High Court of Ireland Decisions

O'Connor v. O'Driscoll [2004] IEHC 19 (23 February 2004)

 
THE HIGH COURT

2001 16312p

BETWEEN

PAUL O'CONNOR

PLAINTIFF

AND FACHTNA O'DRISCOLL

DEFENDANT

Judgment delivered by Ryan J. on the 23^rd February 2004

The plaintiff Mr Paul O'Connor is married with three children. He lives in Cork. He is by occupation a senior bank executive with Bank of Ireland. He was born on the 3^rd June 1951 so he is now aged 52 years. He sustained injuries in an accident on the 14^th September 1997. Liability is not in issue and the action is accordingly an assessment of damages.

The case is highly unusual. The physical injuries sustained by the plaintiff were soft tissue damage to his neck and low back as well as some relatively minor damage to three upper teeth on the left side. The plaintiff in addition to these physical injuries also underwent a severe psychological reaction to the accident. Within a few weeks of the accident he developed a very serious Post-Traumatic Stress Disorder. He has also suffered from a major depressive illness and his condition has been complicated by generalised anxiety disorder.

The combination of physical and psychiatric illness which continues to afflict Mr O'Connor has had a devastating affect on his health and well-being. He has not worked at the bank or at all since the 27^th January 2003. He suffers severe physical pain and discomfort. He is depressed. His Post-Traumatic Stress Disorder continues more or less unabated. The prognoses for his various aliments are gloomy. He is not going to be able to get back to his banking job or even similar work. It is going to take some considerable time before there is a prospect of any work on the horizon.

There is no serious dispute among the doctors. The plaintiff's experts are his General Practitioner Dr Frank Matthews, a Consultant Rheumatologist Dr Mark Phelan and a Consultant Psychiatrist Dr David Walshe. These are his treating doctors. He also attended a vocational expert Dr Martin Hogan for assessment. The defendant's doctor was Dr David Dunne, Consultant Psychiatrist. There is no significant area of disagreement between these experts.

Having regard to the evidence and to the submissions, the following matters are not in dispute in this case:-

1. The plaintiff was an ambitious and highly successful bank executive prior to this accident;

2. He had and has enormous drive and thirst for success and his personality is A1 or alpha male to a very high degree;

3. In the accident, the plaintiff sustained soft tissue injuries to his neck and low back as well as minor dental damage as mentioned above;

4. He also suffered a severe Post-Traumatic Stress Disorder which manifested itself within a number of weeks of the accident;

5. The plaintiffs problems affected his work to the extent that he was unable to work as successfully as he had before the accident and he had difficulties with pain, discomfort and loss of concentration as well as nightmares and other Post-Traumatic Stress Disorder symptoms;

6. As time went on, the plaintiff's conditions worsened. Stress and tension also increased because of life events and changes at work, which the plaintiff would in normal circumstances have been able to overcome but which he now found too much for him;

7. The physical and psychological conditions waxed and waned over the years since the accident but the general pattern has been of deterioration;

8. The physical problems and the psychological condition are inter-reacting in a very adverse way for the plaintiffs physical and mental health;

9. Mr O'Connor is now diagnosed as having Chronic Post-Traumatic Stress Disorder, which has no more than a prospect of improvement and which is also accompanied by depression;

10. The physical problems similarly appear to be of a chronic nature;

11. The plaintiff will not be able to go back to work either with his former employer Bank of Ireland or even in the banking or financial sector;

12. Because of the injuries physical and psychiatric and their consequences the best prospect for the plaintiff is that he may be able to do some kind of light, sedentary work but he is going to have immense difficulties in getting a suitable job;

13. The plaintiff is as a result deprived of his earning capacity in his former employment, in which he earned approximately €85,000 per annum. He is now on half pay, which will come to an end on the 31^st March 2004, after which he will have no income from the bank.

It is clear in the circumstances that damages in this case are going to be very substantial.

In this judgment, I propose initially to review the plaintiff's evidence, then to consider the medical evidence, then to look at the evidence concerning the plaintiffs earning capacity before and after the accident, then the vocational and actuarial evidence and, finally, the issue of damages.

