High Court of Ireland Decisions

1. The plaintiff is now 49 years of age. He resides at Douglas, Co. Cork with his wife, son and daughter who are 16 year old twins. Prior to the accident which is the subject-matter of this action he had established himself as a businessman of exceptional ability and dedication. He held then and had held senior management positions in substantial commercial enterprises in the wholesale electrical and entertainment businesses. In that connection he had played important roles in the expansion and development of these businesses. Apart from having managerial skills, he was what is popularly known as a workaholic. He enjoyed working long hours and appears to have been a notable achiever. He also was a dedicated family man. His spare time was devoted to his wife and children and to activities in and about the home such as maintenance work and gardening. At the time of the accident he was in course of re-decorating his house. In the event he was unable to complete the job. I am satisfied that he had a happy home life and the benefit of good relationships with his wife and children. His future seemed set fair.

2. On Sunday, 27th June, 1993 the plaintiff brought his family for an afternoon drive followed by a meal in a cafe on the way home. At about 6.30 p.m. while he drove up a hill the second defendant's car careered down against him going from side to side at high speed and apparently out of control. There was a head-on collision at a combined speed in the region of 100 mph which the plaintiff could not avoid and both cars were wrecked. The force of the impact was such that the front seats in the plaintiff's car were wrenched from their floor moorings. Liability is not in issue. The plaintiff was wearing a seat-belt but, nonetheless, his forehead struck the windscreen and his body and head went violently forward and backwards. His knees hit the dashboard. All the occupants of the car were injured. At first it seemed that the girl was the most seriously affected. She was bleeding heavily from her mouth and from a wound on her face. The plaintiff, though in shock and in some pain, managed to extricate himself from the car and to assist his wife and children. His primary concern at that time was to have his daughter brought to hospital for attention. An ambulance arrived and all were brought to the Regional Hospital, Cork where after emergency treatment they were allowed home. The next day the plaintiff had the following symptoms:-

3. The plaintiff also had a rash in the area of the chest which cleared up after some months. He consulted Dr. Martin Haugh who had been the family doctor for many years and was sent to the Regional Hospital for x-rays which did not disclose any bony damage attributable to the accident. Notwithstanding the pain and discomfort he was suffering, the plaintiff returned to work after a couple of days but was never again able for the full range of his pre-accident activities. In 1992 he had been head-hunted by a man called Power who was the prime mover in a company named Armada Limited. It owned a small bar, night-club and leisure centre in Cork city which was going downhill. It was decided to re-build and enlarge the business, including the range of its activities. It appears that the plaintiff's substantial reputation in that area encouraged Mr. Power to recruit him as general manager of the new enterprise. It seems that he made a wise choice. I accept the plaintiff's evidence that he played a major role in re-structuring the new business and turning it into a successful enlarged operation. Part of the plaintiff's pre-accident work had included assisting in the re-stocking of the ground floor bar and the night-club and disco above it with crates of beer and other drinks. He found that heavy lifting aggravated his injuries and in time he had to desist from such work.

4. It transpired that the primary damage sustained by the plaintiff was a soft tissue whip-lash injury in the area of the cervical spine with symptoms often encountered in such cases, included pain in the general area of the neck and radiating down the right arm. He suffered substantial pain on a continuing basis and some restriction of neck movements which originally were intermittent. The plaintiff soldiered on and continued at work in the hope that in time he would make a full recovery. However, this did not eventuate. The pain continued and from in or about seven months after the accident his situation as to the cervical spine became steadily worse. He also developed severe headaches which caused nausea and vomiting from time to time. These continued until the end of 1995. He attended Dr. Haugh regularly who prescribed a range of analgesics and related medication. He also prescribed a cervical collar which was of no assistance. In November, 1993 the G.P. sent the plaintiff to Dr. Patrick Kinsella, a rheumatologist. Over the years since then he has had courses of psychotherapy, acupuncture, hydrotherapy, reflexology and intermittent pain killing injections. Some of these have brought about temporary relief but none has achieved any lasting improvement. He continues to attend Dr. Haugh and has also been in the care of Dr. Noel Callaghan, neurologist, Mr. Marks, orthopaedic surgeon and Dr. Roiseen MacSullivan, a specialist in pain management. The latter is now primarily responsible for orchestrating the plaintiff's on-going treatment.

