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Cite as: [2003] IEHC 28
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Curley v. Dublin Corporation [2003] IEHC 28 (9 July 2003)
1998 No. 10678P
BETWEEN
PLAINTIFF
DEFENDANTS
JUDGMENT of Gilligan J. delivered on the 9th day of July, 2003.
The plaintiff in these proceedings is a fire fighter by occupation and was born on 6th May, 1960. He is married with three children. He was employed by the defendant and had eighteen years of service at the time when he was involved in the accident the subject matter of these proceedings which occurred on the 16th January, 1998 in circumstances where the plaintiff was a passenger on a bench seat immediately behind the driver in a fire tender which while responding to an emergency situation was involved in a collision with two parked cars at traffic lights at the junction of the Naas road and Killeen road Clondalkin, Dublin.
The case is one for an assessment of damages only subject to a plea of contributory negligence on the basis that the plaintiff failed to mitigate his losses if any by reason of his failure to seek light duties within the fire service, failing to apply to the Chief Fire Officer for such light duties, failed to apply for promotion within the fire service, took a decision to terminate his employment with the defendant in March or April 2001 without taking any steps as outlined above to remain in his employment, failure to take any or any proper steps to maintain his employment with
the defendant at any material time and caused or allowed his employment to be terminated.
An issue arises as between the plaintiff and the defendant as regards the nature and severity of the impacts which occurred between the fire tender in which the plaintiff was a passenger and the two separate vehicles. I take the view that the probability is that the two impacts insofar as they involve the defendants tender were not all that severe because it follows that the two vehicles that were stopped at the traffic lights at the Killeen road junction were no match in weight terms for the fire tender and it is clear that the impact damage to both vehicles was in respect of the first impact to the vehicle to the right of the fire tender along the near side of that vehicle and in respect of the second impact to the vehicle to the left of the tender the damage was along the offside of that vehicle. Both vehicles ended up adjacent to the fire tender as demonstrated in the Garda sketch map which was agreed between the parties and the rear of the fire tender was only three yards beyond the stop line. It is somewhat uncertain as to what precisely occurred in respect of the brakes on the fire tender but I am satisfied on the evidence available that if the brakes did fail then an automatic brake locking device would come on and clearly this appears to have happened having regard to the result of the investigation as carried out by Cathal McGuire Consulting Engineer who gave evidence on the defendants behalf.
Notwithstanding that the impacts may not have been all that severe I am satisfied on the evidence adduced before me that the plaintiff did suffer personal injuries consisting of shock, stress and an injury to the left side of his neck and left shoulder area.
The plaintiff has described in great detail the nature and extent of the injuries as suffered by him and there continuing effect. Immediately following the impact the
plaintiff noticed stiffness of his neck and left shoulder and was taken by ambulance to St. James's Hospital where he was prescribed Aulin. No x-rays were taken and he was in hospital for approximately four hours and then despite being offered a lift home decided that he would drive his own car and went home. The following morning his neck was stiff and painful and he went to see his GP Dr. Coovadia. He was subsequently referred to the Butterfield clinic and commenced physiotherapy. He moved house to Newbridge in July 1998 and this is a new house having been purchased prior to the accident. He then came under the care of Dr. O'Donnell and Mr. Bruce Bough Orthopaedic Surgeon. He was out of work undergoing extensive physiotherapy and in general terms the plaintiff describes how he became depressed, irritable, withdrawn, didn't feel well and by 2nd October, 1998 the plaintiff had instituted proceedings in this court claiming damages for personal injuries. The plaintiff has received extensive treatment by way of physiotherapy, injections, medication and manipulation of his neck under general anaesthetic from Mr. Bough and he has continued to complain of paraesthesia down his left arm with a numb sensation in the left thumb and index finger. He continues to complain that his neck and shoulder pain is exacerbated by lifting, prolonged sitting, driving and is relieved by changing position. The plaintiff describes his condition as causing him on occasions crippling pain. Against a background of continuing complaints and extensive treatment the plaintiff was out of work from 16th January, 1998 to 6th September, 1998 when he returned to work. He remained at work until 29th November, 1998 taking only two days of sick in between. He was then out of work for approximately three months returning to work on 26th February, 1999 having taken only one day off sick in between. He was then out of work for approximately three weeks from 30th April, 1999 to 19th May, 1999 taking one day off sick. He went
out of work again until 31st August, 1999 until in or about 6th June, 2000 when he returned and remained at work until 31st March, 2001 taking six days off sick in between. He was then out of work until 10th December, 2001 when he was retired on the grounds of permanent ill health from the fire fighting service.
