High Court of Ireland Decisions

O'Neill v. Kenny [2003] IEHC 71 (24 October 2003)

 


THE HIGH COURT

2001 N0. 1004P

Between:

Margaret O'Neill

Plaintiff

And

Patrick Kenny

Defendant

Judgment of Mr Justice Michael Peart delivered the 24^th day of October 2003:

The plaintiff in this case, who is now aged almost 49 years of age suffered a low-back injury when the car which she was driving was hit on the passenger side by a car being driven by the defendant. It happened at about 1.40pm in the carpark of the hospital at which she worked as a Ward Attendant.

She was in some shock in the immediate aftermath of this accident, and went to the Casualty Department of that hospital, where she was examined and was diagnosed as having suffered a sprain to her back and she was prescribed some painkillers and was advised to go home and rest up. She took two weeks off work, but as there was no improvement she consulted her General Practitioner, Dr Joan Kearney. As the painkillers she had been taking were making her feel a bit unwell, she was prescribed Difene.

Towards the end of November 1999 she commenced some physiotherapy sessions. After each session she noticed some short-term improvement, but nothing long-term.

As a result of the pain and discomfort she was experiencing she was unable to help her husband on the family farm, which she was in the habit of doing previously, and her housework chores were also difficult, particularly hoovering and other heavier type of housework, and gardening.

Dr Kearney referred her to Dr Kelly, a Rheumatologist, and conservative treatment was recommended, including some exercises. She also saw Mr Joseph Mangan, Consultant Orthopaedic Surgeon in early January 2000 and he recommended that she keep to an exercise programme, but opined at that time that her injuries, which were soft tissue injuries should gradually settle down with the passage of time.

Prior to this accident the plaintiff was in the habit of walking five miles per day according to her own evidence, but says now that as part of her exercise programme she walks between two and three miles each day, but that this shorter distance now takes about the same length of time as five miles used to take her.

Mrs O'Neill was unable to return to her work at the hospital, since some of the work she did at the hospital as a Ward Attendant involves the lifting of patients, giving bedbaths, making beds and soforth. She has not been able to return to that work at all since the accident.

An MRI Scan was carried out in March 2001, and this showed a reduction of disc signal at L4/5 with slight bulging of the disc annulus, and at L2/3 and L3/4 intervertebral discs, there are slight right-sided disc protrusions without evidence of nerve root compression.

In his report dated 8^th March 2001, Mr Mangan states that as of that date she was complaining that she was constantly sore on the right side of her back, and that she was likely to continue to experience back pain into the future which would vary in severity from time to time and that she would have difficulty with vigorous physical activity. H e also expressed the view that her prospects of returning to full-time gainful employment were poor as of that date.

She also attended a pain specialist, Dr O'Flaherty who has been unable to produce any long term improvement, and when he saw her in September last he noted that she had disimproved. According to her evidence she can suddenly get a very painful spasm of pain in her back which is extreme, and in fact it was in September that she had two such occurrences.

The plaintiff's employers have said that she cannot return to her work at the hospital due to her back injury. Subsequent medical reports from Mr Mangan reveal no improvement over the years since the accident, and he continues to be of the view that she will not return to her previous employment, and that any full time job which involves sitting for prolonged periods, or driving any significant distance, such as to Galway, Ballinasloe, would be troublesome. This obviously impacts on the range of employment possibilities open to the plaintiff in the future, quite apart from the availability of suitable employment, either close to home or at any distance from home. Ms. Anne Doherty, a Vocational Assessor has given a pessimistic outlook as far as future employment prospects are concerned, even though the plaintiff has recently commenced a PLC Course to acquire some computer skills with a view to possibly taking up some work as a clerical nature in the future which would not involve any heavy lifting, but she will have the difficulty even if she was successful in getting such a job, that sitting at a screen for prolonged periods will continue to cause her back pain.

She applied for a job at the Portiuncula Hospital as a Ward Clerk but was unsuccessful, and also answered an advertisement for a clerical job in Galway City but was unsuccessful. She has also looked after a 3 year old child between the hours of 9.30 and 3pm. Her doctors were unaware of this fact, and have said that while it indicates some ability to cope, bearing in mind the normal activities of such a child, they would not have recommended it as suitable work for her. The defendants have suggested that these attempts by the plaintiff to seek work, and looking after this child, indicate that the plaintiff must herself feel able to work. But I am of the view that these attempts at work are consistent more with the type of person the plaintiff is. By that I mean that I have formed the view, which is borne out by her G.P and the Vocational Assessor that she is a person who enjoyed her work at the hospital a great deal and who would dearly love to return to some kind of work, rather than remain at home. She is a motivated and active person within the present limits of her capabilities, and these attempts at gaining work may represent the triumph of hope over any real expectation. I am satisfied on the evidence that it more probable that this plaintiff will not be able to gain any full-time or even part-time work of any permanence, than that she will do so, and while I do not rule out the slim possibility that some sort of part-time work may come her way, I cannot operate on the basis that it is probable. But I certainly hope that she can find something, because I believe she is the sort of person who would benefit from some outlet for her liking of work and her self motivation.

Time does not permit me to review every piece of evidence which I heard, but I am satisfied that the plaintiff is genuine. The medical evidence confirms her symptoms both subjectively and objectively, and I am satisfied that her low back pain will unfortunately continue to cause her difficulty for the foreseeable future, and that it will prevent her from getting any gainful employment of the kind I should take into account to any significant extent in my calculations, though I intend in an informal way in my award to recognise that being the highly motivated person I believe she is, that she will possibly pick up some informal type of employment from time to time as she may be able to find locally, or within a short distance from home, but this is not likely to be of much significance in the overall context of her life.

Special damages are agreed at €5464.

For past pain and suffering I award the sum of €30,000, and for the future the sum of €20000 taking into account her present age. Her past nett loss of earnings from the time of the accident to October 2003 are according to the evidence from her employers come to €66500. According to the actuarial evidence, she will suffer a pension loss at age 65 which is capitalized in the sum of €10680, and a loss of gratuity capitalized in the sum of €7900.

According to the evidence of her employers her nett weekly wage was €400 and the multiplier on the basis that she does not work again is 647, which gives a figure of €258800. I have been informed also that a sum of €6300 has been received by the plaintiff by way of Social Welfare Contributions, and I deduct that sum from those just referred to. The total of these sums, in which I have made some small allowance in the general damages for the prospect of some slight work coming the plaintiff's way, and looking at the entire sum in the round, as it were, comes to the sum of €393044, and give judgment in that sum.