High Court of Ireland Decisions

1. This matter comes before me pursuant to the Order of the Supreme Court made on the 20th of May 1999, whereby the Supreme Court allowed the appeal of the Plaintiff against the Judgment and Order of O’Donovan J given and made on the 27th day of March 1998 and in lieu thereof directed that the matter be remitted to the High Court for a retrial of all the various issues related to damages (excluding the issue of liability).

2. In the proceedings the Plaintiff seeks damages for personnel injuries which she suffered as a result as a fall in the Defendant’s grocery shop at Coburg Street, in the City of Cork, on the 9th of March 1993. It was the Plaintiff’s case in the previous trial before O’Donovan J, that this fall was caused by the negligence of the Defendant, and the Plaintiff was successful on that issue and that finding was not appealed by the Defendant.

3. Thus my task in the trial before me was merely to assess such damages as the Plaintiff was entitled to arising from the fall in question. The issue of damages was further truncated by the concession of the Defendant that a prolapsed thoracic disc which the Plaintiff suffered was caused by the fall a concession properly made in the light of the fact that the finding of O’Donovan J in this regard was not appealed.

4. The single issue which emerged in the trial was whether or not the Plaintiff’s Multiple Sclerosis (hereinafter referred to as MS) was aggravated or exacerbated by the fall. This broke down into two sub-issues, namely did the prolapsed thoracic disc lead to an aggravation of the MS and/or did the surgery carried out in January of 1994, to relieve cord compression caused by the thoracic disc, further aggravate the Plaintiff’s MS.

5. The issues thus raised centre around the question of whether or not trauma and in particular, trauma to the central nervous system can aggravated Multiple Sclerosis and specifically whether in the Plaintiff’s case, this did occur.

6. Before delving into these issues, the Plaintiff’s health background needs to be set out. Apart from the precise status of the Plaintiff’s health between April of 1992 and March of 1993, there was little or no controversy as to the essential events in the Plaintiff’s health.

7. The Plaintiff was born on the 27th of December 1955. She married in 1980 and had three children. She gave up work in or about 1982, on the birth of her eldest son and thereafter she did not work outside the home. Until 1992/1993 she was a fit active lady, who enjoyed gardening, swimming and long walks and was actively involved in her local community in Blarney, in a variety of different pursuits.

8. The history of her ill health begins in March/April of 1992. At that time the Plaintiff attended her GP Doctor Cotter with a number of complaints. Doctor Cotter referred her to Doctor Callaghan a consultant neurologist, who saw her in early April of 1992. At this time the Plaintiff was complaining of unpleasant sensations in her back, in her thighs on both sides, of a cold sensation her lower limbs on both sides and a sensation of weakness in her left lower limb. Doctor Callaghan carried out a full neurological examination and found her an extremely difficult case to evaluate. At that time he thought it was unlikely that she had demyelinating disease, and he felt that her symptoms were of a muscular type aggravated by anxiety. Because the Plaintiff was anxious to have her symptoms clarified, Doctor Callaghan admitted her to hospital for investigation.

9. On the 13th of April 1992 the Plaintiff was admitted to Cork Regional Hospital and on admission she was examined by a Doctor Beausang, who was an intern at the time and was doing his two months of neurology. Doctor Beausang took a detailed history from the Plaintiff and carried out an extensive examination of her and his notes of the history and of the examination extend over four pages. In the history that he took from her, he noted the following:-

10. He also noted the following :

11. Doctor Beausang carried out a detailed neurological examination and in a diagram he illustrates areas of diminished sensation, these being on the outer side of the right thigh and in both limbs below the knee. On an examination of the movements of her lumbar sacral spine, he found some diminution in extension and some diminution in slight lateral flexion to the left. He also found the following:

12. He carried out a very full physical examination of the Plaintiff and apart from the forgoing found no other abnormality.

13. Thus as between the examination carried out by Doctor Callaghan a few days earlier and that carried out by Doctor Beausang on the 13th of April 1992, Doctor Beausang noted in the history which he took a complaint of “dragging” of the left leg, and “gait unsteady on left”, and “supsective weakness of left upper limb”, whereas in this regard Doctor Callaghan had noted a complaint of “weakness of the left lower limb” . Doctor Beausang also found diminished sensation to pin prick in both limbs particularly below the knee, whereas Doctor Callaghan could not detect any sensory loss in the lower limbs. And finally Doctor Beuasang had found some restriction of movement of the lumber sacral spine, whereas Doctor Callaghan could not detect any restriction of movement in her lumber spine, and Doctor Beausong found the “ plantars equivocal” whereas Doctor Callaghan did not make any such finding.

14. While in hospital the Plaintiff had a range of tests carried out on her including a CT scan of her lumber spine and x-rays of her lumber spine and various biochemical investigations. The results of all of these tests were normal.

15. Doctor Callaghan’s opinion after all of this was that she remained a very difficult case to evaluate and he was of the view that there might have been a significant functional component contributing to the symptoms.

16. While the Plaintiff had been in hospital she had some physiotherapy which involved the application of weights to her legs. Following this her symptoms had disimpproved and she had difficulty in walking. These symptoms did not clear up for about three weeks.

17. At about that time the Plaintiff was discovered to have an ovarian cyst. This was removed in the Mercy Hospital in Cork, soon after Easter of that year. No significance has been attached by any of the experts who gave evidence to this complaint or procedure in the context the of Plaintiff’s MS.

18. Events moved on from here to the Plaintiff’s accident on the 9th of March 1993. In this accident the Plaintiff while leaving the Defendant’s shop, holding a child by one hand and shopping in another hand, slipped and fell backwards. She attended a General Practitioner, a Doctor O’Riordan on the evening of her fall and on the following day the 10th of March, attended Doctor John O’Riordan also a General Practitioner. Doctor John O’Riordan gave evidence. On the 10th of March 1993, the Plaintiff complained to Doctor John O’Riordan of back discomfort, right elbow discomfort and a mild headache. Doctor O’Riordan described her as being very shaken and upset. He did not document any complaint of numbness or hot sensations on this occasion, but he mentioned that she had complained of pins and needles around her back area, rather than lower down. Doctor O’Riordan examined her lower back and found she a full range of movement of her lumber spine. He was unable to find any particular abnormality in her back or lower limbs. He prescribed for her non-steroidal anti-inflammatories and pain killers. He next saw her on the 16th of March 1993. At that stage the Plaintiff was complaining that her headache had got much worse and she had started to complain of weakness, a feeling of numbness and hot sensations in her lower limbs. These were vague in both lower limbs. Doctor O’Riordan examined her back, but could find no mechanical reason for her symptoms. He found bruising of her right elbow from the fall. She complained that over the previous week she had trouble when trying to get out of a chair or when trying to get in and out of a car.

19. At that stage Doctor O’Riordan referred the Plaintiff to Mr. Tony McGuinness, a Consultant Orthopaedic Surgeon in Cork. Doctor O’Riordan did not see the Plaintiff again until the 11th of September 1993.