Mr. Bruce Bough Orthopaedic Surgeon fully accepts the plaintiff's subjective complaints of pain and paraesthesia with a psychological component and he took the overall view that he was unable to certify the plaintiff as being fit for all duties that would be imposed on an active fire-fighter. He indicates that he was provided with a work specification for the plaintiff in or around April 2001 and while this work specification may not necessarily have come from the defendants it does appear that there was no great dispute that it is a reasonable outline of the duties that are to be preformed by an active fire-fighter and Mr. Bough took the view that the plaintiff was not fit in his own right to carry out all the duties as outlined to the full extent. He was of the view however that as of the time of the plaintiffs retirement from work as a fire-fighter he could have remained on with the assistance of his work mates, would have been medically fit to have worked as an instructor carrying out some fire fighting duties which would fall short of full fire-fighting duties and also would have been fit for light work. He accepts that in general terms as of the date of the plaintiffs retirement he would have been fit for most forms of work that did not involve heavy physical activity. He appreciates that Dr. Mac Grogan had no option but to retire the plaintiff having regard to his inability to carry out his full duties as a fire-fighter against the background where he accepted that he had been able to keep the plaintiff at work in a slightly protected environment.
Mr. Bough takes the view that the plaintiff has been left with a chronic residual disability aggravated by increased active use of the left arm and relieved by
resting it. Given that five and a half years have elapsed since the accident he takes the view that it is unlikely there will be any improvement in the present level of the plaintiff's symptoms and that his future management will involve control of pain by analgesics physiotherapy and how the plaintiff is dealt with in the future will remain to be seen. He takes the view that the very position which the plaintiff adopted immediately prior to the accident was one which in the particular circumstances exposed him to a significant risk of the actual damage that he sustained and it was unfortunate that the foramen was already narrowed at C5 and C6 and this is what resulted in the impingement. He took the view that the nerve roots were under maximum tension at the time of the crash and this was a significant factor against a background where the plaintiffs left arm was in the wrong place at the wrong time. He says that there is objective evidence to back up the plaintiff's complaints and he found this when he carried out the LV test. He saw no reason why the plaintiff should not undertake light work. He took the view that the plaintiff's soft tissue whiplash type injury had cleared up and his ongoing chronic symptoms were from the nerve roots being irritated at the C5 and C6 level and this was caused by the trauma and these symptoms will last long term into the future.
Mr. Bough indicated that the manipulation procedure which he carries out releases the scar tissue which he says never goes away. The ends of the adhesion remain there and they can stick back together. He accepted that the principle reason for carrying out the manipulation was curative and this was an extremely effective treatment programme and this is entirely standard. He indicated that Mr. Sheehan had previously carried out manipulation treatment, and that he felt that the manipulations he carried out on the plaintiff helped to get him back to work. He says the work caused problems for the plaintiff and was not necessarily a distraction from pain. He
refers to the fact that the plaintiff coming out of work in November 1998 at a time when he had been working with a sledge hammer. He says he never stopped the plaintiff from working and never took him our of work and he tended to support him being at work. He takes the view that the plaintiff's complaints matched exactly the symptoms. He indicated that initially he thought this was simply a soft tissue injury but subsequently became concerned and it was when the MRI scan was carried out he realised that the plaintiff's nerve roots had probably been effected by the accident. This was clarified for him by Brian O'Moore Consultant Neurophysiologist whose report confirms that there was no compression as such. He referred to the fact of the plaintiff applying for the job of instructor with the fire service and that when he did not get this job it had a bad effect on him psychologically. It was around this time that he was given the work specification and he accepted that if he had not been given this particular document he probably would have certified the plaintiff as fit for work and certainly would have attempted to have got him back to work. In clarifying the nature and extent of the plaintiff's nerve irritation he took the view that there were mild symptoms and that perhaps with 99% of occupations a person could continue at work and would be ok but in this particular situation where the plaintiff was a fire-fighter, it was not possible for him to continue in this occupation. He accepted that the symptoms would vary from time to time and further accepted that this was a most unusual case. He took the view that the brace as prescribed for the plaintiff allowed him to function at a better level while working with a computer. He expressed some degree of surprise at the fact that the plaintiff in September 2001 went off to the Costa Del Sol with three friends for a weeks golf and I interpret his evidence in this regard as being surprise at the fact of the plaintiff going off for the week's golf relative to the complaints he was making to him.