The Plaintiff's Career

Mr O'Connor joined Bank of Ireland after leaving school in 1968. He worked as a bank official in the Waterford, Kilkenny and Carlow area for some 17 years. He returned to his native city Cork with the status of full manager, at the age of 36. His job at that time was systems manager travelling counties Waterford and Cork. In 1989 he won promotion to the position of Area Superintendent Manager. Two years later he was promoted again and after a similar period, he was elevated to Area Operations Manager in 1993. In 1996 the plaintiff was seconded to Irish Civil Service Building Society as area manager for a period of some 15 months. In 1997, shortly before the accident, the plaintiff was offered a new position. This was a two-year posting to be the head of a new mortgage venture called TMB, which had been set up by Bank of Ireland and which was based in the IFSC in Dublin. Mr O'Connor had not decided to take this job at the time of the road accident on the 14^th September 1997. While though I do not think the matter is important, for what it is worth it seems to me that it was likely that the plaintiff would indeed have elected to take up this new posting.

Mr O'Connor was stopped in a line of cars at Silversprings, Cork when the defendant crashed into the rear of his car. The collision was heavy. The plaintiff felt a severe impact. He said that there was "a massive explosion". The driver's seat was broken and Mr O'Connor was thrown forward and to the left. He was initially very shocked and was also worried for his wife who was a front seat passenger.

After the accident, Mr O'Connor had pain in his low back and his neck. He had bruising of the legs from knees down to his feet. He suffered damage to his teeth in the form of two pieces which were broken off from upper left 4 and upper left 5 and a chip which broke off upper left 3. The plaintiff said that he felt pain everywhere including his testicles.

The accident happened on Sunday afternoon. Mr O'Connor went into the office on the following day and continued at work until the 9^th October 1997. His pain and discomfort persisted and he took over the counter medication but he did not seek professional help until he went to his physiotherapist on the 6^th October 1997. During the post accident period the plaintiffs physical problems continued in that he had ongoing pain and discomfort of the neck and back and within two or three weeks he began to suffer nightmares. He says that he avoided going to bed at night, which I take to mean that he put off doing so until the early hours of the morning. The nightmares focussed on death. On the 6^th October 1997 he went to a physiotherapist Ms Mary Mensenkamff and he continued to attend her until December 1997, during which period he had repeated sessions of physiotherapy. He originally thought that he had had 36 sessions but subsequently agreed that 15 was the correct number. The plaintiff prior to the accident had suffered from back trouble. He said that he would have episodes some three or four times a year which would keep him in bed for a couple of days but he was not out of work prior to the accident because of his back and indeed had a very good work record. On the 9^th October 1997 the plaintiff attended his General Practitioner Dr Frank Matthews, who prescribed analgesia. He visited the doctor again on the 7^th November 1997 and also on the 5^th December 1997. From early October 1997 the plaintiff was out of work for some four months. Dr Matthews saw him in early December and recommended that he go back to work.

During his period of absence from work, the plaintiff found that his neck and back were very sore and did not change very much. He lived a very inactive life except for periods when he was having physiotherapy. He said he was very despondent and did not improve. He had prior to the accident been a very keen and competitive tennis player and the tennis club was a major part of his life.

In mid-December 1997 the plaintiff notified the bank that he would indeed take up the new job. It was of course a major challenge. He was keen to get back to work and this job offered flexibility and he knew that he had good support people working in TMB. He was in charge of over 300 people and the work entailed driving long distances around the country. His normal pattern of work was that he would be at home in Cork at home for the weekend and also on a Monday, and the other days he would be in Dublin or anywhere else in the country. He drove a great deal – his annual mileage was about 29,000. He said that the only time he got peace was when he was driving. His neck and back continued to trouble him but he was able to minimise the problems by carefully managing his diary, by using a leisure centre a few times a week and by walking on soft ground. He had been given back and neck exercises by the physiotherapist but eventually he had to stop them because they hurt too much.

Mr O'Connor described his time with TMB as being satisfactory for the bank but not for him. By this he meant that his performance in the job was less than he demanded of himself or indeed thought of as his capacity. Having said that, while he believed that the bank regarded his performance as satisfactory or acceptable, it was in no respect exceptional and Mr O'Connor's view was that it would have to be in his own words, "an Oscar winning performance" for his work in this job to have qualified him for the next level of promotion that he was aiming at.