20. Mr. McGuinness in turn referred the Plaintiff back to Doctor Noel Callaghan and he saw her on the 28th of April 1993. At this time the Plaintiff complained to Doctor Callaghan that she had “ongoing symptoms” , that she had some stiffness in the back, a hot sensation radiating from her trunk into her lower limbs, some pain in the region of her knee joints on both sides. She complained that following her accident she developed some neck pain and pain in her left upper limb radiating into the little and ring fingers of her left hand. The Plaintiff was very worried and anxious about her ongoing symptoms. Doctor Callaghan examined her on this occasion and found no evidence of muscle wasting or weakness or restriction of straight leg testing. The tendon reflexes were all intact. The flexor was plantar response of the left side and there was an equivocal response on the right side. These was no associated sensory loss. While walking there was a slight drag of her right leg. Neurological examination was otherwise within normal limits. Doctor Callaghan found it very difficult to explain the symptoms in the absence of objective neurological findings. The Plaintiff herself was very worried about them and to relieve her anxiety, Doctor Callaghan decided to have MRI scan of her brain and cervical, dorsal, and lumber cords carried out to rule out any form of demyelination. He also arranged a nerve conduction study in relation to a pain in her left arm which he felt was the result of whip lash injury, following the fall.

21. The MRI scan was carried out on the 28th of May 1993 and the report of the scan was in the following terms

22. Doctor Callaghan saw the Plaintiff again on the 8th of June for the purposes of discussing with her the results of the MRI scan.

23. On this occasion the Plaintiff complained on intermittent episodes of weakness in the right lower limb, a stiff sensation and an unpleasant burning type sensation in the lower part of her back and in both lower limbs. She complained of both her lower limbs been stiff. She also complained of some ongoing neck pain and headaches, which had occurred following the fall.

24. Doctor Callaghan examined her and he found on this occasion there was a very definite drag of the right lower limb. There was no objective weakness in the right lower limb, when she was examined lying on a couch. He found reflexes in both lower limbs were very definitely exaggerated, brisker on the right than on the left side and there was an equivocal plantar response on the right side and a flexor plantar response on the left side. He was unable to detect any associated sensory loss in the lower limbs or over the trunk and neurological examination was otherwise normal. He found no restriction of neck movement or pain on neck movement.

25. Doctor Callaghan was of the view that at this stage there was little doubt but that she had a spinal cord lesion, with associated pyramidal track findings in both lower limbs. He defined the problem at that stage as deciding to what extent the pyramidal track findings and symptoms in the lower limbs were related to the demyelinating disease i.e., the MS or to what extent they were related to the disc protrusion pressing on the spinal cord at D 6/7. He was of the view that clarification of this problem was extremely important because if, it was the disc protrusion was causing the problem, it could be helped by surgery. For that reason he referred the Plaintiff to Mr. Charles Marks FRCSI, a Consultant Neurosurgeon, for his opinion.

26. The Plaintiff was admitted to hospital of the purposes for being examined by Mr. Marks. This examination appears to have taken place in the 2nd week of June 1993. Mr. Marks concluded even without the demyelinating lesions, he was unwilling to do a thoracic discectomy because of the Plaintiff’s “soft” symptoms and physical signs. When the Plaintiff had been admitted to Cork Regional Hospital on the 12th of June 1993, the hospital notes for that date reveal that her presenting complaints were by-lateral knee stiffness, a feeling of a “hot band” across her back and down both legs to the knees. She was noted to be fully mobile, to have a slight limp and right leg drag.

27. The Plaintiff was next seen by Doctor O’Riordan on the 11th of September 1993. He noted that there was a marked disimprovement in her this time and that she was quite staggery and needed support walking. The Plaintiff also had urinary problems in that she would have to rush to the toilet. Doctor O’Riordan saw her again on the 20th of September 1993, when he called to her house. He noted that there was further disimprovement and that she was complaining of symptoms in her back area, particularly around the thoracic area and that she had a burning sensation and that she found that her legs were getting weaker. Doctor O’Riordan was of the view that she was quite incapacitated, having two pathologies, namely the thoracic disc and MS, but he advised her not to have surgery but to wait and see. The next time Doctor O’Riordan saw her was the 10th of January 1994.

28. The Plaintiff was next seen by Mr. Marks on the 16th of December 1993. Mr. Marks was of the view at this stage, that there have been a definite deterioration in leg function since he had last seen her. He found her walking distance had decreased and her legs were more clumsy and more fatigueable, the right leg generally being worse than the left. He found her to have increasing numbness in the lower trunk over the previous three months, subjectively. He noted that when she was out walking, she generally she had to push a buggy or a shopping trolley otherwise she was afraid of falling. Mr. Marks examination revealed that tone in the legs remained normal, that the right plantar was now clinically extensor, the left plantar being probably flexor. He found no gross abnormality of power. He found her to have impaired pin prick sensation only between about D8 and D10 on the right side. He noted that although she had MS, that she also a had significant thoracic disc prolapsed on MRI scan and that she was reporting a obvious deterioration in leg function. He concluded that the thoracic prolapse would have to be removed and that he would do that in the following January.

29. The story is next taken up by Doctor O’Riordan who saw her on the 10th of January 1994, when he called to her house. At that stage she had difficulty in moving and was in considerable discomfort. He saw her again on the 23rd of January, at which stage she was very agitated and felt that everything had got worse. Doctor O’Riordan arranged for her admission to hospital as an emergency. The Plaintiff was admitted to Cork Regional Hospital on the 24th of January 1994. She was obviously very ill on admission with virtually no power in her lower limbs, with diminished sensation in both lower limbs and increased tone in these limbs. On the following day 25th of January 1994, the Plaintiff underwent surgery carried out by Mr. Marks for the purposes of clearing the disc material. At the end of the procedure it was noted that there was no central prolapse.

30. Following the surgery the Plaintiff was noted on the 3rd of February 1994 to be feeling much better, to have increased power in the right leg, but still complaining of pain over the right leg and that she was getting physiotherapy.

31. Doctor Callaghan saw the Plaintiff on the 6th of February 1994. He had not seen the Plaintiff since the previous June and had not participated in the decision making process that resulted in the Plaintiff having surgery. When he saw her on the 6th of February, Doctor Callaghan was not as impressed of the improvement that had been noted on the 3rd. The Plaintiff told him on the 6th that there had been some improvement in her lower limb weakness, but that since surgery she has developed clumsiness in the right hand and that she had unpleasant tight sensations in both legs. Doctor Callaghan found her to have a spastic paraparesis and that she had significant weakness in both lower limbs. He concluded at that point in time that if there was no improvement in the lower limb weakness following the surgery, it was more likely that the weakness related to the MS. He formed the view then the more recent symptoms of right hand clumsiness, was more in keeping with lower cervical lesions and with the MS. He was of the view that the MS lesions had spread into the spinal cord.

32. Doctor Callaghan next examined the Plaintiff on the 16th of February 1994. He found that there had been a significant deterioration with gross weakness of both lower limbs and moderate weakness of both upper limbs with sensory loss up to the T4 level. He found that the situation had progressed further to involve her eyes and that she now a condition known as intranuclear opthalmoplegia, which is a condition resulting in a defect of the movement of the eyes and is associated with double vision. This is caused commonly by MS due to plaque in the mid-brain and brain stem areas. Doctor Callaghan concluded that there was further clinical evidence of further dissemination between his examination on the 6th of February 1994 and his examination on the 16th of February 1994. On this occasion 16th of February 1994 Doctor Callaghan made the definitive diagnosis of MS.

33. Thereafter the Plaintiff was commenced on steroids for five or six days.

34. The Plaintiff had a repeat MRI scan done on the 20th of February 1994. The Result of this was as follows:-

35. The Plaintiff was seen again by Doctor Callaghan on the 1st of March 1994, at which time her legs were paraplegic. Her upper limbs were better. At this time the Plaintiff was being catheterised, suffering from a failure in micturition. This was also a symptom which had arisen since her surgery.