Professor Cleary carried out a number of examinations on the plaintiff and found very little wrong with his neck and left shoulder area and he felt that there was a considerable anxiety/functional/emotional overlay in this case which has slowed recovery and was also responsible for the headaches and the chest pains which in professor Cleary's opinion are not directly related to the injury. It is of some significant interest that when Professor Cleary examined the plaintiff on 8th March, 2001 he says there were no abnormal findings and the plaintiff's symptoms were subjective and he would have felt that it was reasonable for him to have continued at his work. This is against a background where some short time previously the plaintiff had attended a fire at the nightclub off Grafton St. and in April 2001 was indicating to Mr. Bough that he was not fit for his fire fighting duties and had furnished Mr. Bough with the work specification and also the plaintiff had been referred to Paula Smyth Vocational Assessment Officer. Professor Cleary felt on an overall basis that there probably was a certain amount of exaggeration by the plaintiff of his symptoms and that the reality was that he was probably exaggerating the subjective symptoms and these were largely based on the pre-existing degenerative changes. He felt that the plaintiff was likely to require continuing medication for pain but not physiotherapy or health club activities and he felt the same result would likely be reached with a good programme of home exercises.
Mr. Sheehan Orthopaedic Surgeon examined the plaintiff on 9th April, 2002 and he found that full flexion was available to the plaintiff but he was uncomfortable at the end of the range of movement. He says that he carried out full neurological testing and that these tests were all normal. He accepts that the plaintiff had pins and needles going down into the area of his left thumb and that this is probably due to irritation of the sixth cervical nerve root. Of significance is the fact that he says there
was no loss of sensation. The plaintiff's x-rays were all within normal limits for his age group and the MRI scan results would be very common for a large group of people and in his view were not of any major significance. He specifically refers to the fact that there was no compression in this case and no bony problems. He takes the view that treatment for the type of injury sustained should probably continue for approximately two years but after this period of time usually would not be very satisfactory. He would emphasise a return to daily living, physiotherapy, keeping active and if possible a return to work provided that the plaintiff can cope with the work and in many ways distraction is the best form of therapy. He would never manipulate a neck under general anaesthetic being the treatment as carried out by Mr. Bough. He would only carry out this type of treatment if somebody suffered a dislocation of their neck. He said that effectively the plaintiff had no subjective findings but he would accept the plaintiff at face value but his entire complaints were based on subjective symptoms. There was nothing in the findings as carried out by him that would have led him to have certified the plaintiff as unfit for work. He accepts that the plaintiff suffered nerve root irritation and that a severe compression of the sixth cervical vertebra can lead to difficulties with tasks involving dexterity and a persons reflexes can be at risk but these objective signs were not present in the plaintiff's case. He says that objectively the plaintiff had zero symptoms and subjectively he had irritation of the nerve roots. He considered it significant that originally the plaintiff had no nerve root irritation and that after a period in bed his neck symptoms became worse. He felt this period of immobilisation probably worsened the plaintiffs symptoms and it was not for a period of six weeks that he first noticed the paraesthesia down his left arm.
Mr. Sheehan was not really satisfied that the paraesthesia was associated with the accident and felt that the plaintiff may have lain in an awkward position. His reading of the situation was that the plaintiff had a tendency to this condition although not directly related to the accident he accepts it was hastened. He felt there was a degree of functional overlay and that the level of symptoms were out of keeping with the physical findings. He felt that the symptoms were not in keeping with the nature of the accident and overall the plaintiff in his opinion had very little symptomatology and he would describe the symptoms as very slight. With reference to the plaintiff having been prescribed a brace he would never prescribe a brace in the particular circumstances and would suggest that the plaintiff should not use a brace. He felt a brace was for use for people who were suffering from paralysis and he could not see any purpose for the plaintiff using a brace especially against a background where there was no neurological disability. He saw no role for any future treatment apart from analgesics on an intermittent basis. He did not see any future role for physiotherapy although maybe one or two sessions from time to time may be necessary if the nerve root was troublesome and there was objective evidence that physiotherapy could be helpful.