The TMB job ended in March 2000. There was at the time a big reorganisation going on at the bank and it would have been Mr O'Connor's intention to apply for one of the 48 senior, executive jobs that were available in the reorganisation. He did not apply for one of those jobs because he knew perfectly well that he had no chance of getting one. His two-year stint in the IFSC had simply not been up to the appropriate standard. In addition, my impression is that Mr O'Connor was not feeling sufficiently full of enthusiasm and capacity to be able set his sights on one of these jobs. As of March 2000 he was finished with his secondment and the next step was for him to come back to Cork. It was explained by Mr O'Neill the plaintiff's supervisor that the only job that was available was as second in command in Bank of Ireland Private Banking in Cork. Mr O'Connor did this job from June 2000 for one year. In April 2001, the head of Private Banking in Cork resigned and the plaintiff secured the position, but only after a lengthy and gruelling interview process and perhaps somewhat against the odds or expectations of senior management in the bank. The plaintiff did not regard this as promotion however because there was no increase in pay or as he saw it in status.

In January 2001, Mr O'Connor saw Dr Phelan, Consultant Rheumatologist and Dr Walshe, Consultant Psychiatrist for the first time. It was clear at this stage that his General Practitioner was of the view that the plaintiff's condition was sufficiently worrying to warrant specialist intervention both in respect of the physical and psychiatric aspects.

The plaintiff said that he got through to Christmas 2001 with difficulty. He continued to suffer with his neck and his low back and also with the nightmares and other psychological features. He had increased pain when he was under stress. Mr O'Connor said that he had a very helpful personal assistant and he was extremely careful. "The least thing would make me mental"

During 2002, the plaintiff had problems at work. His evidence was that in normal circumstances he would be able to overcome these difficulties and indeed would thrive on them but now they were getting him down. He struggled on during 2002 but in August/September he had a severe regression lasting 7 weeks. This consisted of severe pain in the back of his head, pain in the neck, pain in the back, the pain radiated into all four limbs and his mind was in overdrive. Nothing helped the pain. He sought relief by lying on the floor at home. Looking back, Mr O'Connor said that he thought that he made a big mistake in staying at work instead of putting in a medical certificate and getting somebody to replace him. Mr O'Connor's interpretation of Dr Phelan's view in November 2002 was that he had lost his fighting spirit, which is more I think of a reflection of Mr O'Connor's thinking than it is necessarily what Dr Phelan was saying. Mr O'Connor said, "I realised that day I was finished". Lying at home on the floor crying was not the Paul O'Connor that he knew.

At this stage, at the end of 2002, the plaintiff was on a variety of drugs which the doctors prescribed and which were of some limited benefit.

The plaintiffs last day at work was the 27^th January 2003. He felt then that he could not take any more. He believed that there was an exit mechanism in the form of a severance package and he now set about negotiating a suitable arrangement. From February 2003 the plaintiff has been engaged in efforts to achieve an acceptable severance package. His failure to get what he thinks is what he deserves having regard to his service with the bank is a further source of frustration and distress to Mr O'Connor. On the fourth day of the hearing of this case, Mr O'Connor returned to the witness box to say that he was hopeful even then that the package available to him from the bank and which had caused him so much distress and disappointment when it was offered might now be significantly improved. The relevance of that is that if some such agreement were to be reached to Mr O'Connor's reasonable satisfaction, one could expect an alleviation of his symptoms and particularly of the bitterness that he feels towards his employers.

The plaintiff's evidence in essence is that he suffered significant physical injuries in the accident. They are still with him. He also within a few weeks began to suffer nightmares, to which other abnormal psychological symptoms were added. He struggled on with difficulty in his new job for two years. Because of the physical and mental problems, his work suffered, although his capacity did not entirely collapse. The physical and mental problems worsened and in early 2001 he was referred for specialist care to a Rheumatologist and a Psychiatrist. He has continued under their care but despite their best efforts there has really been little in the way of improvement. His problems are chronic and disabling. The ups and downs of life in the bank would have been quite manageable to Mr O'Connor if he had been in normal health as he was pre accident. Similarly with life events such as the discovery of the illness of his son and his mothers death in November 1998. By late 2002 and early 2003, the plaintiff was quite unable to do his job and was suffering very severe symptoms in both the physical and psychiatric areas. Despite being out of work since January 2003 his condition has not improved. His efforts to achieve a reasonable deal in respect of severance from the bank have not proved successful and have added to his woes.

