotension and that that error made though it was in the difficult emergency situation described by the second Defendant at questions 190 to 199 was not justified or excusable.
That conclusion brings me to the question whether such erroneous treatment caused any damage to the Plaintiff. Mr. Doorley could not say positively if the crisis on the 27th of June caused the irretrievable brain damage there and then or whether it was a combination of at that time and the hypotensive drugs during the following week but he favoured the latter. (See questions 440 to 450 and 607). Mr. Crockard at times expressed the view that the hypotension was a major contributory factor in the Plaintiff's present condition and at other times said it was impossible to say whether the irretrievable brain damage was caused between 1.30 and 4.00 a.m. on the 27th of June or partly then and partly during the following week. Question 53, 54, 230, and 272 to 276.
Mr. Pidgeon was of opinion that the hypotension was probably a contributory cause of the Plaintiff's present condition and maintained that opinion in his further evidence given on the 27th of July 1988. Doctor Brian Ferris, the Anaesthetist called on behalf of the Plaintiff and the first Defendant was of the same opinion.
Doctor Gwendoline Murray, the Anaesthetist who was present at the operation of the 27th of June 1984 and who arranged the administration of the hypotensive drugs was of the view that that treatment was correct and certainly did not cause any damage to the Plaintiff whose present condition in her opinion is solely due to the road traffic accident and the crisis of the 27th of June. Likewise, Doctor Declan Tyrrell an independent Anaesthetist called on behalf of the second Defendant.
Surgeon Buckley was very strongly of opinion that the hypotension had no adverse effect on the Plaintiff and that the Plaintiff's present condition is due to the road traffic accident of the 11th of June and the critical secondary bleeding of the 27th of June 1984.
Question 205 to 215 and his further evidence of the 27th of July 1988. Also Surgeon F Johnson at questions 47, 48, 80, 197 and 211 to 214.
Finally, there is the evidence of the two medical men who were monitoring the Plaintiff daily, namely, the second Defendant and Surgeon Timothy Ryan. The second Defendant is positive that all the further damage to the Plaintiff was caused on the 27th of June 1984 between 1.30 a.m. and the time when his operation commenced at about 2.30 a.m. Question 208, 535, 536, 542, 543. Surgeon Ryan was of the same opinion. Question 36, 42, 43.
In relation to the operation of the 27th of June 1984 and the condition of the Plaintiff thereafter Surgeon Ryan is really an independent witness not having performed that operation and yet he has the advantage of actually seeing and monitoring the Plaintiff. In these circumstances I think that it is worth quoting the three questions and answers referred to above:
"Q 36. Have you any recollection as to what condition Mr. Conley was in following the operation by Mr. Galvin during the 27th and the next day or two?
Answer He was extremely ill. He was deeply unconscious.
His pupils were still dilated. It seemed absolutely hopeless. In addition to this complete
deterioration - doing worse say than what he had started at - he had evidence of sepsis and he had a temperature. I also think he had developed a chest infection at that stage. I can't be sure.
He did develop chest infection some time after the second operation.
Q 42 Have you any view from your own experience in the Regional Hospital in Galway as to when the major damage to his brain was caused or is it possible to say?
Answer Well it seems to me that there is very little doubt that the major brain damage occurred at the time of the second bleeding. The patient was up and talking and then he became agitated, he began to bleed and within a matter of minutes was deeplyunconscious. I think the major damage to this patient occurred at the time of the second bleeding - the second bleed caused by the second haemorrhage which is a rare but recognised event in head wounds.
Q 43 If you are correct in that, was it being capable of being rectified or remedied by operation?
Answer I think an attempt was made to rectify it. The damage is caused to the brain because of intercranial pressure developing because of the clot forming, and the attempt was made to relieve the blood pressure and that attempt was made very very rapidly within minutes really of the event happening. That is all that could be done. When the intercranial pressure gets very high, you can get coning of the brain - where the base of the brain is forced down to the base of the skull and there is not a lot that can be done when coning occurs. But, one has to do what one can but you can't bring it back once it has gone."
