High Court of Ireland Decisions

1. It is not disputed that the Plaintiff in this case, on the 3rd of October 1996 was accidentally kicked in the area of her coccyx while participating in a swimming lesson at Glenalbyn Swimming Pool. She stated in evidence that she felt an immediate severe pain in this zone of her body which made her gasp. A fellow pupil assisted her in climbing the ladder out of the pool. Ice was applied by a member of the Defendants staff, I assume to reduce any swelling, and this induced a sensation of numbness in the affected area. She told me that she felt very embarrassed.

2. On the same day she consulted her General Medical Practitioner, Dr. Patrick Feeney who recorded that on presentation the Plaintiff complained of pain in the coccygeal and sacro-iliac zones. The Plaintiff states that she only ever had pain in the right sacro-iliac zone. Dr. Feeney ascertained that she was tender on palpation in the coccyx zone. X-rays subsequently taken showed no evidence of bony injury to her pelvis, sacrum or coccyx. Dr. Feeney was of the opinion that a referral to an orthopaedic surgeon was unnecessary. He recommended to the Plaintiff that she adhere to good posture and he prescribed anti-inflammatory medication. While not envisaging any long term sequelae, Dr. Feeney noted that coccygeal pain can often be slow to resolve and that it was impossible to give an exact prognosis in this regard.

3. Mrs. Whelan considered that her condition was disimporving. She said that she was unable to get through her household chores as well as she could prior to the 3rd of October 1996. She said that she was never without some pain at the base of her spine and in the right hip area. She had, she said, a lot of discomfort at night and had difficulty in sleeping. She took, “Solphadine”, a non prescription analgesic with no anti-inflammatory activity, to relieve the pain when, “the pain was particularly bad”.

4. Some time before the 5th of November 1996 she decided to consult a firm of Solicitors. This is her legal right and in my opinion she cannot justly be censured in any way for so doing. This firm of Solicitors sent her to Mr. Fergal McGoldrick, a Consultant Orthopaedic Surgeon.

5. On examination of the Plaintiff on the 17th of December 1996, - about 11 weeks after the incident in the swimming pool, - Mr. McGoldrick found that the Plaintiff was tender to palpation over her right sacro-iliac joint and adjacent secrum, and that spinal extension was sore particularly with reference to her right sacro-iliac region. Mr. McGoldrick concluded that the Plaintiff had low to medium grade discomfort probably due to soft tissue injury to her gluteal muscle and sacro-iliac areas. He recommended physiotherapy and aqua aerobic exercises.

6. He saw the Plaintiff again on the 5th of August 1997. In the meanwhile she had a number of physiotherapy sessions, - her recollection in evidence was five or six, - and had undertaken aqua aerobics. She told me in evidence that while she considered that the pool exercise aggravated her condition the physiotherapy was of benefit and her condition had improved. However, she said that she was not the same as she was prior to the accident.

7. Her complaint to Mr. McGoldrick on the 5th of August 1997, - or ten months after the incident in the swimming pool, - was of discomfort radiating into her buttock and down her lateral thigh. Mr. McGoldrick obviously considered this complaint to be genuine and formed the distinct impression that it was due to iliotibial band irritation which physiotherapy would certainly help. While the evidence is not altogether clear I gather that she had a further 14 sessions of physiotherapy.

8. A Bone Scan was carried out in March 1997 which disclosed no evidence of fracture or disease. An MRI Scan was carried out on the 18th of May 1999 which showed early degeneration of the L .2/3 dist and facet degeneration of the L. 4/5., and L.5/S.1., processes, which in the opinion of Mr. Robert McQuillan, FRCSed., “have no relationship to her symptoms”. She was seen by Mr. Robert McQuillan on behalf of the Defendants on the 6th of October 1998. She complained to him of low grade discomfort in all her right leg from the lateral and posterior aspects of the hip to the medial aspect of the right thigh. She said that symptoms were aggravated by sitting for more than half an hour and by prolonged walking. She stated that she was unable to walk fast since the incident in the swimming pool.

9. On examination Mr. McQuillan found tenderness over the right sacro-iliac joint. In view of the normal results from the radiography and the bone scan he felt somewhat surprised that the Plaintiff should have such symptoms on such a protracted basis but he did accept that sometimes sacro-iliac symptoms could continue for quite a protracted period. In his opinion the Plaintiffs symptoms at two years post the incident were quite minor and should not specifically interfere with her activities. In his opinion, “there certainly would be no long term complications”.

10. The Plaintiff revisited Mr. McGoldrick on the 19th of April 1999 with essentially the same complaints. On examination he found tenderness on palpation over the right sacro-iliac joint and adjacent lumbo-sacral facet. He also found that she was tender over the right gluteal muscle stretching in on to her greater trochanter. He recommended the MRI Scan to which I have already adverted which excluded any neurogenic component to her pain. He considered that her symptoms were consistent with soft tissue injury.