The Medical Evidence

I am scheduling to this judgment the dates of the various medical reports which were handed in to me during the course of the hearing. Dr Matthews, Dr Phelan and Dr Walshe gave evidence for the plaintiff. They are respectively his General Practitioner, his Consultant Rheumatologist and his Consultant Psychiatrist. During the course of their evidence, reference was made to each of the reports so the contents can be taken as evidence of the experts, in addition to their oral testimony. The defendant's medical witness was Dr David Dunne, Consultant Psychiatrist, whose own report is also in evidence.

The medical evidence can be summarised as follows. The plaintiff's personality is that of a highly motivated person with immense ambition and drive. He thirsts for success. He is intolerant of failure. Before the accident, it was clear that he was destined for high achievement in the bank. He thrived under pressure and lived for work and competition. Even his social life was consumed by a competitive urge, which was expressed in his tennis playing. The injuries he sustained were soft tissue in nature to the neck and low back as well as some minor dental damage. Soon after the accident the plaintiff began to suffer from nightmares and other features of Post-Traumatic Stress Disorder. After a period out of work of some four months he went back and took up a new challenge. He sought to put his illness behind him and made good efforts to do so. He was not motivated by a desire for compensation and in fact his disposition is rather hostile to seeking damages, a view which is held even more strongly by his wife. The physical injuries did not respond to over the counter medication which the plaintiff took for about a two-year period. During that time his Post-Traumatic Stress Disorder waxed and waned, sometimes showing significant improvement and generally being controlled by the plaintiff in that he managed his life and schedule with a view to minimising stresses and strains. He was also greatly helped during 1998 and 1999 by the fact that he was doing a lot of driving around the country, which he found particularly helpful. It was the only time he got peace, he said. Mr O'Connor sought help initially from his General Practitioner in October 1997. Dr Matthews was at that stage quite optimistic that the physical and psychiatric conditions were going to improve in the fairly near future. Following a two-year gap during which the plaintiff did not attend his doctor for any accident-related problems, he re-attended on the 30^th November 1999. When there was no improvement over the months following, the doctor became increasingly concerned and in mid 2000 began to suggest that the plaintiff should seek specialist assistance. In November 2000, Dr Matthews arranged appointments for the plaintiff to see Dr Mark Phelan and Dr David Walshe in January 2001. The plaintiff was continuing to have physical and psychiatric symptoms which were causing Dr Matthews considerable concern. Mr O'Connor was having difficulty accepting that he had a problem of a kind that required specialist intervention. This, it seems, is a feature of somebody with Mr O'Connor's type of personality. The Consultant Rheumatologist Dr Phelan is of the opinion that the psychological and physical problems are impacting on each other to produce a worsening of the plaintiff's problems in each area. The psychological problems are retarding his improvement. He found that the plaintiff was having sensations of distress and palpitations bringing on physical discomfort. When he was at work, problems there brought on pain. Mr O'Connor was very aware of his condition and brought with him bundles of files and papers on visits to Dr Phelan. This suggests a type of person who is at this stage exhibiting a morbid almost obsessional interest in his problems, which is no doubt contributing to the overall picture.

I think that the plaintiff's condition is summarised in the medical reports and evidence in the following quotations:-

Dr Matthews

"Mr O'Connor continues to complain of ongoing symptoms relating to injuries sustained in a road traffic accident. He suffers from a combination of physical and psychological problems … I think he was a bad subject for the accident in that his occupation was a stressful demanding one and his personality was such that it drove him to continue to attempt to perform at a high level to the detriment of his general health. His pain interfered with his ability to cope with the stresses of the job and indeed the stresses of the job caused his pain to be more severe. He is in negotiation with his employers attempting to get a mutually agreeable severance package. If he were to obtain this I think it would be beneficial to his general health in the long term. I feel the prognosis for the future is guarded. I do not see any significant improvement in Mr O'Connor's symptoms over the last seven years. This applies to both his physical and psychological symptoms. I think the probability for a continuation of his symptoms is quite high". – Report dated 5^th September 2003 and confirmed in evidence.