I accept the foregoing evidence of Surgeon Ryan and of the second Defendant and accordingly I have come to the conclusion that the administration of the hypotensive drugs had no adverse effect on the Plaintiff and that the Plaintiff's present condition arises solely from the road traffic accident of the 11th of June 1984 and the secondary haemorrhage of the 27th of June 1984 which is of course a consequence of the road traffic accident.
In these circumstances the only element of erroneous treatment by the second Defendant which I have found caused no damage to the Plaintiff and the Plaintiff's action against the second and the third Defendants must therefore be dismissed.
DAMAGES
Before assessing the damages it is desirable that I should give a pen picture of the Plaintiff and his family and of the injuries suffered by the Plaintiff and their effect on him and his family.
The Plaintiff lives at Poreen, Inverin, Spiddal, Co. Galway with his parents. His father is 62 years old and is unemployed and his mother is 49 years old and since the Plaintiff's accident has obtained employment at about £100 per week in order to pay for medicines and extras for the Plaintiff. The Plaintiff is the second eldest of a family of seven children, the eldest being a sister, Ann, who is married with two young sons and lives about two miles away. Next after the Plaintiff comes a sister, Teresa, aged 23 years who is a clerk: then a brother, Stephen, aged 22 years who is a carpenter and a brother, Tommy, aged 19 years who is a cabinet maker. These last three mentioned all reside in Massachusetts in the United States of America. Finally there is a brother Kevin, aged about 16 years and a sister, Christine, aged about 11 years, both of whom live with the Plaintiff and his parents.
The Plaintiff was born on the 30th of April 1963 and was therefore just 21 years old at the date of the accident on the 11th of June 1984 and is now 25 years old- The Plaintiff was born in Norwood, Massachusetts, in the United States of America and has therefore dual United States and Irish citizenship and is the holder of a current United States Passport.
Consequently, the Plaintiff would not require any working or other visa to live and work in the United States of America.
The Plaintiff was reared in Massachusetts until the age of seven years. The family then moved to Ireland where they remained for two years when they returned to Massachusetts for a further three years. The family then finally returned to Ireland, the Plaintiff being then 12 years old and the Plaintiff has lived in Ireland ever since. The Plaintiff passed his Intermediate Certificate and his Leaving Certificate examinations the latter when he was about 18 or 19 years old. In the Summer or Autumn of 1983 the Plaintiff embarked on a cookery course for the catering industry with a view to becoming a chef. The course in question was a two year course, the examinations for which are set by the City and Guilds of London Institute in conjunction with the Hotel, Catering and Institutional Management Association and the Cookery and Food Association. The Plaintiff had completed the first year of the course and had passed both the written and practical aspects of that year's examinations with credit which means between 70% and 80% in both aspects. As soon as the Plaintiff would have completed the second year of this course in the Spring of 1985 it was his intention to emigrate to Massachusetts in order to obtain work in the catering industry there.
The injuries suffered by the Plaintiff and his treatment for them have already been described in this judgment when dealing with the medical negligence issue. Nevertheless, I think it is desirable to summarize the injuries here.
Apart from lacerations of his right shoulder and right elbow which are now of no consequence the Plaintiff suffered a compound depressed fracture of the right side of the skull above the right ear with part of the bone pushed into the dura covering the brain. He had two operations on his skull in Galway Regional Hospital on the 11th and 27th of June 1984 and a third operation in the Richmond Hospital, Dublin on the 5th of July 1984. Apart from an encouraging recovery of consciousness after the first operation he relapsed into unconsciousness before the second operation and remained unconscious until November 1984. He then gradually recovered consciousness becoming more alert from January 1985. The Plaintiff has however four limb spasticity which is much worse on the right side and he is also deprived of the power of speech.