5. In addition to continuing pain and disablement arising out of his neck injury, the plaintiff has also suffered two other disabilities arising out of the accident in June, 1993. The head injury which he sustained has given rise to a high tone hearing loss which is worse in the right ear than the left. He also suffers from tinnitus which has been continuous for the past two years. Mr. Cyril Kennefick, an E.N.T. surgeon, has confirmed these findings by way of audiogram and he believes that they are a probable consequence of the head injury sustained in the crash. His evidence is not in controversy.

6. The other disability is psychiatric in nature. In April, 1997 Dr. Haugh sent the plaintiff to Dr. David Broderick, consultant psychiatrist, for treatment for depression. He stated in evidence that the plaintiff told him he feels that he is deteriorating physically and mentally and he is anxious, depressed and irritable with his family. He has insomnia and a poor appetite and believes that his future is very bleak indeed. Dr. Broderick has had four treatment sessions with the plaintiff which are on-going. He found that his patient is trying to do the best he can but that continuing pain over the years and all that that entails is causing him to deteriorate emotionally. Dr. Broderick's opinion is that the plaintiff suffers from severe post-traumatic stress disorder with serious depressive episodes. These are aggravated by distressing side affects from the wide range of medications which the plaintiff is obliged to take daily - 29 tablets in all which include morphine derivatives. Some affect the stomach or the appetite or cause severe constipation which require use of suppositories from time to time. Dr. Broderick also referred to changes which have occurred in the plaintiff's voice which has become high-pitched under stress - this was apparent in course of his evidence - the latter condition was stated to be a product of severe anxiety. Dr. Broderick expressed what he described as grave reservations about whether the plaintiff could after training engage in computer telemarketing on a commercial basis having regard to his deteriorating situation. He does not believe that the plaintiff will ever be gainfully employed in the future. However, the development of computer skills would be helpful for him. He will require continuing psychiatric treatment on the basis of four sessions a year at a cost of £50/£60 each.

7. As to the cause of the depression; Dr. Broderick expressed the view in cross-examination that the most important aspect was that the plaintiff suffered a severe neck injury in the accident. He tried to get over it without success and the depression set it when eventually it appeared to him that he would not recover and would continue to suffer serious pain indefinitely. Dr. Broderick does not accept that the plaintiff's pain was caused by psychiatric problems and he sees a clear connection between it and the soft tissue injury to his cervical spine. However, he does agree that the resolution of the litigation would be of some assistance and a degree of improvement could be anticipated in that regard but, it seems, it probably would not reverse the downward trend in his condition.

8. The plaintiff continued at work as best he could despite increasing difficulties until September, 1994. Because he was unable to perform his pre-accident range of duties as general manager, another manager was employed by the company to take over the running of the enlarged bar and restaurant but notionally under him as general manager. It appears that this was not a success and differences arose between him and the manager. In August of that year the plaintiff's situation had become acute. He and his family went on holiday to Rosslare. This was a disaster for all of them. The pain relating to the whiplash injury became grievous to the extent that he could not participate in holiday activities and was unable to sleep at night because of severe pain and this in turn led to exhaustion. He returned to work after the holidays but came to the conclusion then that probably he would not be able to continue for very much longer. He found that he was exhausted each weekend and had to remain in bed. It appears that his deteriorating condition was apparent also to Mr. Power who told him that he did not think that he was up to the job. He was demoted from his post as general manager. This caused the plaintiff to leave and to bring successful proceedings for unlawful constructive dismissal. He then also learned that his employer had been making false income tax and P.R.S.I. returns which complicated his situation still further. He has been unable to work since then but has twice been head-hunted for alternative management jobs in the entertainment industry in Cork. He was unable to take up either of them but has embarked on a F.A.S. computer training course at home supervised by occasional visits from instructors. He has completed two modules of a three module commercial course with difficulty. He is able to work for short periods only and is obliged to rest frequently. He cannot maintain a regular time schedule but tries to work for an hour or two between rest periods if he can. His best performance is about three hours a day in total. A comparatively recent manifestation of deterioration is that his hands are subject to periods of coldness and reduction in feeling. His fingers turn inwards and lose full sensation. He is obliged to wear gloves in the house when that happens which is generally in winter weather. He has become awkward and is liable to burn himself if he attempts simple cooking. He also has difficulty dressing himself and taking a shower. He requires assistance from his wife and in periods of severe pain, which may last for two weeks or more, he is unable to take a shower. The end result is that he is no longer able to care for himself. On an average day he gets up at 7.00 a.m. He has breakfast with his family; drives his wife to work and his children to school. He can drive for short distances only and requires to use wing-mirrors instead of turning round. He is back in bed by 8.30 a.m. and gets up again at noon. There are cups of tablets laid out by his wife which he takes at intervals during the day. He tries to get in two and a half to three hours computer work with rest periods between. He collects his children from school by car. He has a period in bed in mid-afternoon and gets up for dinner at 6.00 p.m. He goes to bed again at 10.15 p.m. He cannot attend mass on Sunday as he has difficulty with crowds. He is unable to assist his wife with housework or gardening. He feels depressed and irritable and believes that he is deteriorating. He describes that his relationship with his wife and children have changed drastically. It seems that there is little happiness about the home now. The plaintiff stated that he has not had a happy day since the accident. His neck muscles now go into spasm with pain from time to time. This has been observed by Dr. MacSullivan while he has been an in-patient in the Mater Hospital under her care.