Dr Walshe

"The impression is that Mr O'Connor continues to meet the criteria for Post-Traumatic Stress Disorder. At present he meets the criteria also for major depression which is very much a reaction to his deterioration and physical status in recent months. The Generalised Anxiety Disorder which is present has been subsumed by this depression and depression is a greater feature than anxiety at present. Overall his condition is very much as before and to date has failed to respond to psychiatric treatments. Prognosis: The prognosis is guarded in this man. This is largely due to his ongoing pain and physical disability and an improvement in his mental status would require a sustained improvement in these areas. Mr O'Connor would appear to have made every effort to overcome his pain and disability through his attitude and his activities and his strong desire to put this behind him and get on with his life. He has not in any sense fallen into an illness role but is struggling with recent deterioration in his physical status. From a psychological and psychiatric point of view I would expect that his psychotic conditions will persist unless he manages to get better pain relief. In the interim I will continue to undertake different treatment strategies for this condition. I recommenced Mr O'Connor on a different anti-depressant. Mr O'Connor will require ongoing psychiatric support to help him cope with this condition. – Report of 12^th December 2002.

Dr Dunne

" In my opinion it is very clear that Mr O'Connor developed a very serious Post-Traumatic Stress Disorder which was present within two weeks of the accident.

…

After the accident, between his pain but most of all between the tension from his Post-Traumatic Stress Disorder when he was unable to work and at times didn't want to have anything to do with people, the frustration of his basic drive to achieve also added to the tension of the Post-Traumatic Stress Disorder, with the result that in the end he developed quite a severe depressive disorder but fortunately one that he has come out of.

At the same time it has made it increasingly difficult for him to perform at work and at the level to which he was performing. He worked in very responsible situations. He enjoyed the responsibility. Now the anxiety and the greatly increased tension to which he is subject to makes it impossible for him to concentrate and also indeed to tolerate other people. This problem with tolerating other people is a direct consequence of the Post-Traumatic Stress Disorder but has probably increased by the frustration. He is now very intolerant indeed, intolerant to such degree that would make it very difficult for him to work with other people. Indeed, this could put terrible stress on him and he is already very stressed.

…

Yet, he didn't recover he got worse and had to stop work. This is a clear indication of how serious the matter is in my opinion and how badly it is likely to do and that he is likely to be left to some degree the way he is and perhaps for the reminder of his life.

In other words he has a serious Post-Traumatic Stress Disorder which is now a long-term one and unlikely to respond to treatment. In turn because of his need to do things very correctly and to succeed and be a winner when added to the Post-Traumatic Stress Disorder, means that it is virtually impossible for him to do his job or to continue to do it in other practical terms or because the stress would be so detrimental to his health. Such is my opinion". – Report of 12^th January 2004.

Dr Phelan's view was that there was a combination of psychological and physical symptoms impacting on each other. The psychological element was not so over-bearing in the early stages but at the latter end it began to dominate in his opinion.