The Plaintiff's left eye was stitched closed from the 7th of September 1984 to March 1985 in an operation known as a tarsorrahaphy to protect it during the period of the Plaintiff's unconsciousness and semi-consciousness. The Plaintiff is virtually blind in his right eye since childhood. He suffers from intermittent bouts of spots before his left eye (his good eye) and he needs to have the lashes of that eye trimmed or plucked because since the tarsorrahaphy the lashes tend to grow in towards the eyeball and irritate it. He also suffers from intermittent headaches apparently associated with the bouts of spots before his left eye. He can read for short periods and he finds that a machine which greatly magnifies the script is of great assistance to him.
During his periods of unconsciousness the Plaintiff had an intra-tracheal tube and a nasal-gastric tube and he still had the nasal-gastric tube at a time when he was recovering consciousness because he has a memory of it. He developed a urinary infection which fortunately has recovered.
The Plaintiff suffers from contractures in his shoulders, arms and legs. On the 1st of November 1985 he underwent an operation in Cappagh Hospital, Dublin, to lengthen the achilles tendon in both legs to combat the contractures and to try to bring his feet which were turned downwards to a more acceptable angle and this operation has fortunately been reasonably successful but may have to be repeated in the future.
The Plaintiff suffers from involuntary drooling from the mouth. He has to have assistance for all the basic needs of life including bowel and bladder, eating and turning in bed and shifting position in a chair or wheelchair. He is confined to a wheelchair and can just about stand (but not walk) with assistance. He has to have splints put every day on both elbows and on both hands to combat the contractures. He suffers from bouts of depression.
The Plaintiff has some use of his left arm and hand and has learned to communicate with the help of a memo writer although, of course, such method of communication is very slow. The Plaintiff could operate an electric wheelchair if the control were on the left arm of the wheelchair.
The Plaintiff's condition has been very accurately and succinctly set out in a medical report based on an examination of the 18th of April 1988 by a neuro-surgeon called on behalf of the Plaintiff and the first Defendant. This report was handed to me by consent of all parties and I quote from some concluding comments made by the neuro-surgeon:-
"This young, intelligent, communicative and amusing man is imprisoned in a body that responds to very few of his commands. His physical appearance and examination have all the hallmarks of a diffuse spastic injury of the type associated with cerebral palsy secondary to a birth injury. The playwright Christy Nolan is such an example. In this situation the intellect and the psyche may be preserved but the body does not respond to the individual's wishes. He may give the appearance of being stupid or vegetative when, in fact, he is highly intelligent and alert.
In terms of care required, he has been magnificently cared for by his parents. He requires full-time attendance but this does not require to be specialized. He has not had the benefit of a regular nursing visit recently and it appears to have been unnecessary."
I propose in the first instance finding the ascertainable loss being the term used in Doherty .v. Bowaters Irish Wallboard Mills Limited (1968) I.R. 277 to describe both special damages strictly so called and the items of probable future loss and expense which can be actuarially or otherwise quantified. There are a number of findings which I should make at the outset on the balance of probabilities and which will be applied by me throughout the calculations of the various items of damage where appropriate.
1. First the Plaintiff's life expectancy from the present time onwards is 25 years.
2. Regarding future loss of earnings the Plaintiff's actuary on the basis of a life expectancy of 25 years indicated that the capital value of each pound per week lost earnings would be £932. This figure does not however take into account the contingencies of redundancy unemployment, sickness, accident and matters of an economic nature which might interrupt the continuity of the Plaintiff's employment. Taking these matters into account the Defendants' actuary indicated a multiplier of
£870 for each pound per week. Each of these figures is on the basis of applying the multiplier to the net take home pay. In so far as a discount from the multiplier for the dangers of redundancy unemployment is concerned accept the evidence that the employment market in the service sector of the United States of America including the Boston area is much better from the point of view of the job seeker than in Ireland and that such employment in the Boston area looks secure for the foreseeable future.
Furthermore by limiting the future loss to 25 years I am providing for the period when the Plaintiff would be aged 25 years to 50 years, that is to say in the prime of his life and when he would be most mobile and active in following employment opportunities. In the circumstances I think that the discount from the multiplier of £932 for the dangers of redundancy unemployment should be very moderate.