36. Mr. Marks on the 14th of March 1994 noted the results of the surgery as gleaned from the repeat MRI scan as being as follows:-

37. As of the 20th of March 1994 the Plaintiff was found to be confused and had significantly reduced power in her arms having lost nearly half the power there. Doctor Callaghan who saw her at this time was of the view that her prognosis was very poor and that she had very active demyelination at that time. She also developed an infection and this in combination with her MS resulted in her confusion. She was extremely ill at this stage. He saw her again on the 21st of March 1994 and noted little improvement. She was very withdrawn and was suffering from generalised pain, she was put on medication for muscle spasm and for intractable pain. She had very very servere pain. Doctor Tony O’Brien who was in charge of the Hospice in Cork was consulted then to advise on drug treatment of her pain and discomfort and to counsel her family.

38. Doctor Callaghan saw her again on the 28th of March 1994 and was of the view that she was suffering from rapidly progressive MS. She was seen next by Doctor Callaghan on the 8th of April, at which time he felt she was improving and was having some physiotherapy in the gym. Doctor Callaghan saw her on the 12th, 13th and 14th of April at which time she was having a good deal of trouble with pain. On the 15th of April she was seen in the opthalmology department. She was complaining of diminished visual acuity in both eyes since developing MS. On examination she was found to have diminished visual acuity in both eyes and they also found a jerky nystagmus on the right and left gait. This was in Doctor Callaghan’s opinion, in keeping with brain stem involvement.

39. The pain continued to be a major issue and Doctor Fogarty a Pain Relief Consultant was brought in. Obviously some improvement was achieved because on the 6th of May the pain in the legs was noted to be gone. On the 10th of May it was noted that the Plaintiff now only had pain at night in both knees. On the 11th of May 1994 a right left sympathetic ganglion block was performed. As of that time her visual acuity was found to have gone down and she was unable to have a visual field test done because of her inability to sit upright at the instrument. This was due to trunk weakness caused by the MS.

40. The Plaintiff would appear to have improved somewhat from this point on. She was noted on the 18th of May to be in good form. On the 19th of May she had a left lumber sympathetic ganglion block performed. She continued to improve and as of the 10th of June had good leg improvement and was continuing physiotherapy. As of the 21st of June she was again noted to be much improved and the power in her legs was now four out of five. She was still unable to walk unaided. She continued physiotherapy and on the 4th of July was noted to be much improved and she was walking with some aid. On the 8th of July her catheter was removed.

41. On the 11th of July she was walking, but she now complained of a hand tremor for which a beta blocker was prescribed.

42. On the 26th of July she was noted to be improving, walking with the aid of two people, to have a tremor and she was ataxic and she had double vision.

43. As of the 8th of August it was noted that the intention tremor was a problem, which was worse when walking or on parallel bars.

44. On the 18th of August the Plaintiff was walking with a zimmer frame. She was still having trouble with the tremor which was worse on the initiation of movement and involved the trunk more so than the limbs and more so in the lower limbs than the upper limb. The Plaintiff was now noted to be functionally independent and able to sit up. On the 25th of August which was a Sunday, the Plaintiff went home for a day.

45. During September she was getting recurring urinary tract infections and was getting abdominal pain from these.

46. She was discharged from hospital at the end of September and subsequently there was elective readmission for physiotherapy. She was discharged with a catheter and at that time there was gross cerebelar incordination and gross termor. There was increased tone in the lower limbs and diminished power. There was no sensory loss but there were increased reflexes.

47. The Plaintiff was re-admitted on the 10th of October and was in a five day ward for a number of weeks during October. Her main problems at this stage were related to a supra pubic catheter and related matters. These problems were caused by her MS.

48. The Plaintiff was discharged by Doctor Callaghan on the 7th of November, 1994 at which stage she had a considerable array of disabilities which rendered her wheelchair bound from then on.

49. When Doctor O’Riordan saw her after she came out from hospital he found her a massively changed person, virtually wheelchair bound with loss of power in the upper and lower limbs. She had developed a severe intention tremor and she had a catheter, she was depressed and Doctor O’Riordan was off the view that there had been an diminution in her mental powers.

50. Since that time her condition has tended to disimprove and because of her range of disabilities she has become dependant in all aspects of daily living. She has had a number of episodes of acute illness requiring hospitalisation and indeed one of these occurred not long before this trial commenced. Because of her state of health the Plaintiff was unable to give evidence before me.

51. As mentioned earlier, there was little controversy in the case over the actual course of the Plaintiff’s illness. However, a dispute of fact of some significance did arise in relation to the state of the Plaintiff’s health between March/April of 1992 and the time of her fall on the 9th of March, 1993.

52. It was contended for the Plaintiff’s that during this period that while the Plaintiff’s might have developed, as of April 1992, incipient symptoms of MS that these were solely sensory symptoms and that their degree was of a very mild or even benign nature and that for the period from April 1992 until the time of her fall she enjoyed normal health and normal activities and was untroubled by MS.

53. The Defendant’s on the other hand contend that when the Plaintiff saw her General Practitioner on the 23rd of March, 1992 she was complaining of sensory symptoms in her lower back but no lower limb symptoms, but by the time she was seen by Doctor Callaghan on the 9th of April, 1992 her complaints were of unpleasant sensations in her back, and unpleasant sensations in the thighs on both sides and a cold sensation in her lower limbs distal to the knee joint on both sides and a sensation of weakness of her left lower limb. On her admission to Cork Regional Hospital on the 13th of April, 1992 when examined by Doctor Beausang her complaints, in addition to those made to Doctor Callaghan a few days earlier were of a dragging of the left lower leg when walking and stiffness of the lower limbs, and subjective weakness of the left upper limb.

54. On the basis of this apparent progression of symptoms the Defendant’s contend that during the period from 23rd of March, 1992 until the 13th of April, 1992 there was a rapid progression of the Plaintiff’s MS. The Defendant further points to the complaints made by the Plaintiff to Doctor Callaghan when he saw her at the end of April 1993 where she said she had “ongoing symptoms” . In cross examination by Mr McCullough Doctor Callaghan agreed that the phrase “ongoing symptoms” was to be interpreted as meaning that the Plaintiff’s symptoms as of April 1992 continued throughout the intervening period until the Plaintiff saw Doctor Callaghan at the end of April 1993, and that hence her MS which was actively progressing in March/April of 1992, continued in an active form throughout the period from April 1992 to March 1993.

55. I had the benefit of hearing the evidence of Doctor O’Riordan and Doctor Callaghan. Doctor O’Riordan was at the time an experienced General Practionier and Doctor Callaghan was an eminent Consultant Neurologist of great experience. Doctor Beausang was not called to give evidence.

56. I would readily accept the accuracy of Doctor O’Riordan’s evidence as to what complaints were made to him by the Plaintiff on the 20th of March, 1992 and I would accept that as of that time the Plaintiff’s only complaints were of unusual sensations in her lower back area and not in her lower limbs. I would have no doubt that between the time she was examined by Doctor O’Riordan and when she first saw Doctor Callaghan on the 9th of April, 1992 her complaints expanded to the extent that when she saw Doctor Callaghan she was complaining of lower limb sensations and a subjective feeling of weakness in her left lower limb.