9. Mrs. Brady, the plaintiff's wife, gave evidence corroborative of her husband. One observation of hers underlined the sadness of his situation. She and the children cannot hug him or have close physical contact as it causes pain and distress. Mr. Seamus O'Sullivan, a senior recruitment consultant with F.A.S., gave evidence corroborative of the plaintiff's business capacity. He has known him professionally since 1979 and had dealings with him two or three times a year when he was recruiting staff for his employers. He found him to be honest, trustworthy, very efficient, decisive and capable in managing people. He was enthusiastic, tactful and calm with a good personality and self-confidence. He had a highly motivated team approach and great determination to succeed - a good team player. He worked well under pressure and was highly respected by his staff. Mr. O'Connell met the plaintiff in February of this year at home for the purpose of a vocational report in connection with his application to join the F.A.S. home computer commercial course. He was appalled by what he found. The plaintiff was wearing gloves, though the temperature in the house was normal. His concentration span was short. He had a high-pitched voice and in general was a completely different person to what he had been pre-accident. The witness believes that the plaintiff is unfit even for light work presently but that if he were uninjured he would not have any difficulty in getting a good job as a general manager in a wide range of commercial activities, particularly in the hotel and entertainment business. In an expanding market as at present there are such jobs available and it is quite difficult to fill them. He believes that the plaintiff, if fit, would earn £30,000-£40,000 per annum. Mr. John Dwyer, a substantial electrical wholesaler in Cork, who knew the plaintiff in the electrical trade in the 70's and 80's expressed similar views. He believes that there would be a strong demand for the plaintiff, if fit, in the electrical industry and that he could earn £23,000 per annum gross.

10. I accept the reliability of all of the foregoing evidence. I was particularly impressed by the plaintiff's testimony and by his demeanour as a witness.

11. There was a large volume of specialist and general medical testimony at the trial, some of which I have referred to already. It is not in dispute that the plaintiff has suffered deafness and tinnitus relating to the head injury sustained in the accident. It is also accepted that he suffers from severe depression, though there was some element of conflict as to its cause. No psychiatric evidence was called on behalf of the defendants. As to the plaintiff's on-going symptoms of pain; the genuineness of his complaints in that regard is not in dispute but there is some difference of opinion as to possible causation.

12. The primary professional evidence about pain led on behalf of the plaintiff was that of Dr. Roiseen MacSullivan. She is a distinguished specialist in pain management who has substantial international qualifications in that area. She was elected to the Board of the Irish Faculty of Anaesthetists in 1990 and is presently Vice Dean of the Faculty. In 1986 she set up a pain management unit in the Mater Hospital, Dublin. Later it was expanded into a formal clinic at the hospital which now deals with 2,000 patients per annum. 60% of these relate to injuries sustained in traffic accidents.

13. The plaintiff was referred to Dr. MacSullivan by Dr. Noel Callaghan, neurologist, in October, 1995. He remains under her care. Apart from out-patient consultations, he has had four periods of in-patient treatment at the Mater Private Hospital. Dr. MacSullivan has seen the plaintiff on 55 occasions to date, including some examinations of in or about an hour duration. She has found him to be a typical case of non-resolution of cervical whiplash symptoms and the most serious she has encountered so far in a wide experience of such cases. She has diagnosed him as suffering from myofascial pain syndrome. This is described in literature referred to by Dr. MacSullivan in evidence as constituting "a large group of muscle disorders characterised by the presence of hypersensitive points, called trigger points, within one or more muscles and/or the investing connective tissue together with a syndrome of pain, muscle spasm, tenderness, stiffness, limitation of motion, weakness and occasionally autonomic dysfunction". Dr. MacSullivan explained that in most soft tissue injuries involving muscles, the symptoms clear up within two years from the date of accident, but in a small minority of cases blood and extra cellular material are not reabsorbed after damage to the soft tissue. She subscribes to the view expressed by the learned authors in the foregoing work that "the resulting adhesions limit the gliding action of muscles resulting in tension, spasm and further development of irritants". The plaintiff has always indicated the same trigger points of pain which are consistent with the type of soft tissue cervical injury he sustained in the accident - thus establishing a positive causal connection between them. She did not accept that the plaintiff's pain syndrome was psychological and not physical in nature. Her opinion is that the primary cause of the plaintiff's problem in relation to pain relates to the soft tissue injury he sustained in the accident. She accepts that there may be an associated subsidiary psychological problem but the plaintiff's primary difficulty is not psychological in nature.

