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Cite as: [1998] IESC 35

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Malee v. Gaelthorpe Ltd. T/A Rathvilly Trout Farm [1998] IESC 35 (2nd November, 1998)

AN CHÚIRT UACHTARACH

THE SUPREME COURT

O’Flaherty J.,

Barrington J.,

Keane J. , (262/97)

BETWEEN:

CATHERINE MALEE

Plaintiff

.v.

GAELTHORPE LIMITED

t\a RATHVILLY TROUT FARM

Defendant

Judgment (ex-tempore) delivered on the 2nd day of November, 1998, by O’Flaherty J .

1. This is an appeal brought by the defendant from the judgment and order of the High Court (Mr. Justice O’Higgins presiding) of 17th July, 1997. The case originally was an assessment of damages exclusively subject to a point in respect of whether the plaintiff had been wearing a seat belt or not. That was resolved in favour of the plaintiff and is not the subject of any appeal.

2. The appeal is brought in respect of the damages that the learned trial judge awarded and they were as follows: special damages £10,789 - there is no dispute about that; loss of earning for the future, he assessed at £22,500; general damages, pain and suffering to date £55,000 and pain and suffering in the future in the sum of £20,000. There is no dispute either on the injuries that

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the plaintiff sustained and what the future holds for her. The judge formed a very high opinion of the plaintiff as being a truthful witness if anything far from exaggerating her complaints she was minimising them to a degree. He summaries the injuries as follows:

“The injuries consisted in the main of seven broken ribs with a bruising of the lungs, a fracture of the shoulder blades and a dislocation in two places of the collar bone.”

3. He goes on to say:

“She is left with the following residual disabilities: she has a protrusion or lumps on either end of the collar bone, one of which is a little bit unsightly, the other is scarcely noticeable but the plaintiff is obviously conscious of it. She is left with a very slight drooping of the right shoulder, again which is scarcely perceptible to an observer but which the plaintiff, herself, is conscious. She complains of certain difficulties in relation to some clothing, the straps of her clothing falling down. She is left with persistent pain in the shoulder when she does certain movements and she is likely to have disability and pain into the foreseeable future. Her lung capacity as a result of the fracture is somewhat diminished on the right-hand side, though this does not cause her any symptoms at present.”

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4. The plaintiff had prior to marriage been a shop assistant and she attempted to get back to that kind of work in September, 1995, and she was not able to make a go of it.

5. In February, 1997, her husband and herself acquired a filling station near Arklow under the aegis to some degree one supposes of the Burmah Oil Company but they have had to find a good deal of finance to hind this enterprise. The modern trend with these filling stations is that there is attached to them an emporium of some description. Some of these are quite big and some of them are small and then expand, where people will pull in for petrol and then do some shopping. To serve these people speed is of the essence and a great deal of dexterity of movement will often be required. The plaintiffs orthopaedic surgeon, Mr. Hugh Smith, was asked:

“Q. Is there a possibility or probability of continuing pain through repetitive simple movements, daily movements for the rest of her life?”

He said:

“A. Yes, I think she will have some pain on the movements you mentioned for the rest of her life.”

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6. Mr. Frank Walsh who does occupational assessments of people thought that if the plaintiff was on the open market she would find it very hard to get work again.

7. The surgeon sums up the situation on this front:

“To put it simply as I can, any sustained movement involving the right arm, which is her dominant arm, and shoulder in this lady will cause pain, the severity of which will be in proportion to the physical extent of the movement and the time for which it is performed. Those are her limits. Her limits lie somewhere along the line between basically sitting behind a cash desk and doing little or nothing, or being involved in certain more energetic activities.”

8. So to cover the loss of earnings in to the future, Mr. Fitzgerald, S.C., as I understand his submission, does not contend that she should get nothing but thinks the sum of £22,500 was excessive. The judge arrives at this figure H looking at the highest figure a shop assistant in such an enterprise might receive which would be in or around £120 a week and he would allow a loss of £50; he would not allow it to age 65, he would allow it for ten years only. I bat seems to be to have been a pragmatic and just approach to the matter. I be multiplier at that level was £451 and that is how he came out with the figure he did. As regards that other figures, I have omitted to sketch in a little of the

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horror and trauma that the plaintiff must have suffered in the actual collision. The van in which she was travelling was turned over. She was knocked unconscious to a degree, she had a head injury of some description and she was in hospital for a number of weeks. She suffered a great deal of shock, anxiety, pain and trauma. One has to ask oneself what to make of the figure of £55,000 for that period of time from the date of the accident which was the 1st May, 1994 up to the hearing of the case in 1997. I do not think it was excessive. I think it was about right. I would uphold that figure.

9. As regards the figure for pain and suffering in the future, this was a figure of £20,000, I think the prospect of someone having to live with constant pain day in and day out, in the case of this young woman now in her early thirties is quite a daunting prospect and I cannot see that the figure of £20,000 is excessive.

10. So whatever way I look them, adding them up together or taking them one by one, none of these figures are excessive. I would uphold the trial judge’s awards on all fronts. I would dismiss the appeal.