Mr. Sheehan saw no role for a compression of the nerve and felt that this option was unlikely. He indicated that he would have given no restrictions whatsoever in relation to the plaintiff's return to work but in cross-examination he did accept that he would have to take the plaintiff in trust and if he indicated that he was not able to go back to work he would accept such a situation although he reiterated that there was no objective finding in this particular instance. He took the view that the plaintiff adopted the optimum position in the fire tender to minimise any damage and as a result of the position he took up he did minimise the accidental forces. He
would take the view that there was very little energy generated in the fire tender and once the plaintiff was in the brace position his helmet was ahead of him and it would have absorbed some of the energy. He explained that the helmet the plaintiff was wearing is on a leather sling and hopefully would have had a very satisfactory effect.
There is a clear issue of fact in relation to the position as adopted by the plaintiff while travelling as a passenger in the defendants fire tender. Mr. Bough took the view that the position as adopted by the plaintiff was the worst possible as it rendered him more vulnerable to injury whereas Mr. Sheehan takes the opposite view and in this regard I prefer the evidence of Mr. Sheehan Orthopaedic Surgeon that the position as adopted by the plaintiff was the best possible in the circumstances to minimise the potential of damage and that his helmet would have absorbed some energy in the accident itself and as indicated by Mr. Sheehan hopefully had a very satisfactory effect.
Mr. Sheehan took the view that the plaintiff osteoarthritic changes were very minimal but that the plaintiff would have to be battle fit to be a fireman. He took the view that the plaintiff's nerve root irritation could be caused either by the soft tissue injury or by the narrowing of the foramen and the spondylitis which pre-existed the accident. He accepted that the plaintiff could probably could have gone on working to age 55 or 60 as a fireman but for the accident. He took the view that into the future the plaintiffs situation could very well ease up and he could be left with intermittent paraesthesia which could be relatively well controlled. He saw some role for future analgesia as necessary.
Insofar as the plaintiff's physical injuries are concerned it appears to me that the essential difference between Mr. Bough and Professor Cleary and Mr. Sheehan is one of emphasis and prognosis but insofar as there is conflict on the evidence I prefer
the views as expressed by Mr. Sheehan and Professor Cleary. I take the view that Mr. Bough's future prognosis is much too pessimistic arid I prefer the view of Mr. Sheehan that in the future the plaintiffs situation could very well ease up and while he may be left with some degree of intermittent parasthesia this could be relatively well controlled.
As regards the plaintiffs medical capacity for work, Mr. Bough took the view as of the Autumn of 2001 that the plaintiff could have remained on at work with the assistance of his workmates, would have been medically fit to have worked as an instructor carrying out duties that fell short of full fire fighting duties and also would have been fit for light work. He accepts in general terms that as of the date of the plaintiffs retirement he was fit for most forms of work that did not involve heavy physical-activity. Mr. Sheehan's view as of April 2002 was to the effect that there was nothing in his findings on examination that would have led to him certifying the plaintiff as unfit for work and also in this regard there is the significant finding by Professor Cleary on the 8th March, 2001 that there were no abnormal findings, that the plaintiff's symptoms were subjective and that he would have felt that it was reasonable for the plaintiff to have continued on at his work.
With regard to the plaintiff's medical condition I also note the views of Dr. B.C. O'Moore Consultant Clinical Neurophysiologist as contained in his report of 28th June, 2001 wherein on his examination of the plaintiff neurological examination was normal as were electrical studies of the left upper limb. He notes that the MRI scan did not show evidence of neural compromise and then goes on to state "I would think that the patients head and left upper limb symptoms are due to left cervical nerve root irritation". Having regard to the fact that the onus on the plaintiff is to satisfy the court on the balance of probability it is quite clear that Mr. O'Moore as an expert in
his field found no neurological deficit and at best can only say that he thinks that the patients head and left upper limb symptoms are due to left cervical nerve.