57. I do not think however, that I could safely rely upon the notes made by Doctor Beausang in relation to his examination of the Plaintiff on her admission to Cork Regional Hospital on the 13th of April, 1992. I think it highly unlikely that a Neurologist of Doctor Callaghan’s eminence and experience would have missed the signs and symptoms apparently detected by Doctor Beausang particularly when it is obvious from Doctor Callaghan’s recording of the Plaintiff’s history and of his examination of the Plaintiff, that he specifically directed his attention to matters such as weakness or otherwise of the Plaintiff’s lower limbs and unusual sensations in her thighs and below her knees. I think it inconceivable that Doctor Callaghan would have missed a sign or symptom so obvious as the dragging of the left lower limb or an unsteadiness on the left lower limb. I am quite satisfied, having listened to Doctor Callaghan’s evidence and seen his meticulous recording of the Plaintiff’s history and his examination of her and having regard to his experience and eminence, that his findings in so far as they differ from those of Doctor Beausang, are to be preferred to Doctor Beausang’s. In this regard I am mindful of the fact that Doctor Callaghan and indeed of Mr. Buckley readily acknowledged Doctor Beausang’s skill as a Doctor. Nevertheless at the time that he carried out this examination he was still an intern in the process of doing his two months period of neurology. I would readily accept that the discipline of neurology is one of particular difficulty for the relative novice and I would have no doubt that experience of the kind that Doctor Callaghan had in this discipline would be of decisive value in carrying out a difficult neurological evaluation.

58. I have come to the conclusion therefore that the state of the Plaintiff’s health as of April 1992 is as was described by Doctor Callaghan and was to the effect namely that the Plaintiff made certain complaints but Doctor Callaghan having carried out a detailed neurological examination was unable to detect any neurological abnormality in her lower back or lower limbs. Thus while the Plaintiff at this time had some subjective symptoms there were no clear or objective neurological signs of disease at that time.

59. This brings me then to the state of the Plaintiff’s health between April of 1992 and March of 1993. The evidence bearing on this period is the reference by the Plaintiff in her complaints to Doctor Callaghan in April of 1993 to “ongoing symptoms” and the evidence of Doctor O’Riordan of seeing the Plaintiff socially, going about her normal activities without any apparent sign of discomfort or ill health during the period in question. It should be mentioned in this context that there was no evidence that the Plaintiff sought any medical attention during this period relative to the complaints she made in April of 1992.

60. Doctor O’Riordan’s evidence is important in this regard because he knew the Plaintiff well. Of relevance in this context also is the personality of the Plaintiff who was described by Doctor O’Riordan in cross examination by Mr. McCullough as being a person who was of a neat and tidy disposition and of being very particular about her health. This picture is reinforced by Doctor Callaghan’s impression of her as being anxious about her health problem and very keen to get precise clarification of it.

61. I would infer from these facts that the Plaintiff was in good health during this period, but from time to time probably did have fleeting symptoms of the kind she had complained of to Doctor Callaghan in April of 1992. I would infer from the fact that she did not seek medical attention for any of these complaints during the period in question that while these symptoms may have occurred they were not of such a degree or frequency as to have caused her any significant trouble, and indeed bearing in mind the fact that when she left Dr Callaghan’s care in April of 1992 she had not got, at that stage what might have been considered to be definitive clarity as to the cause of these symptom, it would seem to me to be probable that these symptoms if they were occurring during the period in question must have troubled the Plaintiff very little and appeared of relative insignificance to her.

62. It is noteworthy in the context of what was happening in the Plaintiff’s health relative to these complaints during this period that when she did have her fall on the 9th of March, 1993 and when she did go to see Doctor O’Riordan on the 10th of March, 1993 she does not appears to have placed any stress on those symptoms. Her symptoms which she complained of on that day to Doctor O’Riordan were of back discomfort, right elbow discomfort and a mild headache. When examined her a week later a much more positive picture of a weakness in her lower limbs and of some feeling of numbness and also hot sensations in her limbs, emerged.

63. I have therefore come to the conclusion that during the period from April of 1992 until the 9th of March, 1993 the Plaintiff was well but may have had symptoms of the kind complained of to Doctor Callaghan in April of 1992 but of a very fleeting and mild nature.

64. The main dispute in this case was between the expert witnesses on whether or not trauma to the central nervous system can aggravate existing MS and whether in the case of the Plaintiff her MS was aggravated by the effects of the thoracic disc on her central nervous system and/or whether her MS was aggravated by the surgery to decompress the thoracic disc.

65. On the first of these questions evidence was given for the Plaintiff by Mr. Thomas Russell a Consultant Neuro Surgeon from Edinburgh, Professor Lesley Finlay a Consultant Neurologist from the United Kingdom, Doctor Stanley Hawkins a Consultant Neurologist from Belfast. For the Defendant’s evidence was given on this topic by Professor George Ebers Professor of Neurology at Oxford University, Doctor Sean Murphy Consultant Neurologist at Beaumont Hospital and the Mater Hospitals in Dublin, and Mr. T.F. Buckley a Consultant Neuro Surgeon in Cork.

66. All of these witnesses in the course of giving there evidence on this general question referred to the literature on the topic.

67. Going back many years studies were published which appeared to demonstrate a connection between trauma and the exacerbation of MS. The difficulty with many of these studies was that they related to very small numbers and were essentially anecdotal in nature and were generally retrospective studies. In more recent times prospective studies were conducted by W.A. Sibley et al published in 1991 and by A. Siva et al published in 1993. These studies followed groups of MS patients prospectively over, a considerable period of time, and both of these studies reached the conclusion that there was no connection proven between trauma and exacerbation of MS.

68. These studies have been criticised in these proceedings by the Plaintiff’s experts because there were not sufficient numbers of relevant traumas to the head or central nervous system included in these studies. In particular insofar as the Sibley et al study is concerned none of the persons studied had a relevant head injury, and only four had spinal injury and the paucity of these numbers was criticised, on the basis that no conclusion could be drawn from such a small number.

69. As the case progressed and as the Defendant’s experts were challenged on the limitations of these studies it became clear that because of the very small numbers of relevant traumas considered, these studies could not be regarded as demonstrating that trauma to the central nervous system did not exacerbate MS.

70. Of the Plaintiff’s expert witnesses Mr. Russell, the Neuro Surgeon expressly declined any expertise in the area of Multiple Sclerosis but he gave evidence that there was a general reluctance amongst Neuro Surgeons to operate on patients with MS because of a perceived risk of making the MS worse.

71. Professor Finlay supported the proposition that trauma to the central nervous system could exacerbate MS and also that surgery on a patient with MS could likewise make it worse. He expressed the view that most Neurologists had anectodal experience of cases where this had happened and that he had himself in his own experience had come across it.

72. Doctor Hawkins’ evidence was of a similar nature. Both of these experts postulated as the scientific basis for these occurrences, a breach of the Blood Brain Barrier

73. Apart from Professor Ebers all of the expert witnesses appeared to accept that where there occurred a breach of the Blood Brain Barrier in someone who already had MS, that there was a risk of exacerbating the MS. Doctor Sean Murphy restricted his evidence in this regard, to ineffect agreement with Doctor Hawkins that any development of MS lesions resulting from a breach in the Blood Brain Barrier would be close to or adjacent to the breach.