Regarding the risk of unemployment through sickness, it is not suggested that the Plaintiff was not in first class health apart from virtual blindness in the right eye. As I have already said I am dealing with a future period which would have constituted the prime of the Plaintiff's life and therefore the discount for the risk of lay-off from work through sickness must also be very moderate.
Furthermore, I am providing for future loss of employment from the age 25 years by which age most young men have passed the- most vulnerable age for death or injury by accident. The fact that the Plaintiff is and was blind in the right eye undoubtedly exposed him to an added risk of accidental injury but he had already learned to cope with that risk and had acquired a compensatory caution as a result of which he avoided contact sports and, I would infer, any other activity that might give rise to a risk of injury to his left eye. In other words he was already more cautious to avoid accidental injury than other young men of his age despite the fact that he fell victim to the first Defendant's son's recklessness. Finally, the risks of accident at work as a cook or chef are not particularly high so that the discount for unemployment due to accidental injury must also be very moderate.
Future economic factors are quite impossible to predict so again it seems to me that any (if any) reduction in the multiplier for this factor must be very moderate especially as such factors might work either way.
All in all, therefore, it seems to me that a discount of approximately 5% from the multiplier of 932 would be just and equitable. This would work out at 885.4 which I will round down to 885.
3. When one comes to the loss of earnings for the lost years, however, the position is different from the loss of earnings for the next 25 years. I am now providing for earnings from the age 50 to 65 years. The Plaintiff's actuary suggests a multiplier of £318 for each pound per week lost. Unfortunately the Defendants actuary does not appear to have dealt with this figure.
However, for the risks of unemployment due to redundancy sickness or accident or economic factors I discount this figure by 12% which gives a multiplier of 279.84 which round up to 280.
4. For the purpose of calculating the future loss of earnings it is necessary also for me to make findings regarding the relative cost of living in the United States of America and in particular in the Boston area as compared with the cost of living in Ireland. The Plaintiff's economist gave evidence to the effect that the cost of living in Ireland would be slightly higher than the cost of living in Boston at the present time. This is based on an exchange rate of approximately one dollar fifty six cents to the Irish pound. The Defendants' economist on the other hand gave evidence completely contradictory to this evidence and to the effect that the cost of living in the Boston area would be much higher than the cost of living in Ireland.
The Defendants' economist produced an Appendix to a Swiss bank publication showing the price level in 49 major cities throughout the world set out in two columns Zurich was 100 in both columns in this Appendix, the left-hand column excluding any account of the cost of renting acconunodation whilst the right-hand column included such cost. The list of cities world-wide included four American cities, the average cost of living in which as shown by the right-hand column was 163 whereas Dublin was 89. However, if one worked on the left-hand column the average cost of living for the four U.S. cities was 142 whereas Dublin was 94. The figures given in the Appendix related to prices in 1985 and exchange rates in 1985. The level of the average of the U.S. cities in the right-hand column was 83% higher than the Dublin figure. However, the drop in the exchange rate of the dollar from approximately par with the Irish pound in 1985 to approximately one dollar fifty six cents in 1988 meant that the 83% differential had been reduced to about 26%.
If one works on the left-hand column of this Appendix however, the difference in the average of the four U.S. cities and Dublin at 94 was only 48 points higher that the Dublin figure or in other words 51% higher than Dublin in 1985. Having regard to the improvement from a differential of 83% to 26% in the figures in the right hand column which is a reduction of 57% when one works on the left-hand column this indicates that the cost of living in the two areas, namely, Boston on the one hand and Ireland on the other is approximately the same if one omits the very high rentals for accommodation which obtain in the Boston or New York area and takes an exchange rate of $1.56 to the IR. £.