As regards the plaintiffs psychological complaints the medical reports of Mr. Lowe and Mr. Glanville were agreed and neither was called to give evidence before the court. I do not consider it necessary to set out in any great detail the content of the medical reports as furnished to me. It is clear from the reports of Mr. Lowe that the plaintiff was particularly embittered as regards the manner in which he was treated by the defendants and that in particular he had been a good fire officer and had taken risks within the job and he felt that there was no recognition given for these years of service and that he acted at the crash site initially as a fire officer and then only as an injured victim and that little recognition had been made of this fact. He felt bitter and disillusioned at the poor rapport from senior officers. The plaintiff himself complained to Mr. Lowe as of July 2001 that when he was in pain and that he had become irritable and could become abrupt with his wife and children and that he was fearful of his future. The plaintiff did not take his retirement well and he felt that nobody cared about what happened to him. Mr. Lowe was of the view as of October 2002 that if the plaintiff's physical condition were to improve he would also be in better form mentally. He accepts that the plaintiff suffered a degree of post traumatic stress disorder following the accident but appeared to have made a recovery from this aspect within a few months of the accident itself and then subsequently the plaintiff appears to have become depressed because of his perceived inability to carry out his fire-fighting duties leading to his eventual retirement from the fire service.
Mr. Brian Glanville Director of Psychology Northern Area Health Board saw the plaintiff in March and April 2000 on the defendants behalf and he comes to the conclusion that at that time the plaintiff had psychological symptoms but
psychometric assessments suggested that apart from a mild level of depression the plaintiff was not suffering from any significant trauma related symptomatology. In his view the ongoing psychological difficulties were primarily related to the plaintiffs inability to resume his former employment because of the pain associated with his psychical injuries and that the emotional loss for the plaintiff in not being able to work was substantial. The plaintiff indicated to Mr. Glanville that he had a sense of disbelief that it was all over following his retirement on medical grounds from the fire service in December 2001.
Mr. Glanville was inclined to the view that the plaintiff was continuing to experience a mild level of depression but was making progress and adjusting to his new life situation. He was not suffering from any significant psychological trauma symptomatology and his principle psychological difficulties continued to arise directly from the pain/fear of pain and physical limitations imposed on him by the injuries to his shoulder and back. His success in developing a new career occupational path would give the plaintiff a sense of achievement and would be important to him in his long term emotional adjustment.
The overall view which I take on the evidence adduced before me is that the plaintiff suffered a relatively mild whiplash injury superimposed on pre-existing degenerative changes and that he suffered a degree of nerve root irritation. He also suffered a post traumatic stress reaction to the circumstances of the accident from which he recovered within a few months and he is left with a mild degree of depression most of which is related to his perceived inability to carry out his duties as a fire fighter which situation clearly was not helped by his being retired on grounds of ill health in December 2001. A combination of the physical and psychological injuries appear to have brought about a situation where the plaintiff had difficult in
carrying out his full duties at work and he received extensive medical treatment and while there is a difference of opinion as regards the nature of the treatment afforded to the plaintiff I take the view that the treatment as performed by Mr. Bough for the plaintiff and the treatment as advised by him was done so by him using his best professional judgment. In this regard I prefer the views as expressed by Professor Cleary and Mr. Sheehan and in all the circumstance I take the view that any future treatment will be minimal and insofar as a claim is made for future treatment I propose to build in a small allowance for this treatment into the figure for future general damages. The basis upon which I do so is that the plaintiff may require some level of physiotherapy in the immediate future and analgesia from time to time. My overall conclusion is that this plaintiff suffered a mild whiplash injury and minor psychological trauma. I appreciate that the plaintiff is certified as 40% disabled by the Department of Social Welfare but I take the view that I have to decide this case on the evidence adduced before me. I take the view that Mr. Bough has been unduly pessimistic as regards the plaintiff's future and my view on the evidence is that the plaintiff may be left with some intermittent discomfort in his left arm but his condition could very well ease up.
In these circumstances I award the plaintiff €35,000 general damages to date and €40,000 general damage into the future which includes a small allowance for any potential future treatment and medication to a total of €75,000.
I take the view that the plaintiff is entitled to recover miscellaneous medical hospital expenses to date in the sum of €2 1,007.72. This is the figure that was agreed as to amount only and I note that of this figure only €5,044.44 was actually agreed as allowable but in general terms I take the view that Mr. Bough using his best professional judgment was by and large responsible for the treatment and advices as
rendered to the plaintiff and I take the view, in all the circumstances that to date the plaintiff should be allowed these out of pocket expenses.
I take the view that the plaintiff is entitled to his agreed loss of earnings even though these are as to amount only from 16th January, 1998 to 10th December, 2001 in the sum of €34,000 less €12,000 paid to the plaintiff over a five year period by way of social welfare leaving the plaintiffs net claim in this regard at €22,000.