74. Professor Ebers differed on this question to the extent that in his view the breach of the Blood Brain Barrier was not a developmental or seminal event in the development of MS plaque. He acknowledged that in the active phase some MS plaques give rise to oedema which implies a breach of the Blood Brain Barrier but it was his view that this was part of the MS plaque or in other words an effect rather than a cause of MS.

75. Returning briefly to the literature an article in a neurology magazine 1999; 52; 1737 - 1745 entitled “The Relationship of MS to Physical Trauma and Psychological Stress” was referred to. This article was a report of the Therapeutics and Technology Assessment Subcommittee of the American Academy of Neurology. This article was an overview or review of the literature on the subject in question and amongst it authors was Professor Ebers who gave evidence in the case. This article includes the following passage which was referred to in the evidence:-

76. The above quotation probably encapsulates the two schools of thought represented by, on the one hand eg.Professor Ebers and on the other hand those who support the proposition that trauma resulting in breach of the BBB can aggravate MS. Professor Ebers dissatisfaction with this proposition was on the basis set out in the last part of the quotation above, namely that in his view T-cells which were thought to cross through the Blood Brain Barrier after a breach and to cause MS Plaques, were present in the CNS normally and could traffic through the Blood Brain Barrier while same was intact. Hence Professor Ebers dissented from the proposition that a breach of the BBB was part of the causation of MS Plaques.

77. Clearly the ultimate scientific resolution of this controversy is not something with which this Court need concern itself. However, the great weight of the expert evidence I heard was in favour of the proposition that trauma to the central nervous system can cause an aggravation of MS through the mechanism of a breach of the BBB. It is of course very unsatisfactory that there are not clear answers, as to what is the entire causative pathway leading up to a breach of the Blood Brain Barrier and beyond. However, the opinion in favour of the proposition that trauma to the CNS, can aggravate MS is long standing amongst neurologists and was shared by all but one of the experts who gave evidence before me.

78. I am therefore inclined to prefer the view, that as a matter of probability this theory is more likely to be correct.

79. That brings me to the question of whether or not surgery performed on patients who already have MS is likely to exacerbate the MS.

80. For the Plaintiff, Mr. Russell said that neurosurgeons were generally very reluctant to operate on patients with MS because of the fear of worsening the MS. Professor Finlay endorsed that view. Doctor Hawkins did not express any view on that general question though in relation to the Plaintiff’s case he expressed a willingness to agree with Doctor Callaghan on that topic. Doctor Callaghan was not asked his view on the general question but insofar as the Plaintiff was concerned he was emphatic in his view that the surgery made her MS worse.

81. For the Defendant’s, Mr. Buckley was not asked specifically whether in general terms surgery could make MS worse but in the Plaintiff’s particular case he was of the view that the surgery did not excabertate her MS. Doctor Sean Murphy accepted that surgery on the brain itself in patients who have MS could give rise to new lesions and in this context he instanced surgery to place trocars or probes in to the brain, and where subsequently it was discovered that lesions had developed along the path of the trocars. He also gave an example of surgery done where it was thought the MS lesion was in fact a tumour, as a result of which patients have done worse following procedures of this kind, and every institution have two or three cases of this kind.

82. Professor Ebers, pointing to the fact that the Plaintiff had got much worse after her surgery, said that when patients were having an active flare up of their disease he was against operating on these patients virtually ever, but, that the worst time to operate was when the symptoms were really active because the surgery seems to stir up things and make them worse. He went on to agree that his experience accumulated antecodally was of such a volume or weight to have caused him to come to a policy against surgical intervention.

83. It appeared to me listening to the evidence of these experts, that the weight of opinion was in favour of the view that surgical intervention in the brain or central nervous system, on patients who had MS and particularly in the active phase carried with it a substantial risk of making the MS worse. As a general proposition, I have concluded therefore, that it is likely or probable that surgery on the central nervous system in patients who already have MS carries with it the substantial risk of making the MS worse.

84. This brings me to the question of whether in the Plaintiff’s case the prolapsed thoracic disc caused by the fall exacerbated her MS and secondly whether the surgery carried out in January 1994 to decompress the thoracic disc caused a further exacerbation of the MS. There was little or no controversy amongst the experts in the case as to whether or not the Plaintiff had a prolapsed thoracic disc at D6/7. There was indeed a great deal of controversy as to the extent of any compression of the spinal cord caused by this prolapsed disc. For the Plaintiff Mr. Russell was of the view that there was a significant compression of the spinal cord, it being indented and distorted to the extent of 10 to 20 per cent of its normal circumference. This view was agreed with by Professor Finlay and Doctor Hawkins. Amongst the neuro radiologists who gave evidence Doctor McKinstry for the Plaintiff put the degree of distortion in the 20 to 25 per cent bracket and described the degree of compression as “moderate” Doctor Hickey another neuro radiologist called for the Plaintiff was also of the view that there was significant compression.

85. For the Defendant’s there was an entirely different view held generally amongst their experts. Mr. Buckley was of the view that there was no significant compression of the cord as there was plenty of space at the back of the cord. Doctor Sean Murphy was emphatically of the view that there was no compression of the cord, and likewise Professor Ebers was of the same view. Doctor Ryder a Consultant Neuro Radiologist called by the Defendant’s was similarly of the view that the MRI scan of the 28th of May 1993 did not show any compression of the cord. He accepted that there was a prolapsed disc which was abutting the thecal sac but not compressing the cord itself. All of the witnesses for the Defendants pointed to the fact that there was space available at the back of the cord indicating that the cord was not compressed between two hard surfaces.

86. It would seem to me that the central question insofar as any exacerbation of the Plaintiff’s MS is concerned is not the degree of compression of the cord (if any) but whether or not there was oedema present in the cord at this location. The presence of oedema would indicate a breach of the BBB and thus would have created the mechanism which could be associated with development of further MS plaques.

87. The question of whether or not there was oedema and/or compression at this point came down exclusively to the interpretation of the MRI scan done on the 28th of May, 1993. That being so, it would seem to me to be appropriate that I should determine this issue by reference to the evidence of the appropriate experts, namely the neuro radiologists, who gave evidence.

88. The first opinion, on this topic which was put in evidence was that of the neuro radiologist who initially reported on the scan that is Doctor Toland in Beaumont Hospital. His conclusion in his report is expressed as follows:-

89. Dr Toland, was not called as a witness .

90. Although Doctor Toland reported the presence of a “syrinx” the predominant view amongst the neuro radiologists and indeed the other experts who gave evidence was that there was in fact no syrinx present. This was however generally agreed to be immaterial to the real questions of whether or not there was compression and/or oedema.

91. Evidence on this topic was given for the Plaintiff by Doctor Matt Hickey, a Consultant Neuro-Radiologist at Cork University Hospital. His evidence was to the effect that the scan showed local oedema at D6/7, 1 centimetre above and below this level, and that there was a breach of the BBB. He also was of the view that the scan showed MS plaques in the cervical and thoracic cord and he described these as typical of the abnormal findings of MS in that they were discrete foci, that they had well defined margins and they were small and the had a homogenous texture. He distinguished these from the abnormal signal at D6/7 which he said was certainly not homogenous, that it was a mixed jumbled low signal and less than low signal. He went on to say that the components of interpretation, would be size, shape, position, configuration, margin, texture, and homogeneity. He said he did not find specific MS lesions below the D5/D6 level. Doctor Hickey was the only expert called who was still of opinion that the scan demonstrated a syrinx.