14. In her final medical report dated 10th April, 1998, Dr. MacSullivan summarised her assessment of the plaintiff's present situation as follows:-

15. Mr. Brady is known to have pre-accident hypertension which was moderately well controlled on anti-hypertensive medication and I have not altered this.

16. It is close to five years since Mr. Brady was involved in a serious road traffic accident and although he sustained no serious bony or neurological injury following the immediate impact, he has developed a chronic pain syndrome with significant soft tissue trauma.

17. It is outside my field of expertise to comment on his E.N.T. and voice problems. However, I feel he has developed a chronic pain disability as a result of on-going pain and discomfort secondary to the accident.

18. I feel it is unlikely that he will ever return to his pre-accident employment which involved a significant level of fitness and a fit physique. I feel Mr. Brady must re-train in a limited capacity and will have a limited ability to embark on a full-time occupation even in a very sedentary way. He has maximised his own involvement and efforts in rehabilitating himself but is significantly disabled and finds his progress is very slow as a result of the symptoms.

19. Unfortunately at this point in time this condition is recognised as a complication of a soft tissue trauma and there is no specific treatments/management or indeed medications on the market for the treatment of same. We would hope that in the future, future research will help us in this regard and will enable us to maybe prescribe specific treatments that will help Mr. Brady to rehabilitate himself to a more reasonable level of fitness although at this point in time that is merely a pious aspiration."

20. Dr. MacSullivan added in course of her evidence that she did not think the plaintiff will ever get better. She does not regard him as being fit for any physical work. He may be capable of limited employment of a flexible nature - preferably a job which he can do at home. His time management needs to be flexible and he is not capable of a regular normal days work nor reliability in work, e.g., continuous attendance or performance. His condition is deteriorating and he will require future treatment and on-going medical attention. This will involve, inter alia, twice yearly admission to hospital as an in-patient for five to seven days per admission. The present maintenance cost in the Mater Private Hospital is £300 per day. Dr. MacSullivan's fees would amount to £400 per annum. The plaintiff would also require an M.R.I. scan every three years at a present cost of £600 each.

21. Dr. Noel Callaghan, the plaintiff's neurologist, gave evidence corroborative of Dr. MacSullivan. He described the plaintiff as being a well motivated person who is very anxious to work again. He stated that he and Dr. MacSullivan share the same view that the plaintiff has a chronic soft tissue injury arising out of the traffic accident in June, 1993. Dr. Callaghan considers that at best the plaintiff may be able for light sedentary work in a sheltered environment. In cross-examination he reiterated that the plaintiff's pain relates to the accident and that the consistency of his symptoms rules out an independent psychological cause.

22. Dr. Patrick Kinsella, the plaintiff's rheumatologist, stated in evidence that he agreed absolutely with the opinion formed by Dr. MacSullivan that the plaintiff was suffering from myofascial syndrome. He believes that the plaintiff's long term outlook is uncertain but noted that he is anxious to get back to some form of work. Dr. Kinsella also noted that the plaintiff's symptoms had deteriorated when seen in December 1997.

23. Two doctors gave evidence on behalf of the defendants. Dr. Gerald Mulcahy is a general practitioner and in the end his evidence was broadly in accord with that expressed by the plaintiff's doctors.

24. The defendants' other medical witness was Dr. Roderick Galvin, a consultant neurologist, who saw the plaintiff three times in all, i.e., in 1995, 1996 and in April of this year. He inclined to the view that the plaintiff's pain syndrome was likely to be psychological rather than physical in nature. However, he did not hold that Dr. MacSullivan, Dr. Callaghan and Dr. Kinsella were wrong in their diagnosis and he conceded that the plaintiff's consistent identification of pain with the relevant trigger points over the years was difficult to explain in the context of psychological causation. In the end he conceded that the psychological element in the plaintiff's case was allied to a history of a soft tissue whiplash injury.