The defendant's expert Dr David Dunne, who is a Consultant Psychiatrist, examined the plaintiff in the course of a long interview on the 8^th January 2004. He agrees with the diagnosis that the plaintiff is suffering from Post-Traumatic Stress Disorder. He also agrees that he had a major depressive episode some years back and that he is still in a depressive condition. As to the future, his view is that the Post-Traumatic Stress Disorder will take a very long time to clear up, if it ever does so. The plaintiff's personality he found was of a highly strung, competitive and proud person. Mr O'Connor was angry because of his demotion from competing in a higher league to a lower one. He also had issues relating to his treatment by the bank on the question of severance. Dr Dunne's view was that the plaintiff's tension and anxiety will improve even if the Post-Traumatic Stress Disorder remains. When the litigation comes to an end and when there is a solution to the severance issue with the bank, there will be a reduction in tension. This will mean that the plaintiff can cope better with his Post-Traumatic Stress Disorder. The plaintiff in Dr Dunne's view had integrity and self-knowledge. He saw the possibility that he might be able to do a job as an independent advisor in regard to finance or something of that kind. Dr Dunne was careful, however, to add that the plaintiff at present "certainly could not do" such a job. He like the other doctors was very much in favour of employment for the plaintiff. However, he was not in favour of that at this moment because he thought that the plaintiff was not capable of doing so. In cross examination Dr Dunne referred to an observation that he had made earlier, which was that the plaintiff's personality was such that there was a risk of burn out as a person gets older. He said there was some risk of this happening before retirement, assuming that no accident had occurred. He did not of course say that this was a likelihood but merely identified the possibility. As to the future, he confirmed that he believed that the plaintiff would improve somewhat when the pressures of the bank severance and the litigation arising out of his accident were terminated. He believed that the plaintiff would be able to cope with his Post-Traumatic Stress Disorder. He was much less certain in regard to the latter condition, believing that there was a prospect but no more than that of the plaintiff getting clear of the disorder. He believed that the plaintiff could look forward to doing work as a self-employed person advising people about financial matters but he said that two years or more would be needed before he was in a condition to undertake such work. As to the present, Mr O'Connor lives a very restricted life which is full of tensions and Dr Dunne was of the view that he was clearly incapable of work at the present time.

For my part, I am impressed by Dr Dunne's evidence and by the level of agreement there is in this case as to what is wrong with the plaintiff.

Issues

There is as I have said no issue in regard to the medical evidence. One may find nuanced points which reflect some minor variations but the overall picture emerging from the medical evidence is agreed, clear and bleak.

A question that was canvassed in the course of cross-examination of the plaintiff was whether he had failed to mitigate his loss by opting for a psychiatric treatment at an earlier stage. It will be recalled that Dr Matthews was considering specialist consultation in respect of his Post-Traumatic Stress Disorder in mid 2000. In addition, when the plaintiff attended Dr David Walshe in early 2001, he was hesitant at first to take medication and unwilling to undergo counselling. His reluctance to undergo either of these therapies is explained in different terms by the plaintiff in his evidence and by Dr Walshe in his evidence and reports but I do not think it matters greatly which explanation is correct. Dr Matthews and Dr Walshe made clear that they were not urging or persuading the plaintiff to undergo this treatment. They regarded his attitude as being reasonable and were of course respectful of the plaintiff's entitlement to choose, particularly in regard to psychiatric treatment. His rational was understandable, as it seems to me and the doctors were of the same view and the position was not so black-and-white even to Dr Walsh, who understandably did not want to oversell the benefits of the therapy he was recommending. In the circumstances, I do not think that the plaintiff cannot be faulted for hesitating to undergo either drug therapy or counselling or even for rejecting the idea of counselling. I also think that the medical evidence is clear that the plaintiffs personality was such that it would have been difficult for him to accept that the problem was as large as we now know it was becoming.

My conclusions on this point make it unnecessary for me to consider whether a specific plea in respect of failure to mitigate loss would have been necessary.

Another matter that was raised in cross-examination was why the plaintiff had not sought medical treatment for his injuries, in the period between the 5^th December 1997 and the 30^th November 1999. I think that the evidence of the plaintiff is essentially endorsed by the doctors in this respect. They accept that the plaintiff was trying to put the complaints behind him by working and by managing his time and his activities in such a way as to minimise the problems. His job enabled him to have a considerable degree of flexibility and to drive long distances which oddly enough he found to be therapeutic.

In all the circumstances, it seems to me that the plaintiff's account of the history of his illness is essentially correct. Any inconsistencies that exist, and they are small, seem to me to be quite unimportant. As I have said a number of times in the course of this judgement, the medical evidence is to the same effect. I think that is a tribute to the personnel involved and it makes my task a great deal easier than might otherwise have been the case.

Job Prospects

It is agreed all round that the plaintiff cannot return to Bank of Ireland. I accept also that he is not suited to going back to some similar type of work with another employer. My reasons for saying that are the views of Dr Matthews, Dr Walshe and Dr Dunne, fortified as they are by the evidence of the vocational experts Dr Hogan and Mr White for the plaintiff and Ms Horgan for the defendant. It is true that the defendant might get some comfort in the evidence and reports of Dr Phelan but I do not think that that amounts to a basis for deciding that the plaintiff has any capacity to return to work of a similar kind to any of the various jobs he was doing in Bank of Ireland.