92. The Plaintiff also called Doctor McKinstry, a Consultant Neuro-Radiologist in the Royal Victoria Hospital in Belfast. He was also of the opinion that the scan of the 28th of May 1993 demonstrated discprotrusion at the D6/7 level and that the abnormal signal indicated oedema at that level. He also found abnormalities in the cord above and below that level which were consistent with MS. In relation to the MRI scan on the 18th February 1994, he was of the view that this demonstrated that the oedema had reduced and that there were further areas of abnormal signal extending up and down the cord. His evidence was that the extent of the compression of the cord was 25%, that the spinal fluid was displaced and that the thecal sac was pressing on the cord and that there was oedema in the cord. He described the signal from the disc area as confluent indicating oedema.

93. Doctor Ryder, a Consultant Neurologist also of Cork University Hospital was called to give evidence on behalf of the Defendant. He disagreed with the opinions of Doctor Toland, Doctor Hickey and Doctor McKinstry. Doctor Ryder’s evidence was to the effect that the MRI scan of the 28th of May 1993 did not show any significant compression, that the disc protrusion merely abutted the thecal sac and did not significantly impinge upon the cord, and that there was no compression evidenced by the fact that there was fluid behind the cord. He was also of the view that there was no oedema shown, and that it was virtually impossible to distinguish between oedema and an MS plaque and that in his view that because the scan demonstrated MS pathology it was reasonable to infer that the signal coming from the D6/7 area was the result of that pathology rather than a second pathology and in his view the abnormal signal from this area was due to a very large MS lesion.

94. The interpretation of MRI scans clearly requires great expertise and the discipline of neuro-radiology, in this regard, is a remote and incomprehensible landscape to the lay person. Thus in resolving the issue as to which view of this scan is more probably correct one has to rely solely on the impressions created by the various experts.

95. In reaching a conclusion on this issue the following factors impressed me as significant. Doctor Hickey and Doctor McKinstry gave a detailed description of the distinguishing features which enabled a neuro-radiologist to interpet an MRI scan so as to distinguish between MS plaques and oedema. Doctor Ryder in his evidence, was of the view that it was well nigh impossible to distinguish between MS plaques in the acute phase and oedema. I asked Doctor Ryder whether it was part of the discipline of neuro-radiology to attempt to distinguish between oedema and MS plaques and not withstanding repeating the question a number of times I failed to get a satisfactory answer.

96. On balance I was more impressed by the evidence of Doctor McKinstry and Doctor Hickey on this question and hence I have come to the conclusion that as a matter of probability, the scan of the 28th May 1993 demonstrated oedema at the site of the thoracic disc at D6/7. It necessarily follows from this that there must have being compression of sufficient degree to cause oedema which in turn meant that there was a breach of the BBB adjacent to thoracic disc D6/7.

97. The next question which arises is whether as a consequence of this there was an exacerbation of the Plaintiffs MS.

98. I have already held herein that the Plaintiff was during the period from April 1992 until March of 1993 in substantially good health. When she went to see Doctor O’Riordan on the 10th of March 1993, she gave a history of back discomfort, right elbow discomfort and mild headache. She may have complained also of pins and needles around her back area but not lower down. It is not entirely clear from Doctor O’Riordan’s evidence whether this is in fact the case. When asked whether on the 10th of March she had complained of hot sensations and numbness, he answered that he hadn’t documented that she made that complaint. He went on to say that she complained of pins and needles but they seemed to be around her back area rather than lower down.

99. However, when she went to see the Doctor O’Riordan’s on the 16th of March, her complaints were of a somewhat different nature. At that stage she said her headache had got much worse and that she had started to complain of a weakness in her limbs and some feeling of numbness and hot sensations in her lower limbs. Thus, either immediately after her accident on the 10th of March 1993 or certainly by the 16th of March 1993, the Plaintiff was complaining of a variety of neurological symptoms in her back and lower limbs. I would infer from this and her probable good state of health prior to her accident, that these symptoms had begun to trouble her again to a worrying extent, after her fall.

100. Doctor O’Riordan arranged for the Plaintiff to be seen by Mr. Tony McGuinness, an orthopaedic surgeon, who in turn referred her back to Doctor Noel Callaghan, whom she saw on the 29th of April 1993. At that stage she was complaining of stiffness in her back, hot sensation radiating from her trunk into her lower limbs and pain in the region of her knee joints on both sides, she also had neck pain and pain in her left upper limb radiating to the little and ring fingers of her left hand. Doctor Callaghan observed that she was very worried and anxious about her ongoing symptoms. Doctor Callaghan noticed on examination that while walking there was a slight drag in her right leg, and he found that there was an equivocal plantar response on the right side. He next saw the Plaintiff on the 8th of June 1993. In the meantime, the MRI scan was done on the 28th of May 1993, when he saw her he had the report of same available for her. On this occasion the Plaintiff complained of intermittent episodes of weakness in the right lower limb and a stiff sensation an unpleasant burning type sensation in the lower part of her back and in both lower limbs and that both her lower limbs were stiff. She also complained of some ongoing neck pain and headaches. On examination on this occasion Doctor Callaghan found that there was a very definite drag of her right lower limb and that tendon reflexes in both lower limbs were very definitely exaggerated, brisker on the right than the left side and that there was an equivocal plantar response on the right side and a flexor plantar response on the left side. He concluded at this stage that she had a very definite spinal cord lesion with associated pyramidal tract findings in both lower limbs.

101. Thus there would appear to have been a considerable progression between the end of April ‘93 and beginning of June ‘93 in the Plaintiffs neurological symptomatology. The next medical observation of the Plaintiff was in the 11th of September 1993 when she was seen by Doctor O’Riordan, where he found that she had markedly disimproved and that she was now quite staggery. He found that she had signs of cerebellar involvement, that she was walking with a wide gait and that she needed support when walking. What Doctor O’Riordan observed on this occasion was clearly a very significant disimprovement in the Plaintiffs neurological status. He saw her again on the 20th of September when he noticed a further disimprovement. He thought she was quite incapacitated at this stage. By the beginning of January the Plaintiff got to the stage of being close to paraplegic with virtually no power in her lower limbs. In the light of this very dramatic and rapid disimprovement in the Plaintiff after her accident, the Plaintiff contends that as a matter of probability this decline was the result of an exacerbation of her MS caused by the intrusive effect on her spinal cord of the thoracic disc.

102. On this issue the experts who gave evidence differed dramatically. For the Plaintiff, Professor Finlay was very definitely of the view that the thoracic disc had made her MS much worse. Doctor Hawkins evidence was to the effect that, the breach of the Blood Brain Barrier at the location of the thoracic disc had probably given rise to the development of MS plaques adjacent to this site and that this development accounted for the dramatic decline in the Plaintiffs lower back and lower limb symptoms. Doctor Callaghan, while being of the view that the thoracic disc had not effected her Multiple Sclerosis, nevertheless agreed, that had there being a breach of the Blood Brain Barrier this carried with it a high risk of worsening the MS.

103. For the Defendants, Doctor Sean Murphy utterly rejected the view that the fall had any effect on the Plaintiffs MS. His evidence in this regard was that there was no compression or oedema and hence could not have been any effect on her MS, and that she was a typical case of progressive MS and that her disease was progressing in the normal but very rapid and downhill pattern of progressive MS. Professor Ebers was of the same view and both of these experts said that in their considerable clinical experience they had never been impressed of any connection between trauma and exacerbation of MS. Mr. Buckley was of the same view.