25. I have no hesitation in accepting the evidence of Dr. MacSullivan supported by Dr. Callaghan and Dr. Kinsella that the plaintiff is suffering from a serious chronic pain syndrome relating to the whiplash injury sustained by him in the traffic accident in June, 1993. I also accept that the probabilities are that he will not recover from his present chronic state of continuous pain and that his condition is likely to deteriorate. He has also suffered a significant degree of permanent hearing loss with associated tinnitus and it is likely that he will continue to suffer a significant degree of depression indefinitely. In addition the fabric of the plaintiff's family life has been irretrievably damaged to a substantial degree.

26. Ms. Fiona Barry, occupational therapist, also gave evidence about the need for adjusting the plaintiff's house to provide for a bedroom and bathroom downstairs and also a small hydrotherapy pool for regular exercise in warm water.

27. As to the plaintiff's restricted working capacity; she stated that if he were to engage in telemarketing from home he would need further specialised training - probably another year - before he could embark on that activity. She estimates that if the plaintiff were capable of engaging in telemarketing on the basis of a half day for five days a week his net earnings would be approximately £200 per week. Care assistance in the home costs an hourly rate of £5. Such a person might have a dual function, i.e., as a helper in the home to prepare a mid-day meal for the plaintiff when his wife is out working and as an assistant in connection with his computer activity. I am satisfied that he requires a carer/assistant for four hours a day, five days a week. 20 hours at £5 per hour - £100 per week. It is also reasonable that in the interest of alleviating pain he should have the benefit of a ground floor bedroom/bathroom. Ms. Barry also gave evidence about other prospective expenses which are referred to hereunder.

28. The evidence establishes on the balance of probabilities that by reason of injuries sustained in the accident of 27th June, 1993, the plaintiff is seriously disabled physically and emotionally and he will so remain for the rest of his life. His situation differs in one crucial respect from most others who have suffered major permanent physical disablement of a catastrophic kind resulting from trauma. Although he continues to have a substantial degree of mobility, he suffers a significant level of continuous pain with a constant threat of aggravation thereof on movement. Every minute of every day is clouded by pain from which in all probability he will never escape and his life is dominated by it. That is a frightening dimension of suffering which it appears is rarely encountered. Its effect in practical terms is to destroy the plaintiff's capacity for enjoyment of life and to create an on-going condition of depression. It has grievously impaired permanently his relationships with his wife and children. His misery is further compounded by tinnitus and some deafness both of which emanate from a head injury sustained in the accident.

29. In the light of the foregoing I assess general damages for pain, suffering, disablement and loss of enjoyment of life as follows:-

30. From 27th June 1993 to date £80,000

31. From now for the rest of life £200,000

32. In that regard I have taken into account the judgment of the Supreme Court in Synnott -v- Quinnsworth and subsequent authorities which amplify the principle therein laid down.

33. Although there is substantial medical evidence, notably Dr. Broderick's, that the plaintiff is unlikely ever to be fit for gainful employment or, if he does so succeed, that he will remain fit for work for long having regard to his deteriorating condition, I am mindful of the fact that the plaintiff has demonstrated and continues to show courage and determination in facing up to the grievous problems which arise out of his pain syndrome and other disabilities. I apprehend that he is likely to succeed in training himself for a career in telemarketing or similar computer activity. However, at best he is unlikely to manage more than a half days work, five days a week. He may embark on such a business enterprise in partnership with his wife and/or with some assistance from a trained minder. He is unlikely to exceed a net earning capacity of £200 per week. I accept Mr. Seamus O'Sullivan's evidence that if uninjured the plaintiff's net annual earnings presently probably would be not less than £30,000. In short, his prospective net annual loss is £20,000. I assess the capital value thereof from 1st September, 1999 to age 65 having due regard to the principles in Reddy -v- Bates, at £200,000. The plaintiff is entitled to £30,000 net loss of income during a period of further training from now until 1st September, 1999.

34. The capital value of various other items are as follows:-

35. Continuing annual hospitalisation; doctors' fees and the annualised cost of the three yearly M.R.I. scans and medication (£32 per month) £40,907.

36. Hydrotherapy pool £34,842.

37. Office equipment £13,937.

38. Carer/Assistant £90,500.

39. Special damages agreed £19,652.

40. Past loss of earnings net £35,136.

41. House modifications £27,500.

42. The grand total of damages amounts to the sum of £759,804 and the plaintiff is entitled to judgment for that amount.