I accept Dr Dunne's evidence that the plaintiff is not going to be able to work at all for a minimum of two years and probably for somewhat longer than that. At that stage, I believe that he has the capacity to work in a meaningful way. He will not be able to do a job which subjects him to stress but I think he could contemplate some kind of work probably along the lines suggested by Dr Dunne which would involve giving financial advice in a relatively stress-free situation. It is of course impossible to be exact about this and one has to do the best one can in seeking to assess the probabilities. My view is that the plaintiff could expect to be able to do work of that kind and probably that he could earn €500 per week or somewhat more, but in accordance with the medical evidence I do not think that he will be able to do such work for some two to three years.

The plaintiff himself raised the possibility that he might be in the position to do a driving job, moving lorries or cars. He said he always had an interest in this business and had found driving to be a peaceful and somewhat therapeutic activity even in times when he was quite troubled by his physical and psychiatric problems. I have to say I rather agree with Mr White that the prospects of the plaintiff actually getting such a job seem to me to be remote. But even if I am wrong in that, I do not think that the earnings would be a great deal different from what I have suggested and I also think it is clear that the plaintiff would not be able to contemplate such work for a number of years.

Reddy v Bates

An issue arises as to the application of the principles enunciated by the Supreme Court in the case of Reddy v Bates. Mr Creed S. C. for the defendant submits that some account should be taken in the consideration of the claim for future loss of earnings and other benefits of the possibility that Mr O'Connor might have suffered burn out or some similar psychological crisis, even if there had been no accident. Mr O'Driscoll S.C. for the plaintiff argues that before such a reduction could be considered to be appropriate, there would have to be specific evidence relating to the plaintiff to suggest in some particular way that he was vulnerable to some such illness or crisis. My view is that if there is evidence to show that the plaintiff would have been at risk in the absence of an accident, that is a feature that is particular to that case and must be reflected in the assessment of damages in proportion to the scale of the risk. The Supreme Court did not intend in Reddy v Bates and other cases to give an exhaustive list of the matters that are to be taken into account in considering future loss of earnings. The principle is that life's uncertainties and exigencies have to be taken into account in general terms so as to modify the certainties implied by actuarial calculations, which are based on the assumption that events will progress to a particular date without any disruption or interruption. If there are particular circumstances in a case, then they obviously must be taken into account.

In this case, the principle in Reddy v Bates has application. Apart from the basic and general principle, one has particular features in the nature of Mr O'Connor's personality, the high stress levels to which he was exposed and the different kinds of job in the Bank of Ireland network which he was asked to do. As he progressed upwards in the banks management structure, I think it likely that the stresses and strains would have increased. These factors make very real the possibility expressed by Dr Dunne of burnout, which I understand to be a psychological crisis which would have rendered Mr O'Connor either incapable of continuing to work or much less capable of doing so.

Damages

The plaintiff if he had been able to continue in his job in the bank would be entitled to a lucrative package of salary and benefits which will soon come to an end. Any alternative income is going to be greatly reduced and there will not be extra benefits available to him. There is little disagreement between the actuaries in the approach to calculating the plaintiff's loss of earning capacity in the future.

Mr O'Connor's basic earnings are €87,551 per annum. He is in addition entitled to bonus payments annually as appropriate. On the basis of the most recent figures, his actuary Mr. Lynch took a figure for bonus payment of €13,000. That makes a total of €100,551. The net weekly equivalent is €1,264. Applying the appropriate multiplier which is 411 gives a capital sum of €519,504. If a smaller figure of – say – €5,000 were to be allowed for bonus, the result is a capital sum of €484,148. Because of bonus variability, I think this figure should be taken as €500,000.

The plaintiff will have a loss of share bonus ranging from a little over €14,000 to almost €25,000 depending on the percentage of basic pay which is allowed by the bank in each year. I propose to take a figure of €20,000 here on the basis that there is no clear evidence as to whether the lower or the higher figures is likely to turn out to be correct.

The loss of the plaintiff's company car is capitalised at €40,934.