104. All of these experts on both sides accepted that the Plaintiff was now suffering from very active Progressive MS. Evidence was given that the proportion of all sufferers of MS who fall into the category of primary progressive MS is variously 10%, 12% or 15%. Doctor Hawkins gave evidence that in Northern Ireland studies had shown the proportion to be 12%. Having regard to the close geographical proximity of where this study was carried out it would seem to me to be reasonable to conclude that in the area where the Plaintiff lived it would be likely that the proportion of MS sufferers who fall into the primary progressive category would be of a similar proportion i.e. around about 12%.

105. Having regard to the relatively short length of time from initial onset of symptoms i.e. April of 1992 until the Plaintiff was unable to walk namely December 1993, Professor Ebers put her in the worst 10% of the primary progressive category. His evidence was that the median time for MS sufferers in this category to get to a point of been unable to walk was 7 years. From this evidence I infer that the Plaintiff was suffering from primary progressive MS and that she was in the worst 10% of the primary progressive category which I would infer, would place her in the overall context of MS sufferers in the worst 1% or close thereto.

106. While, it was the evidence of the Defendants experts, that the Plaintiffs’ MS pursued the natural course for somebody with Primary Progressive MS and was unaffected by the thoracic disc, it was the evidence of the Plaintiff’s experts and in particular Doctor Hawkins that notwithstanding the fact that she was suffering from primary progressive MS that the pace of her disease was greatly accelerated and that while she would eventually end up with the kind of disability she now has, that the point in time for this occurrence was brought forward by her fall and the consequent prolapsed thoracic disc.

107. That therefore poses the question which I have to resolve, namely was her MS from March of 1993 onwards progressing naturally as Progressive MS or was the rate or progression of her MS accelerated and brought forward in time by the fall.

108. There is undoubtedly a very strong temporal connection, between the fall and the rapid development of MS symptoms thereafter throughout the rest of 1993,. In the light of the breach of the BBB caused by the fall there is a plausible biological explanation of a connection between the fall and the Plaintiffs very rapid decline. The question that arises is whether this rapid decline from March 1993 onwards is to be regarded as the coincidental natural progress of the disease, and unconnected to the fall.

109. In the light of the effect of the thoracic disc in generating oedema associated with some degree of compression and the undoubted consequent breach of the BBB, and the onset or re-onset of a set of symptoms that rapidly progressed, it would seem to me that this coincidence is an unconvincing explanation.

110. I have therefore come to the conclusion that as a matter of probability the fall resulting in the prolapsed thoracic disc did cause an aggravation of the Plaintiffs’ MS.

111. Next to be considered is the issue of whether or not the surgery which was carried out on the 25th of January 1994 caused a further aggravation of the Plaintiffs’ MS.

112. Here we have the very helpful evidence of Doctor Callaghan who described the deterioration in the Plaintiffs’ condition following the surgery. Within a very short time of the surgery, the Plaintiff had developed a whole range of new neurological symptoms as follows, weakness in her upper limbs, clumsiness in her hands, very severe bladder and bowel problems, altered sensation up to the T4 level, intranuclear opthalmoplegia, diminished visual acuity, trunk weakness, and finally severe intention tremor in her hands. In addition to the foregoing, during the months of March and April 1994 the Plaintiff became extremely ill as a result of the combination of MS and infection, and during that period became very confused. The Plaintiff also suffered extreme pain particularly during the months of April and May 1994.

113. There is no doubt that all of these symptoms came on soon after her surgery and all are undoubtedly attributable to her MS.

114. The Plaintiff contends that it was the surgery was responsible for precipitating all of these symptoms and thus aggravating the MS. The Defendants reject this and say that the occurrence of these symptoms had nothing to do with the surgery and were merely part of the natural progression of her very severe MS.

115. For the Plaintiffs’ Professor Finlay was firmly of the view that the surgery did aggravate the MS and he shared the opinion that surgery on the central nervous system was contra indicated for MS patients. Mr. Russell, as earlier indicated, concurred in this view. Doctor Hawkins deferred to Doctor Callaghan on this aspect of the case and was willing to agree with Doctor Callaghan’s opinion. Doctor Callaghan was firmly of the view that from the clinical perspective the surgery had worsened the Plaintiff’s MS.

116. For the Defendants’ Doctor Murphy rejected this view and with Mr. Buckley could see no basis for a connection between surgery which had preceded uneventfully, and an exacerbation of MS.

117. The only biological or scientific explanation of how this could happen came from Mr. Russell. He was of the opinion that surgery on a thoracic disc no matter how carefully done would inevitably lead to a breach of the Blood Brain Barrier or a further breach of the Blood Brain Barrier, because the exercise of decompressing the cord would result in a refilling process which would give rise to further leakage or breach of the BBB. Professor Finlay agreed with this proposition. Both Mr. Buckley and Doctor Murphy firmly rejected it, however Professor Ebers did agree with it, as a plausible mechanism.

118. Unlike the other experts called for the Defendants, Professor Ebers had a very emphatic view against surgery on MS patients particularly when in the active phase. This view found an echo in the views expressed by Mr. Russell, Professor Finlay and Doctor Callaghan.

119. I was impressed by the emphasis of Professor Ebers’ on this topic. It was initially introduced by him, un-bidden in the course of cross-examination on a different subject.

120. In the light of the very rapid development of very significant neurological symptoms so soon after her surgery, almost in a cascade, and having regard to the evidence I heard about the contra indication of surgery for patients with active MS, I am driven to the conclusion that it is probable that the symptoms of MS which the Plaintiff undoubtedly developed in the aftermath of her surgery was an exacerbation of MS brought on by the surgery.

121. There is little doubt but that the decision to carry out the surgery notwithstanding the above contra indication was a reasonable one. At the time that that decision was made it was not clear whether it was the thoracic disc or the MS was causing the Plaintiff’s lower body symptoms. While the surgery carried with it the risk of making the MS worse, nevertheless the prospect of curing the Plaintiff’s near paraplegia at that point, by relieving the compression, was a real one and justified the surgery. It became clear after the surgery that the real problem was the MS rather than the thoracic disc.

122. However, given that the decision to carry out the surgery was at the time that it was made, a reasonable and prudent one, the consequences of that surgery are inexorably connected back to the fall.

123. This brings me to perhaps the most difficult question to be decided in the case and that is the extent or duration of the aggravation of the Plaintiff’s MS both by the thoracic disc and subsequently the surgery.

124. The consequence of the thoracic disc was the development of unpleasant sensations in the lower limbs and towards the end of 1993 weakness and spasticity in the lower limbs culminating in virtual paraplegia in the early part of 1994. There may also have been some urinary problems though they appear to have been relatively slight at this stage. In approaching a resolution of this issue I am mindful of the fact that the overwhelming weight of the evidence from the experts was to the effect that the Plaintiff had Primary Progressive MS and in due course was going to end up with her present range of disabilities at some point in time.

125. Professor Finlay was not asked to quantify expressly the extent of aggravation or its duration. Doctor Hawkins was of opinion that there was a 70% chance that the Plaintiff would now be walking perhaps with the aid of a stick, had it not been for the thoracic disc. He also said that if the Plaintiff was now still walking her bladder and bowel symptoms would be much less severe. Doctor Callaghan, although emphatic that the surgery had made the MS worst, was unable to give any opinion as to the extent or duration of the aggravation. He was, however, of opinion that the aggravation after surgery had brought on sooner the occurrence of the symptoms and accelerated their course. He could not, however, give an opinion as to the time scale involved.