The evidence before me disclosed that the Plaintiff has in addition to his two brothers and one sister already mentioned four uncles on his father's side and two uncles on his mother's side all now resident in the Boston area of the United States of America. In these circumstances I am satisfied that the Plaintiff would have been able to obtain accommodation in the Boston area initially at quite a reasonable price by sharing accommodation with an uncle or his brothers or sister and even afterwards when he would acquire accommodation of his own, for example, on marriage, he would have been able to do so at reasonable costs having regard to the fact that by then he would be well aware of the accommodation market conditions. For these reasons it seems to me that the more comparable column to work on of the schedule produced by the Defendants' economist (if one works on that schedule) is the left-hand column which indicates parity in the cost of living between Ireland and the Eastern seaboard of the United States. In the circumstances I find on the probabilities that there need be no adjustment of the loss of earnings figures on the grounds of any difference in the cost of living between the two areas, if one assumes an exchange rate of $1.56 to the IR. £.
5. For the purpose of converting U.S. dollars to Irish pounds I take an exchange rate of 1.56 dollars to the Irish Pound, even though the Irish Pound has dropped over 10 cents in value since the evidence was given.
6. So far as care and attendance in the future is concerned the Plaintiff's actuary suggested a multiplier of £1,955 for each £100 cost of care and attendance per annum. The Defendants' actuary on the other hand suggested a figure of £1,512 for each £100 per annum and said that the difference is accounted for by taking account of tax reliefs which should be available to the Plaintiff in respect of certain items of his expenditure of a medical or surgical nature which may have been prescribed for him by qualified doctors. In addition the Defendants actuary drew attention to the provisions of the Finance Acts whereby the Plaintiff should be entitled to an extra allowance for income tax purposes of £2,500 per year of interest income over and above the single person's allowance of £2,050 per year.
Taking account of these factors and also of the fact that there may well arise disputes between the Plaintiff's advisers and the Revenue Commissioners as to whether certain allowances should be granted in respect of various items or not, it seems to me on the probabilities that justice and fairness will be achieved if I apply a multiplier of £1,750 for each £100 per year of expenditure of this nature or its equivalent for weekly sums of £910 for each pound per week.
Proceeding on the basis of the foregoing findings the following items of ascertainable loss have been established.
Items proved by Mrs Conley and not challenged
Travel Expenses | £ 2,500.00 |
Medicines | £ 1,000.00 |
Extra clothes and heating | £ 3,000.00 |
Memo writers | £ . 195.00 |
Total of the foregoing four items | £ 6,695.00 |
Loss of earnings | |
Loss of earnings from the 11th of June 1984 to the 30th of June 1985 | £ 2,100.00 |
Three years and 5 weeks loss of earnings from the 1st of July 1985 to date at a gross average of 500 dollars per week or 26,000 dollars per year less taxes at 26% 6,760 dollars net per year 19,240 dollars or £12,333.33 | £ 38,185.00 |
Future loss of earnings at present probable gross rate of 700 dollars per week or 36,400 dollars per year less taxes at 36.4% 13,250 dollars leaving net 23,150 dollars per year or net weekly 445 dollars or £285.25 per week which I round down to £285. Multiplier 885 | £252,225.00 |
Loss of earnings from 25 years hence to age 65 years after living expenses of 350 dollars per week leaving a surplus of 95 dollars per week or £60.89 which I round down to £60 per week. Multiplier 280 | £ 16,800.00 |
Total loss of earnings | £309,310.00 |
Care and attendance | |
Start up extra costs in first three weeks of future professional attendance | £ 2,100.00 |
Semi-qualified live-in attendant at £200 per week plus employer's share of PRSI £24.80 per week plus cost of board £30 per week totalling £254.80 per week say £255 per week. Multiplier 910 | £232,050.00 |