The plaintiff will suffer a loss in his pension. Normal retirement age in the bank is 62 years. Mr. O'Connor has a choice. He can wait until age 62 and then take up his pension but he is going to have a loss in that he will receive less per annum in pension payment than if he had worked out his time until age 62. The alternative is that he can take a payment starting on his departure from the bank and this would be €24,032 per annum of which the net weekly equivalent is €453. If he does this, the result is that his payments from age 62 are of course even further reduced. If Mr. O'Connor opts for the immediate payment on an annual basis of €24,032 his loss under this heading of pension entitlement is €202,730. If, on the other hand, the loss is to be calculated on the basis of a pension taken up at age 62, the amount is less than half that sum. Mr. Lynch calculates this alternative loss basis as €97,485. The defendant's actuary Ms Frances Kehoe calculates it at €63,000. The reason for this discrepancy is the basis of calculation, as to which the actuaries gave evidence. On that dispute, I accept the evidence of Mr. Lynch and so I take the appropriate figure here to be €97,485 if the lesser quantum of loss is to be allowed. My view is that it is. While the plaintiff may very well opt for the immediate payment which will ultimately result in a greater loss, I think that is a matter of choice for him. And I do not think that he can increase the defendant's liability to compensate him by simply deciding that he will take the immediate payment.

There is a loss in respect of death benefit calculated by Mr. Lynch at €27,281.

The total of all these sums is €685,700. From this must be deducted the capitalised value of Mr O'Connor's residual earning capacity. I propose to take a figure of €500 per week as the basis of calculation, which nets down to €454. But he is of course not going to be able to do such work for a period of two years at least. If one were to take earnings of that weekly amount up to age 62, the capital value would be €191,588. I think that €150,000 is appropriate here because of the time lapse before a return to work can be envisaged. The sum of €685,700 must accordingly be reduced by this €150,000 and the result is €535,000.

Having regard to the evidence of the psychiatrists and particularly Dr. Dunne as to the risk of burn-out in a person in the plaintiff's position, the evidence of the severe stresses to which his work exposed the plaintiff, the evidence of his own personality with its high demands made on himself, his perfectionist tendencies and intolerance of failure, a substantial reduction has to be made by reason of Reddy v. Bates. I make a reduction of a sum that is between one-quarter and one–third in order to take account of these risks and uncertainties, which brings the €535,000 down to €380,000.

The plaintiff is going to need some medical care and medication into the future. In respect of these various items which are dealt with at paragraph 8 of Mr. Lynch's report, I do not propose to deal in detail. My general approach is that the plaintiff is entitled to payment for his estimated reasonable medical expenses in the future but I do not think it is reasonable to allow any significant amount for treatment for the rest of the plaintiff's life. Neither do I think there is any basis for allowing physiotherapy for a similar period. I do not believe that the plaintiff is going to have to attend his General Practitioner or indeed his consultants for the rest of his life arising out of this accident because I think that his position is going to stabilise albeit unfortunately in a lessened condition. I do not allow the claim for a special chair to be replaced every five years for the rest of the plaintiff's life. Any approach to this issue is speculative to a degree but I think a reasonable figure here is €30,000.

The plaintiff has suffered a loss in respect of wages and bonus payments since he has been on half pay. I allow €11,500. In addition special damages are agreed in the amount of €7,725.

General damages must be added. Mr. O'Connor has had a miserable time since this accident. The evidence is clear as to his gradual deterioration, especially following his return from the TMB venture in Dublin. He is going to have continuing trouble into the future, albeit it at a lesser level and one which he is likely to be able to contain or control. In this respect I award €100,000 for past pain and suffering and €50,000 for the future.

My calculations make this a total of €579,225 and I propose to give judgment for that amount.

Schedule: Medical Reports

Dr Frank Matthews

9^th December 1999

20^th July 2000

22^nd January 2001

15^th October 2001

17^th September 2002

5^th September 2003

Dr David Walshe

10^th April 2001

2^nd January 2002

19^th February 2002

12^th December 2002

Dr Mark Phelan

26^th February 2001

11^th March 2002

8^th November 2002

20^th August 2003

Dr David Dunne

12^th January 2004