126. The Defendants experts rejected any notion of a connection between either the thoracic disc or surgery and the MS and hence were not asked to address the topics of duration or extent of any aggravation. Professor Ebers in dealing generally with the category of Primary Progressive MS gave evidence that the median time from onset to not being able to walk was 7 to 8 years.

127. Insofar as the Plaintiff’s lower body symptoms resulting from the thoracic disc are concerned, I would infer, from the evidence of Professor Ebers and Doctor Hawkins, that it is likely that the Plaintiff would still be walking, although, with the aid of a stick and that her bowel and bladder problems would be much less severe, but that she was likely to lose the ability to walk after a period of some 8 years from the first onset of symptoms, so that she would have arrived at the stage she is now at, within 10 years of first onset of symptoms.

128. I have no direct evidence at all from any of the experts as to the duration of the symptoms that arose after the surgery. These symptoms have continued to afflict the Plaintiff since that time and the question is, when would the natural progress of her MS take over as the cause for these ongoing symptoms. I am conscious that in the intervening years the Plaintiff has at times been quite ill and on occasions has required hospitalisation for active phases of her MS. However, there has been no evidence of the developing of a new range of different symptoms to that which were there when she emerged from hospital in October 1994. It would seem to me to be reasonable to draw the inference, from this, that given that she still has the range of symptoms she developed at that time after surgery, and has not developed significant different symptoms since then, that the duration of the aggravation of MS by the surgery, as reflected by those symptoms should be considered to be coterminous with the symptoms that ensued following the thoracic disc, but before surgery.

129. If it is the case that the symptoms resulting from the disc, would have reached the stage they were at in October 1994 by early 2002 i.e. 10 years from onset, as a result of the natural progress of the disease, it is probable in my view that the symptoms which occurred soon after the surgery would, in the natural course of the disease have occurred, in a similar time frame. Indeed the fact that different symptoms have not emerged in the mean time, would seem to suggest that the disease has been less active in the intervening years, than in the period from March 1993 to October 1994. This gives rise to the inference that, the Plaintiff, but for the thoracic disc, and the surgery, would have remained free of these symptoms, up to the present time. However, if it is the case that the thoracic disc related symptoms were going to occur in the near future, from now, it seems reasonable, to me to conclude that the natural activity of the disease, would likewise produce the symptoms that occurred after the surgery, in a similar time frame.

130. So far as the symptoms resulting from the surgery are concerned, to conclude otherwise would involve a consideration of a different period of duration. Having regard to the fact that the symptoms have continued to the present, and to the fact that significant different symptoms have not emerged in the meantime, the inference that the symptoms should have ascribed to them a duration similar to the symptoms from the thoracic disc is rational and reasonable. I am mindful in this regard that the symptoms that came on after the surgery are still with the Plaintiff and appear to be permanent in character. That could lead to the inference that these symptoms are to be attributable to the aggravation resulting from the surgery for the entire duration that they will last, namely to the end of the Plaintiff’s life. However, I accept that the Plaintiff was at all material times suffering from Progressive MS and that it was likely that the symptoms she now has would have emerged at some stage. Thus, on the basis that Doctor Hawkins was of the view that the symptoms from the thoracic disc i.e. the lower body symptoms were unlikely to have got to the stage that they have, for a period of 7 to 8 years at least, and having regard to Professor Ebers evidence in relation to the median period, in my view it is reasonable to limit the duration of aggravation in relation to the symptoms that resulted from the surgery, to a similar period of time.

131. Thus I have come to the conclusion that the exacerbation of the MS from the thoracic disc and the surgery in January of 1994 should be considered to have endured for a period of approximately 10 years from April 1992.

132. This brings me to the assessment on the Plaintiff’s loss and damage.

133. I approach this task on the basis of compensating the Plaintiff for the symptoms of MS that she has for a period of 8 years from January of 1994.

134. Thus, the Plaintiff has to be compensated for all of her pain and suffering resulting from the fall, the development of the thoracic disc, the surgery, the MS symptoms for the period in question and in addition it has to be borne in mind that she is being compensated for an acceleration or bringing forward of symptoms of this disease which in due course would have afflicted her. But the consequence of this acceleration of the disease is a probable shortening of her life expectancy for which she is entitled to compensation in general damages.

135. In my view an appropriate sum to compensate the Plaintiff by way of general damages for all of the disabilities and pain and discomfort and compromise of her independence that she has had to endure for the period in question, together with the shortening of her life expectancy is the sum £200,000-00.

136. The Plaintiff in addition claims substantial damages in respect of the cost of her maintenance and various essential services and in this regard evidence was given by Ms Noreen Roche and Ms Margo Barnes.

137. I have approached the assessment of damages on the basis that she is to be compensated for her pain and suffering for the period from the fall to early 2002. The evidence before me in relation to the care and maintenance and support of the Plaintiff is that up to the present time the Plaintiff has been cared for by her own family, in particular her husband, and by a home help, and that notwithstanding the considerable disability of the Plaintiff this appears to have worked quite well, and the Plaintiff has been well cared for.

138. For the future, as I have already indicated, I can only consider the period up to January 2002. In my view the Plaintiff’s needs during that period are likely to be similar to the present. In her evidence Ms. Roche said that the Plaintiff would manage on the costing set out in Schedule 4 of her calculations, for the next two years. That would indeed cover the period up to January 2002. The total cost of this care for a full year period amounts to £66,699.00. What this figure encompasses is the replacement of the care now being provided by the Plaintiff’s husband and her children and the home help by others who would be paid on an hourly rate with the consequent knock on expenses such as PRSI, insurance and holiday pay. It is of course right that the Plaintiff should be compensated in respect of the cost of providing the care necessitated by her disabilities. However, I do not think that this can be approached on the basis of the entire financial cost of a complete replacement of her care. I am satisfied that in the ordinary course of events, family members and in particular those who are adults or near adults would provide some supervision and care as part of the ordinary pattern of family life. Thus I will allow a sum of £40,000.00 under this heading.

139. Having regard to the period in respect of which I am assessing damages, it would not in my view be appropriate to make any award in respect of the several items, of equipment dealt with by Ms. Barnes. Similarly, the cost of constructing an extension to the house, relating as it does substantially to the care of the Plaintiff in future years, beyond the period of assessments cannot be allowed.

140. This brings me finally to the question of the care of the Plaintiff in the years since 1994 to date. Undoubtedly a very heavy burden was placed on the family of the Plaintiff and in particular her husband. It is of course impossible to put an accurate monetary estimate on the real value of this care. I can however use the figures which were provided by Ms. Roche as a guide. On that basis and by way of an award of general damages under this heading I think it appropriate that the Plaintiff should be awarded the sum of £80,000.00.

141. A claim is made in respect of a sum of approximately £9,158.00 as a refund to the Voluntary Health Insurance company. I am satisfied on the evidence, that insofar as this sum represents the cost of the Plaintiff’s hospital care during 1994, it is due to the consequences of the fall and hence in my view the Plaintiff is obligated to repay this sum to the VHI and it is therefore recoverable as against the Defendants.

142. Thus there will be judgment against the Defendant for the totality of the foregoing sums amounting to £329,158.00.