Semi-qualified live-in substitute attendant for 2 days per week at £80 per week plus employer's share of PRSI £9.92 per week plus board £10 per week total £99.92 say £100 per week from 15 years hence for 10 years thereafter. Multiplier 350 | £ 35,000.00 |
For the 15 years commencing now the Plaintiff's family will probably provide over and above domestic help paramedical attendance on the 2 days per week that the professional attendant is off duty. If provided on a professional basis that would cost £100 per week as calculated in the immediately preceding paragraph but I think that the Plaintiff's family would provide it for £50 per week. I apply a multiplier of 546 calculated by dividing 910 by 1.6 recurring because 25 years is equal to 15 years multiplied by 1.6 recurring and as I have taken 910 as the appropriate multiplier for the next 25 years so 546 should be appropriate for the next 15 years | £ 27,300.00 |
Professional domestic live-in help would now cost the Plaintiff £125 per week plus a substitute for 2 days per week at £50 per week plus board at £30 per week plus employer's share of PRSI at £21.70 per week making a total of £226.70 per week. The Plaintiff's family will probably provide such domestic help for £100 per week. However, the Plaintiff would have had to provide himself with some domestic help in any event even if he had never been injured so that it is only the extra cost of such domestic help that must be provided for and I measure the same at £50 per week. Multiplier 910 | £ 45,500.0 |
0
The Plaintiff's family have provided both full domestic help and full 7 day per week paramedical attendance during the following periods up to date
3.12.'85 to 2.1.'86 | 4 weeks |
27.3.'86 to 25.5.'86 | 9 weeks |
6.10.'86 to 2.12.'86 | 8 weeks |
20.12.'86 to 1.3.'87 | 10 weeks |
15.4.'87 to 3.1.'88 | 47 weeks |
1.2.'88 to 5.8.'88 | 27 weeks |
Total weeks to date
I measure the cost of the foregoing past domestic help provided by the Plaintiff's family at an average of £40 per week over and above such help as the Plaintiff would have had to pay for in any event even if he had not been injured. I measure the seven-day past paramedical attendance on the Plaintiff by the Plaintiff's family at an average of £120 per week making a total of £160 per week for 105 weeks | £ 16,800.00 |
Total for care and attendance | £358,750.00 |
Continuing personal needs | |
Medicines, disinfectants, special foods and miscellaneous items as described at page 39/40 of Mr. Hellier's report, items 5.2.1 to 7 at £10 per week | £ 9,100.00 |
Kylie sheets at £27.50 per year (page 11 item 1.3.6. Mr. Hellier's report) | £ 480.00 |
Extra future home heating at £10 per week | £ 9,100.00 |
Medical and hospital attendances at £150 per year | £ 2,625.00 |
Total for continuing personal needs | £ 21,305.00 |
Housing and special equipment therein Alterations to bungalow | £ 20,500.00 |
Environmental control system costing £5,000 and having a life span of 10 to15 years | £ 8,750.00 |
Adjustable bed costing £1,500 and having a life span of 10 years | £ 3,795.00 |
Replacement mattresses for adjustable bed at £50 every 5 years | £ 175.00 |
Ceiling hoist for bed and bathroom area costing £1,232 and having a life span of 10 years | £ 3,100.00 |
Replacement slings for ceiling hoist and maintenance of ceiling hoist at £1 per week | £ 910.00 |
Home standing/walking aids costing £984 and having a life span of 10 years | £ 2,490.00 |
Total for housing and special equipment | £ 39,720.00 |
Communication aids | |
Headstart work station | £ 5,795.00 |
Headstart view control pact | £ 1,550.00 |
Headstart communication pack | £ 950.00 |
Depreciation over life-span of 6.5 years gives depreciation of £24.54 per week - say £21 for reducing prices with increasing technology | £ 19,110.00 |
Maintenance, including special maintenance of modifications at £15 per week | £ 13,650.00 |
Software, subscriptions, extra telephone charges and incidentals at £15 per week | £ 13,650.00 |
Total for communication aids | £ 54,705.00 |
Wheelchairs and equipment
Cost of spare manual wheelchair | £ 408.00 |
Depreciation of both manual wheelchairs over 5 year life-span at £3.14 per week | £ 2,857.00 |
Maintenance of manual wheelchairs at £1 per week | £ 910.00 |
Cost of electric wheelchair | £ 2,100.00 |
Depreciation of electric wheelchair over 5 year period at £8 per week | £ 7,350.00 |
Maintenance, replacement of batteries, battery charging and insurance at £4 per week | £ 3,640.00 |
Roho wheelchair cushion | £ 290.00 |