The situation from the 10th December, 2001 onwards is very far from straight forward and it is in this regard that the defendants plea of contributory negligence on the basis of the plaintiffs failure to mitigate his loss is relevant. In broad terms I find it very difficult to comprehend against a background of the "reasonable man" principle as to why the plaintiff embarked from in or about March or April 2001 on a path that was inevitably going to lead to him being retired from the fire service. It may be that he took the view that if he was retired from work he would recover a full loss of earnings into the future together with any loss of pension rights and gratuity entitlements. It may be that he felt that he was a burden on his colleagues and he preferred simply not to continue at work. The onus of proof is on the plaintiff to satisfy the court on the balance of probabilities that his injuries caused or were a principal factor in the plaintiff losing his job and the onus of proof on the defendants insofar as they allege contributory negligence is to satisfy the court on the balance of probabilities that the plaintiff failed to minimise his loss by taking the appropriate steps to protect his position and keep his job. A crucial finding is as to whether or not I take the view that the plaintiff has satisfied me that he was unfit for full fire fighting duties and I am inclined on balance to accept as a matter of probability that the plaintiff was not fit for the full rigours of everyday fire fighting duties. I take the view however that the plaintiff was fit for most forms of work save those which
involve very heavy physical activity and that the plaintiff was fit to remain on at work if he could get some degree of cover from his colleagues, was fit for work as an instructor which job he was actively seeking but failed to get in March 2001, and was fit for light duties. I am satisfied that there was a lack of communication between management and the fire-fighters and I am left to conclude that this whole area was unsatisfactory in that there was an ad hoc scenario where a number of people would be allowed to remain on as fire-fighters and were described as the "walking wounded" and there was also provision for persons to remain on doing light duties but the modus operandi as to how one went about getting these jobs was far from clear.
I am satisfied that the plaintiff did not act as would be expected of "a reasonable man" and fell short of the standard of care as a matter of law vested in him to minimise his loss. At its simplest I fault the plaintiff for not using the means at his disposal to keep himself in the employment of the defendants. He should have furthered his inquiries about staying on either as part of the "walking wounded" or in doing light duties. He did apply for the instructors course and clearly must have felt himself capable of carrying out this work but unfortunately in or about March 2001 he appears to have been unsuccessful in securing that position. He could and should have sought the views of Mr. Bough as to the level of duties which he could have carried out. He should at least have visited the Human Resources Department of the defendants to try to protect his position or at least ascertain what was available to him by way of work on an ongoing basis. He could and should have sought the advice and help of his Trade Union to intervene on his behalf to protect his position.
The converse situation from the defendants side is that they did little to assist the plaintiff and it does appear that there were certain procedures in place which if implemented may have assisted the plaintiff in securing light duties and the reality
of the situation on the evidence adduced is that because of a breakdown in communication nothing was done to assist the plaintiff and the defendants appear to have been only too willing to cooperate fully with the plaintiffs intended plan of action which was to secure his retirement from the fire fighting service on the grounds of ill health towards the end of 2001. I find the plaintiff guilty of 40% contributory negligence but the matter is not as simple as making a straight apportionment because I am satisfied on the evidence that the plaintiff could have remained on to this day on sick leave and his only loss would have been one sixth of his salary, and payment in respect of overtime which on agreed figures averaged €3,726.08 in the year 2001, €3868.44 in the year 2002 and approximately €2,566.63 in the year 2003 based on a figure of €1069.43 average from January to May 2003.
One sixth of the plaintiff's earnings from the time of his retirement to the present time has been calculated in an agreed sum of €12,379.43 together with on my calculation €3,868.44 overtime for the year 2002 and €1,069.43 to date thereby making a total in this regard of €17,3 13.70. These figures demonstrate how serious the situation was for the plaintiff to embark on a course which led to the termination of his employment. The agreed figure for the total loss for this period is €51,094.00 and from this figure I propose to deduct 40%. I also propose to factor in the plaintiff's capacity for alternative employment as found by me on the evidence and in all the circumstances I award the plaintiff €25,000 loss of earnings for this period.