11. She was next seem by Mr. McQuillan and this was on the 16th of October 1999 or at three years and two weeks post the incident. On examination he found tenderness overlying the sacrum right sacro-iliac joint and right ischium and discomfort in the adductor muscle on rotation and abduction of her right hip. Mr. McQuillans’ diagnosis is of chronic pain syndrome with no physical explanation the duration of which was therefore difficult to determine.

12. Finally, the Plaintiff was seen by Mr. McGoldrick on the 10th of May 2000. The Plaintiff stated in evidence that she was referred by Mr. McGoldrick to Dr. O’Keeffe a specialist in pain management. I consider it essential to set out the full text of Mr. McGoldrick’s report of this consultation which text is dated the 12th of May 2000 and is as follows:-

13. Mrs. Whelan told me she attended Mr. O’Keeffe and was about to undergo diagnostic facet block injection but became distressed at the thought and was reluctant to proceed. She has not followed through for any further treatment. She continues to complain of right buttock discomfort radiating into her right leg.

14. In reply to Mr. Nugent in cross-examination the Plaintiff claimed that Mr. O’Keeffe had told her that the purpose of the injection was to relieve her pain, - that it was an injection for pain. She had earlier told Mr. Fitzgerald that she did not want these injections. I greatly doubt if Mr. O’Keeffe and in all probability Mr. McGoldrick, especially in these litigious times, left the Plaintiff in any doubt as to the purpose of the diagnostic facet block injection. If she believed that the purpose of the injections,- and she did use the plural in her examination in chief, - was to relieve pain, then I find her explanation, or rather her lack of explanation, as to why she would not accept such rapid, minimally intrusive and non perilous treatment very unconvincing. This attitude may be contrasted with her answer to Mr. Nugent when he put to her that, “she had compensation on her mind from the very start”, and she responded, “why should I be uncomfortable for the rest of my life”.

15. The Plaintiff asserted that there had been no change in her symptoms over the past year. She said that on average she takes one or two “Solphadine” tablets each week. She claims that she cannot sit on a firm surface, or drive or stand for long, - which she did not define, - periods. She claims that when she walks she does not lift her right leg properly and stubs her toes on the ground. She says that carrying things up the stairs is difficult and she avoids it. She says that she cannot walk as quickly as she did prior to the 3rd of October 1996. These are essentially the same complaints she made to Mr. McQuillan on the 6th of October 1998. She told me that prior to the incident in the swimming pool she and her husband were keen set dancers and that now she has to dance more slowly, tires easily and has to sit down. I asked her to describe the pain which she claims she suffers. She said that it was like a drag at its easiest and like someone pulling the leg out of her at its worst. Mrs. Whelan is 55 years of age with three children aged 31, 27 and 25 and two grandchildren aged 2½ years and 8 months.

16. On the basis of the foregoing in my judgment the Plaintiff suffered a moderate to mild soft tissue injury as a result of the most unfortunate incident in the swimming pool. This resulted in low to medium grade pain and discomfort in the right sacro-iliac and coccygeal zones of her body. In my judgment this pain and discomfort diminished with time until this pain and discomfort had become quite minor and was not significantly interfering with her day to day activities. I accept on the balance of probability that there were intermittent episodes of increased pain and discomfort from time to time.

17. I have no doubt that if the Plaintiff was suffering any significant pain or discomfort she would not have rejected what she in her evidence said she believed to be a course of pain relieving injections. One is tempted to make a comparison with a case of an aching tooth. I do not believe that the Plaintiff was deliberately exaggerating her symptoms. However in the absence of any physical evidence or explanation for the continuance of these symptoms, and having regard to the total absence of any medical treatment since October 1996 and any physiotherapy or other paramedical treatment since autumn 1998, I must conclude that there is now and has been since at the latest October 1998 a very large subjective element involved in the Plaintiff’s complaints. I believe that the conclusion of these proceedings will unfocus the Plaintiff’s attention from this most unfortunate incident in her life with considerable benefit to her well being both physically and mentally.

18. I do not accept that the Plaintiff now has or will have in the future any significant pain or discomfort associated with the incident in the swimming pool at Glenalbyn on the 3rd of October 1996. Accordingly, I assess general damages in the sum of £10,000. I was informed that special damage has been agreed in the sum of £1,394. The Plaintiff is entitled to a decree in the sum of £11,394 with costs appropriate to such a decree and in the exercise of my discretion I do not made an Order under Section 14 subsection 5 of the Courts Act 1991.