High Court of Ireland Decisions

 
THE HIGH COURT

BETWEEN

DEIRDRE O'BRIEN VAUGHAN

PLAINTIFF

AND
JOSEPHINE LITTLE

DEFENDANT

Judgment of Mr. Justice de Valera delivered on the 11th day of August, 2003.

This action arose out of a collision between motor cars driven respectively by the plaintiff and the defendant on the 6^th August, 1999 at Colmoney, County Clare. The plaintiff suffered serious personal injuries, which, she claims, caused her continuing pain and suffering and interfered with her lifestyle and capacity to teach and perform as a musician.

There was no contest on the issue of liability and the action proceeded on the issue of damages only.

General damages

The plaintiff is a musician and teacher who is obviously held in considerable regard and esteem by her peers and admirers in traditional music. Clare music and musicians have an enviable reputation and I accept completely that the plaintiff was a prominent exponent and teacher of traditional music as has been described in Court.

I also accept that her injuries, in addition to causing her continuing pain and suffering have interfered with her musical endeavours (both teaching and performing) to a considerable extent.

These injuries were presented to me under the following principle headings.

1. Initial shock and distress.

2. Neck pain both left and right side

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3. Left arm pain.

4. Lower back pain.

5. Initial left chest/breast bruising.

6. Back problems resulting in

(a) Discectomy and

(b) Osteophectomy

7. Right ankle.

8. Nausea, diarrhoea and vomiting.

9. Psychological trauma, resulting in post traumatic stress syndrome.

Counsel for both plaintiff and defendant have asked me to consider the loss of the plaintiff's plans to set up and run an Irish Traditional Music Institute as a loss to be compensated for in general damages.

In considering the appropriate amounts to be awarded for general damages, I have had to refer to the so call "Cap" on amounts under this heading considered by the Supreme Court in Allen v. O'Suilleabhain and Mid Western Health Board (unreported Supreme Court judgment the 11^th of March, 1997).

And as considered subsequently in Keally v. The Minister for Health [1999] 2 I.R. (where the Court was not referred to the Allen and O'Suilleabhain decision) and Fitzgerald v. Treacy [2001] 4 I.R., which latter action has many features in common with the matter at present under consideration.

It should be pointed out that in the instant matter, the injuries, though severe cannot be categorized as "catastrophic injuries".

The plaintiff has suffered very serious pain and associated inconvenience. I accept her account of her trials in this regard and I particularly accept that these have had the effect, inter alia, of preventing her performing and enjoying her music up to January of 2003 and into the future.

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The plaintiff's difficulties in regard to her music are a combination of physical and psychological problems and it is evident from the evidence that the more the physical effects abate, then the lesser will these problems will impinge on the plaintiff's capacity to lead a full social and musical (including teaching) life. I accept the evidence that the plaintiff will, on the balance of probabilities, continue to suffer some ill effects into the future, but I also find, on the evidence before me that there is a reasonable probability that she will improve over the years to come.

I feel I should point out, however, that I have considerable difficulty in accepting fully the psychiatric evidence adduced on behalf of the plaintiff which I considered to be, at least, overstated as the patient described in that evidence could no be compared to the plaintiff who sat in Court giving evidence before me. However, I do accept, as I have already stated, that much of the psychiatric difficulties, such as they are, are tied to her physical limitations and when these improve so will the plaintiff's mental state.

General damages to date €100,000.

General damages into the future €80,000.

In deciding on these amounts I have

(a) accepted that the plaintiff has as result of her accident suffered severe pain and associated physical problems to date.

(b) accepted that the plaintiff has suffered considerable psychic trauma which is associated with her physical condition and the severity of which will abate as her physical condition improves.

(c) accepted that the plaintiff's physical condition will, with time, improve, but she is unlikely to ever regain completely her pre accident condition (allowing for the natural deterioration everyone suffers with the passing of time),

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(d) accepted that the plaintiff because of her particular talents and capacities has to use Ms. Ni Cheallaigh's, evocative phrase "lost her muse" and this is a special and significant loss for her.

(e) accepted that the plaintiff has lost the opportunity of continuing with her plans for an Irish Traditional Music Institute; but on the basis of a loss of a treasured cultural ambition rather than a financial loss.

(f) Considered the judgments cited above and in coming to my decision as to amounts, I have taken the view that in the special circumstances of this matter, where there are not "catastrophic injuries" in the accepted meaning of that phrase and where I have been asked by both parties, to include in the general damages any figure I think appropriate for the loss of the opportunity to develop the music institute under this heading, no "Cap" on general damages exists, other than as a general guideline.

Special damage

A figure of €9,095 has been agreed by the parties for special damage, other than

(a) Loss of earning to date and into the future.

(b) Future medical expenses (rhyzotomies).

Loss of earnings

Because of the absence of any satisfactory financial records, a decision under this heading is made very difficult. It should also be pointed out that the evidence, if it can be called that, about the plaintiff s domestic circumstances, is inadequate and by inference contradictory, and as the plaintiff s earnings, and subsequent loss of same, must be measured in the absence of proper records and in the light of her general lifestyle and personal and marital relationships with her husband, any suggested loss must be viewed critically.

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I believe that Mr. Lynch's view of the plaintiff's losses is not as convincing or reliable as that of Mr. Peilo.

I also find that, particularly as her mental and physical condition improves, the plaintiff's musical talents and teaching capacity would allow for at least a supervisory role in teaching music in the future.

Taking everything into consideration and because of the inadequacies of evidence referred to above (and this is a very inexact calculation) I think a fair basis to calculate the plaintiff's loss of earnings to date is at the rate of £250 per week for 40 weeks of the year (pre tax) amounting to £8,160 per year nett.

Therefore I calculate the plaintiff s loss of earnings to date of the trial to be £32,640 (€41,444).

As I have already indicated, it is accepted that the plaintiff will recover gradually into the future and I believe that as she improves her talents and her "muse" will allow her to gradually get back to teaching and performing, perhaps not to the same level as before but to some extent. For this reason I believe I cannot accurately measure the plaintiff's loss on a specifically actuarialized basis and it would be more appropriate to measure it on a lump sure basis for future loss of opportunity.

Loss of earnings into the future,€40,000.

Further medical expenses (rhyzotomies)

Again as I have indicated the plaintiff will improve but will probably require some further treatments. I will allow the sum of €7,750, the actuary Mr. Lynch's figures as given in evidence.

Therefore I award:

General damages € l80,000.

Agreed special damages € 9,095

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Loss of earnings to date, €41,444.

Loss of earnings into the future €40,000.

Future medical expenses €7,750.

These sums totalled amount to €278,289.00

And I give judgment in this amount.