The situation from this point on is less clear because I am satisfied on the evidence that because of an ongoing review it is by no means certain that the plaintiff because of his medical condition could have stayed on until the agreed retirement age of 55 as a fire-fighter with the defendants. It does appear that inevitably the plaintiff could well have been let go but I am not satisfied on the evidence as to when this
would have taken place but it does appear to me that in all the circumstances it would be unfair to penalise the plaintiff by reducing his continuing claim for future loss of earnings by 40% because that situation could have only come into place if I was satisfied that the plaintiff would have remained on with the defendants to the agreed retirement age of 55. The plaintiff is presently aged 43. He will retire at the agreed age of 55 and accordingly would have 12 years of service left. Doing the best I can on the evidence I take the view that it is reasonable to come to the conclusion that the plaintiff could have remained on in employment with the defendants for a further three years but then as a probability would have lost his job by being retired on the grounds of ill health because he was not fit for the full rigours of all fire fighting duties.
Accordingly I propose to approach the claim for future loss of earnings on the basis that for the first three years of the twelve years of service that are left to the plaintiff up to age 55 he could have remained on in employment with the defendants and I would allow the plaintiff a loss for this period taking into account his capacity to take up employment and gain remuneration from an alternative source, and the fact that I come to the conclusion that he contributed to the extent of 40% in bringing about his own retirement from the defendants employment in failing to mitigate his loss. Beyond this three year initial period however I do not propose to penalise the plaintiff with any reduction for contributory negligence because I take the view that as a probability he would have been let go following the review as referred to by Mr. Allwell in evidence. I propose to allow for a Reddy v. Bates factor although I accept the plaintiff was in secure employment and was very highly thought of. I assess this factor at 5% to take into account the risk of unemployment, redundancy, illness, accident or the like.
If the plaintiff was still a fire-fighter with the defendants he would be earning approximately €715 net per week. It is agreed that he would have worked on until age 55 and further that the appropriate multiplier assuming a normal retirement age of 55 is €535 per €1. The consulting actuary John Byrne in the agreed actuarial report of the 28th May, 2003 working off the figures as set forth by Paula Smyth Vocational Assessment Officer on the plaintiffs behalf sets up a claim for €220,420 on the basis of the plaintiff obtaining employment in the future at €303 net per week. I do not accept that the plaintiff will only be capable of earning €303 net per week. I have to have regard to the background factual situation whereby the plaintiff was able to continue on at this work for long periods against a background where he may have had some difficulty with full fire-fighting duties. I note in particular that the plaintiff was able to attend a major fire at a night club in Dublin off Grafton St. in February 2001, crawled through a basement area to access gas cylinders and spent four hours up a fire ladder utilising a fire hose in an attempt to extinguish a serious fire. I accept that the plaintiff says that he was in considerable pain and that he had to spend a number of days resting in bed afterwards but he did not actually miss any time from work, and nowhere does he indicate that he had any particular difficulty in actually performing the duties required of him. He did not seek any medical advice following on this situation. He also appears to have been able to play his golf and travelled in September 2001 to the Costa Del Sol with three friends for a weeks golf and also travelled aboard on a number of family holidays. Subsequent to the loss of his job he travelled to New York to represent the defendants at the annual St. Patrick's Day Parade in March 2002. I accept Mr. Sheehan's view that it appears that there is no reason why the plaintiff could not undertake his golf and yet the plaintiff indicates that soon after his trip to the Costa Del Sol he ceased playing. I also particularly note
Mr. Bough's expression of surprise against a background of what he was being told by the plaintiff, that the plaintiff had actually taken off to the Costa Del Sol for a weeks golf. This can be contrasted with Mr. Sheehan's view that he saw no reason why the plaintiff should not be playing his golf. I cannot accept on the medical evidence that there is any justification for the plaintiff to be wearing a brace or that he is restricted to working at a one armed computer. I fully accept Mr Sheehan's medical evidence in this regard and I reject any contrary evidence.
