High Court of Ireland Decisions

1. The applicant is now a retired Garda Síochána having served in the Gardaí for thirty years. Unfortunately in the month in which he retired he was assaulted while helping to escort a prisoner to his cell in Cork District Court. He was beaten on the shin with handcuffs that were taken from another garda and used to flail the applicant on the left shin. In the scuffle - he does not know exactly how - his right foot was injured and he suffered a fracture to the second right toe. This required a splint and he was out of work for one month from the date of the incident on the 3rd of October 1995 to the 1st of November 1995.

2. Sometime later - perhaps months - his daughter, a surgical registrar, noted from his gait that he had difficulty walking and referred him to Mr James Coville, who, in turn, found impaired dorsiflexion or ankle drop which he suspected had been caused by an injury to a nerve in the back. More particularly was diagnosed as a nerve compression of the L5 root due to fibrous tissue and residual disc herniation. This was causing weakness in the muscle group, and inability to dorsiflex together with some loss of sensation of the anterior aspect of his foot. It was a permanent disability and would not improve with surgery.

3. He was subsequently seen by Mr James Coville on the 6th of June 1996. Mr Coville noted that the applicant had back trouble at one stage and that a problem with his right knee which required a medial meniscectomy. He was found to have a fracture of the proximal interphalangal joint of the second toe, involving the articular surface. He was treated conservatively. Mr Coville noted the applicant’s complaint that his right foot was numb, that he had poor control over his foot but didn’t have any pain and his sleep was undisturbed. A nerve conduction study and EMG was arranged and showed evidence of damage to the right L4-5/S1 nerve roots. The damage apparently was proximal to the intervention of the biceps femoris muscle. This would be in keeping with the patient having previous degenerative disc disease and requiring treatment.

4. Mr Coville referred the patient to Mr John Byrne.

5. Mr Byrne saw the applicant on the 4th of October 1996 over one year after the incident. He found that he had a very significant dropped foot, weakness in his right leg, all associated with L5 nerve root compression. His MRI scan confirmed a prolapsed inter vertebral disc at that level. He had surgery on the 31st of October 1996 his L5 nerve root was compressed significantly with fibrous tissue and residual disc herniation. His S1 nerve root was normal. The L5 nerve root was decompressed and a partial disectomy was performed. By December 1996 his leg power improved somewhat but there was still significant weakness in his leg and he had weakness of aversion of his foot. When he was seen again in June 1997 he had no back or leg pain but still had a significant weakness despite surgery in the muscle groups of the anterior compartment of his right leg. This causes him to trip and drag his foot. He has also some loss and sensation over the anterior aspect of his foot which is permanent and unlikely to change.

6. In relation to the area of his spine which was injured, Mr Byrne continued,

7. Mr Coville’s second report of the 15th of October 1999, four years after the incident he complained that he had problems with the second toe which catches on things and causes some pain. He also has problems with at lot of cramps in his leg and he states his right leg is wasted. The sensation in the back of his foot and right ankle remains altered.

8. On examination the only change, if any, was some more wasting of the calf muscles below the knee. Mr Coville was of the opinion that the patient’s situation remained unchanged as far as his foot is concerned. He has a still second toe which gets in the way when he is doing certain activities. However the more significant problem is that in the lumbar spine.

9. Mr Byrne’s final report of the 20th of August 1999 made to the applicant’s solicitors stated that he could not say definitely when the applicant sustained a prolapsed disc that caused his right leg drop foot. The report states:-

10. The applicant stated in evidence that, during the thirty years of service, he had never made an application under the Garda Compensation Act. This was despite having been beaten up at a soccer match some ten years ago and having some back problems fourteen years ago occasioned by a fall in a mini bus where he was struck in the back with the edge of the tubular steel side seating which resulted in sick leave for eight weeks.

11. The applicant says he did not complain to Dr Coville about his back. Mr Byrne noted no back or leg pain in June 1997 (see report dated the 25th of November 1998). The applicant, in his evidence, says that he had no problem with the back but was in constant discomfort with his ankle and leg due to numbness.

12. The Garda Surgeon who saw the applicant on the 27th of November 2000 noted that the applicant was a highly motivated man and had adjusted to his situation. He noted the obvious wasting of the muscles of the anterior leg and the loss of sensation. The applicant walks in a slightly awkward fashion but has adjusted well to his situation.

13. The Garda Surgeon noted the back injury many years previously.

14. The applicant has made light of his injuries. The original injuries, to the left shin, are clearly unrelated to the injury to the right toe which were fractured and required a splint. The loss of sensation in the dorsal aspect of his right foot with resultant weakness of dorsiflexion of his right foot would seem to have resulted from the compression of the L5 nerve root, resulting in permanent nerve damage. Despite the partial disectomy there remains a significant weakness in his leg. While Mr Byrne cannot say definitely when the applicant sustained the prolapsed disc that caused his right drop foot he says it is possible that it occurred at the time of the accident in question.

15. Mr Byrne does not refer to any previous back injury. His opinion in the report of the 25th of November 1998 refers to the applicant injuring his back and sustaining a prolapsed disc which compressed the L5 nerve root which caused the weakness in his right leg and the loss of sensation over the anterior aspect of his foot.

16. The Court has to consider the following two factors, that of causation and of pain and suffering.

17. The injury to the foot did not cause the compression of the nerve in the disc. That was caused by an injury to the back which could have occurred in a previous incidence and could have been exacerbated by the incident in Cork District Court cell. Mr Byrne states that it is possible that it occurred at the time of that incident.

18. I was impressed with the evidence given by the applicant. He has problems with his second right hand toe. He has problems with cramps and wasting of his right leg muscles. He does not complain of pain in his back and is careful not to put himself into a position where he could have problems.

19. It seems to me that his resilient personality and, indeed, his employment since he retired have stood to him.

20. Any award has to take into account the above two factors and, of course, the fact that the applicant is left with a permanent disability which will not improve with further surgery. Causation remains only at the level of possibility and for this reason the Court assesses damages in the sum of £25,000.