Supreme Court of Ireland Decisions

Finlay C.J.

Griffin J.

Hederman J.

THE SUPREME COURT

(246/87)

BETWEEN

NOEL O'CONNOR

Appellant

and

JOSEPH O'SHEA

Respondent

JUDGMENT delivered on the 24th day of July 1989 by FINLAY C.J.

This is an application by Notice of Motion brought on behalf of the Appellant pursuant to Order 58, rule 8 of the Rules of the Superior Courts for an order giving liberty to adduce further evidence on behalf of the Appellant on the hearing of the appeal herein on the grounds that the basis of the claim for damages at the trial in the High Court has been falsified since the findings of the jury and further that the exigencies of justice are in favour of the exercise of the discretion of the Court to receive the evidence.

The Motion was supported by an Affidavit filed by the Appellant and exhibiting medical reports resulting from a recent medical examination of him by a surgeon who had not been amongst the witnesses at the trial. The Respondents filed a Replying Affidavit dealing with the trial.

The Appellant was involved in a motor accident on the 13th April 1983 as a result of which he instituted proceedings in the High Court. These proceedings came to hearing on the 15th July of 1987 before the President of the High Court and a jury sitting in Cork. The issue of negligence on behalf of the Defendant was not contested but contributory negligence in failure to wear a seat belt was raised as a defence. Questions in that regard were left to the jury and in addition a question on damages in which the jury were asked to assess damages under the following heads.

(a) Loss of earnings to date.

(b) Loss of earnings in the future.

(c) Pain and suffering to date.

(d) Pain and suffering in the future.

The jury awarded loss of earnings to date in a sum of £12,500; entered a nil entry on the loss of earnings in the future; allowed £2,000 for pain and suffering to date; and entered a nil entry in the pain and suffering in the future. The Order of the High Court was perfected on the 16th July 1987 and a Notice of Appeal on behalf of the Appellant against the inadequacy of the damages awarded and specifically against the failure of the jury to aware any damages for pain and suffering or loss of earnings into the future was filed on the 27th July 1987.

In the course of the trial as appears from the transcripts, six medical witnesses were called to give evidence on behalf of the Plaintiff. These included not only witnesses available in Ireland but Mr. John Firth, a consultant neuro-surgeon from Nottingham.

A major issue clearly arose on the question of damages before the jury as to whether the complaints which the Plaintiff made with regard to his back flowed from this accident or whether, as was contended on behalf of the Defendant, they really were the consequence of an incident which occurred while he was pushing a car in February 1983 as a result of which he suffered a back injury in respect of which he had to undergo hospital treatment. Major issues also arose at the hearing of the evidence in the Court below concerning the genuineness of the Plaintiff's claim to have lost earnings, both up to the present and into the future, and with regard to the genuineness of his complaints.

During the course of the hearing before the jury the medical evidence adduced on behalf of the Plaintiff included definite evidence of opinion by some of the medical practitioners who had examined him that he had a degenerative condition of the spine, of a really serious nature. When asked as to what his future progress would probably be Mr. Firth expressed the opinion that if over a period of two years he indulged and scrupulously obeyed what was described as a ruthless management programme consisting of a reduction of weight and a ruthless attention to his posture, that in time he would return to work. This opinion was supported by a practitioner in medical chiropractics who also endorsed and emphasised the every ruthless nature of the course that would be involved and the amount that would be involved in getting him back to work over a period of about two years. Medical evidence adduced on behalf of the Defendant denied the existence of as serious a condition and was evidence of an opinion that his present posture and symptoms on examination were bizarre and not consistent with any known medical condition.

The evidence which it is now sought to adduce on the appeal is evidence that in March of this year, 1989, the Appellant was sent to a distinguished orthopaedic surgeon in Dublin at the request of Mr. Firth, and that this surgeon has recommended to him a spinal fusion after examination. The probable prognosis would be that after a period of six to nine months convalescence to recovering from that operation which has a 90 per cent chance of success, he would have cured the condition from which he complains.

In the case of Dalton v. The Minister for Finance in which judgment was delivered on the 22nd February 1989,by this Court, I set out shortly the considerations of finality of litigation which were a dominant feature in consideration of an application of the description made in this case. With that judgment the other members of the Court agreed. It is unnecessary for me to repeat here what I said there, save than to express very shortly the position that whilst of course no rule with regard to the matters which may be considered by this Court on appeal can be an inflexible rule that there is a very strong presumption indeed against permitting the reopening of case, of the assessment of damages for personal injuries by reason of the progress, or apparent progress, of those injuries after the conclusion of a trial.

It was urged, however, upon the Court by Counsel for the Appellant in this case that it fell within the category of a case where a dramatic alteration in circumstances has totally falsified the basis of the trial in the Court below and that as a consequence the exigencies of justice required that the evidence should be permitted to be considered on appeal.

Reference was made to a number of English decisions, most of which are considered and culminated in the decision of the House of Lords in the case of Mulholland v.Mitchell 1971 AER.

I am satisfied that where what could fairly and accurately be described as a dramatic alteration in the circumstances upon which the verdict in the Court below was based has occurred, that it may be proper in cases having regard to the requirements of justice that this Court as a court of appeal should consider that alteration in circumstances in relation to the question as to whether an appeal with regard to the amount of damages should be allowed.

Having carefully considered the transcript of evidence in the Court below in this case and the evidence now submitted by way of medical reports on the motion before us, I am not satisfied that anything approaching what could properly be described as a dramatic alteration in circumstances falsifying the basis of the trial in the Court below has occurred, and it seems to me that the admission of evidence at this stage with regard to a more recent medical examination and what is in effect a different medical view reached by a different medical practitioner could not be justified and would give rise to all the disadvantages and mischief which I have outlined in my decision in Dalton v. The Minister for Finance.

In these circumstances I would dismiss this motion.