I do not accept that the plaintiff is as such in any way significantly handicapped from taking up alternative employment other than employment which involves very heavy physical activity. I do not accept that the plaintiff is making sufficient effort to get himself back into employment and I take the view that the probability is that he will take up employment once this case is finished. He may well not earn €715 net per week but I believe on the medical evidence that he will as a probability earn more than the €303 net per week. I am not impressed by the evidence of Mr. Michael Durkan. I take the view against the medical evidence which I have accepted that he is adopting a very negative attitude with regard to the plaintiffs employment prospects especially when he has formed the view that the plaintiff is very enthusiastic, very willing, very positive and constructive and very keen to get back to the workplace. I reject his assessment of the plaintiff, that he will always have to work at a lesser rate than an able-bodied man. On the evidence, that view can only pertain to a situation where the plaintiff was required to carry out work involving very heavy physical duties. I take the view that Ms. Paula Smyth's evidence is predicated on the basis of what she was told by the plaintiff of his capacity for work and she clearly was not advised that medically the plaintiff was fit for work save for that which involved heavy physical activities. I am left to come to the conclusion that
the plaintiff as a probability will secure employment but I am not satisfied on the evidence as adduced as to the precise nature of that employment or as to the level of remuneration that the plaintiff will derive therefrom. Insofar as the plaintiff has been complaining about the necessity to wear a brace while working at a computer I take the view that he does not need to avail of a brace in the particular circumstances arid this factor leads me to believe that the plaintiff is exaggerating the nature and extent of his left arm disability which on the medical evidence, which I accept, is that of intermittent mild paraesthesia going down his left arm which can be well controlled by analgesiae and which may well ease up.
While I have been given the benefit of certain agreed figures and an agreed actuarial multiplier the reality of the situation is that I do not have before me sufficient acceptable evidence to be in a position to apply a multiplier to any particular figure and I can only use the multiplier as a guideline. In the circumstances of this particular case the onus is clearly on the plaintiff to satisfy me with sufficient probability of particular figures and thus in doing the best I can to be fair to both sides I accept that the plaintiff would currently be earning in the region of €715 net per week. I take the view that the plaintiff will as a probability obtain employment in the future and that he will not earn less then €303 net per week. I accept the agreed multiplier of €535 per €1. I bear in mind the situation which I have previously referred to where I have held in respect of the first three years of the claim for future loss of earnings that the probabilities are that the plaintiff would have remained on in the employment of the defendants and that he is 40% responsible for the termination of his employment in having failed to minimise his loss during this period but I am not penalising the plaintiff following this first three year period in relation to his claim for continuing loss of earnings. I take the view in all the circumstances that the appropriate figure to
be allowed to the plaintiff for future loss of earnings is the sum of €150,000 from which figure I propose to deduct 5% having regard to the factors as set out in Reddy v. Bates and accordingly the plaintiff is entitled to the sum of €142,500 in respect of future loss of earnings.
The plaintiff also claims the loss of pension and loss of gratuity entitlements. I have to bear in mind that if the plaintiff had remained on in the employment of the defendants for the first three years the relevant period for the calculation of the claim for future loss of pension and gratuity entitlements for its first 3 year period the probability is that his claim in this regard would be less and I also have to bear in mind the finding of 40% contributory negligence which equally applies in respect of the plaintiff's claim for loss of pension and gratuity entitlements for the first three year period. Since I take the view that as a probability the plaintiff will obtain future employment and will not earn less than €303 net per week it would appear to follow that he will secure employment which will entitle him to some degree of a pension entitlement and some degree of gratuity entitlement at the termination of whatever employment he takes up. The maximum sum claimed by way of loss of pension is €99,548 and in respect of loss of gratuity €37,215. I take the view in all the circumstances that it is fair and reasonable to allow the plaintiff €49,774 in respect of loss of pension entitlement and €18,607 in respect of the plaintiff's claim for loss of gratuity. I take the view that the Reddy v. Bates factor equally applies to this claim and I propose to reduce these figures by 5% accordingly thereby allowing the plaintiff €47,285 in respect of his claim in respect of his pension entitlements arid €17,676.00 in respect of loss gratuity entitlements.
For the sake of clarity in this regard I take the view that section 2 of the Civil Liability Amendment Act 1964 provides that the plaintiffs pension and gratuity
entitlements will not be taken into account in assessing the plaintiff's claim for loss of earnings as they occur in consequence of the plaintiff's injury. Accordingly I award the plaintiff the sum of €350,461.72 damages in respect of the personal injuries as sustained by him made up as follows:
1. General damages €75,000
2. Special damages to date €21,000.72
3. Loss of earnings to date of retirement €22,000
4. Loss of earnings from date of retirement to date €25,000
5. Future loss of earnings €142,500
6. Future loss of pension entitlement €47,285.00
7. Future loss of gratuity entitlement €17,676.00