Replacements/depreciation of roho cushions at £2.75 per week | £ 2,500.00 |
Compact car cushion | £ 70.00 |
Replacement/depreciation of compact car cushion | £ 150.00 |
Mobile hoist | £ 670.00 |
Depreciation of mobile hoist over seven years at £1.84 per week | £ 1,675.00 |
Total for wheelchairs and equipment | £22,620.00 |
Transport and Travel | |
In making calculations relating to the extra cost of a van type vehicle I am satisfied on the probabilities that the VAT element would not be refunded because I conclude that it would be very desirable for the Plaintiff to have a seat fitted behind the front seats so that somebody would be with him to assist him in relation to any needs or companionship which he might require Extra cost of van type vehicle adjusted to take wheelchair | £14,000.00 |
Depreciation of vehicle over four and a half years at £60 per week | £54,600.00 |
Continuing cost of AA or other rescue organization | £ 600.00 |
Extra cost of three and a half weeks holidays per year at £550 per year, or £10.58 per week | £ 9,628.00 |
Total extra costs of transport and travel | £78,828.00 |
In arriving at the various figures under the foregoing headings I have assumed that the prices given by Mr. Hellier in his evidence and in his report are stated in Irish pounds. I am aware, however, that a number of items may be expressed in sterling in which event one should really add about 20p to the pound to arrive at the true cost of such an item. I have decided, however, to deal with these various items all on the basis of Irish pounds and in the interests of moderation and having regard to the views expressed by the Supreme Court in the cases of Reddy .v. Bates (1984) I.L.R.M. 197, Cooke ,v. Walsh (1984) I.L.R.M. 208, and Sinnott .v. Quinnsworth Limited (1984) I.L.R.M. 523 regarding the desirability of keeping awards within the limits of commonsense viewed from the point of view of Irish society and the Irish economy.
SUMMARY OF ASCERTAINABLE LOSSES
Items proved by Mrs. Conley and not challenged | £ 6,695.00 |
Loss of earnings | £309,310.00 |
Care and attendance | £358,750.00 |
Continuing personal needs | £ 21,305.00 |
Housing and special equipment therein | £ 39,720.00 |
Communication aids | £ 54,705.00 |
Wheelchairs and equipment | £ 22,620.00 |
Transport and travel | £ 78,828.00 |
Total for ascertainable losses | £891,933.00 |
GENERAL DAMAGES
The injuries sustained by the Plaintiff and the treatment, care and attendance necessitated by such injuries have already been set out in this judgment and it is unnecessary to repeat them here. Suffice it to say that the Plaintiff is a highly intelligent young man who has a full appreciation of the sad plight in which he finds himself and from which there is no hope of further recovery. The fulfilment of marriage prospects, social enjoyment and the pleasure of work well done will all be permanently lost to the Plaintiff and in fixing the sums for the ascertainable losses I have endeavoured to provide for the Plaintiff alternative forms of interest and enjoyment to compensate him as best money can do (which of course it cannot do) for the disastrous consequences of this accident on the 11th of June 1984.
For past pain and suffering which the Plaintiff has undergone over the last four years and two months or so I have come to the conclusion that the appropriate and just measure of general damages is £60,000.
For the future which is a future much shortened in its expectation of life from what would be the Plaintiff's expectation as a healthy young man of 25 years I have come to ran the conclusion that the appropriate measure of general damages is £110,000.
Finally, for the shortened expectation of life itself, I fix as is usual a relatively nominal sum of £4,000.
The total of the general damages for pain and suffering past and future and shortened expectation of life will therefore be £174,000. When added to the ascertainable losses of £891,933, this gives an overall total sum for damages of £1,065,933. Deducting 14% from this total in respect of the Plaintiff's contributory negligence leaves a net sum of
£916,702.38.
There will be judgment accordingly for the Plaintiff for £916,702.38 against the first Defendant and the action as against the second and third Defendants will stand dismissed.
Dated the 5th day of August 1988.
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