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Cite as: [1999] IESC 22

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Gaffey v. Hurley [1999] IESC 22 (26th January, 1999)

THE SUPREME COURT

No. 93/98

Denham J

Lynch J.

Barron J.

BETWEEN

CORMAC GAFFEY

PLAINTIFF/APPELLANT

AND

LOUISE HURLEY

DEFENDANT/RESPONDENT

Judgment of Mrs. Justice Denham delivered on the 26th day of January 1999.

[Nem. Diss.]

1. This is an appeal from a judgment and order of Mr. Justice Peter Kelly on Friday, 6th March, 1998. At issue is an assessment of damages arising out of a road traffic accident which occurred on the 11th August, 1988.

2. Cormac Gaffey (hereinafter referred to as the Appellant) was born on the 18th February, 1979. He was a back seat passenger in his parent’s car which was run into from the rear by the Defendant/Respondent’s vehicle. He was wearing his seat belt. Both his parents were injured in the accident.

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HIGH COURT JUDGMENT

3. In a reserved judgment the Learned High Court Judge set out the evidence and his findings of fact. He was satisfied that immediately after the accident the Appellant complained of back pain. Not a great deal of attention was paid to the complaint initially but he was brought to the local G.P. in November, 1988 when an X-ray was directed. In January, 1989, on the matter of the Appellant’s back pain, the G.P. felt the problem was muscular, he advised physiotherapy, deep heat and exercises. An X-ray demonstrated no abnormality. During 1989 the Appellant was seen by the Orthopaedic Surgeon, Mr. Colville, who was of the view that the Appellant sustained a soft tissue injury but he could find no clinical evidence to support any significant problem. Subsequently the Appellant was referred to Mr. Esmond Fogarty, Paediatric Orthopaedic Surgeon, who he saw in November, 1990. As regards Mr. Fogarty’s evidence the Learned Trial Judge stated:

“He was a most careful witness and made it clear throughout his evidence that both the disc and facet joint degeneration, which were present on the MRI done in 1992, might be attributable to the accident. Throughout his evidence he made it clear that the disc and facet degeneration could have been caused by the accident, but stated this as a matter of possibility rather than probability. Mr. Fogarty was also quite specific in his view, that the pain in respect of which the [Appellant] has been making complaint is not caused by the disc or facet joint degeneration. In his view this degeneration is asymptomatic at present.”

4. As regards the evidence of Dr. Sean Murphy the Learned Trial Judge said:

“Dr Murphy takes the view that the [Appellant] suffered a soft tissue injury, and the disc degeneration described by Dr. Brennan was in his opinion genuine but irrelevant and not related to the accident. He could see no reason why the [Appellant] could not pursue any vocational line he might wish”.

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5. The Learned Trial Judge then held that:

“In the light of the medical evidence the [Appellant] has not satisfied me, as a matter of probability, that the degenerative change evidence on the MRI scans in both disc and facet joints is attributable to the accident. In any event, there is no dispute between the doctors that this degenerative change is asymptomatic as far as the [Appellant] is concerned.”

6. The Learned Trial Judge determined:

“It follows, therefore, that this case must be viewed as one of soft tissue injury. And I must exclude any question of the degenerative change which has been demonstrated on the MRJ from the point of view of assessing damages. I accept that the [Appellant] has had regular pain in his back and that this is made worse by his engaging in sporting activities and heavy or persistent manual work or standing for long periods. Notwithstanding that, however, he has managed to have a full life and has engaged in swimming, cycling, skiing, soccer, gaelic, rugby and tennis. I accept that when he engages in these activities he suffers for the following day and that this have given rise to a curtailment of these activities.

I accept the medical evidence of Mr. Fogarty, that given that the pain complained of by the [Appellant] has persisted for the last ten years it is unlikely to clear up in the future. On the other hand, this [Appellant] has adjusted very well to the pain. His attitude is refreshingly different to many plaintiffs who come before the court. He takes the view that you have to live with the pain and get on with life.”

7. It was submitted on behalf of the Appellant before the High Court that as a result of the injury the Appellant’s future employment prospects have been damaged. On this matter the Learned Trial Judge concluded:

“I have come to the conclusion that the [Appellant’s] pain and discomfort will continue into the future. But he has adjusted himself well to this and has a very positive attitude. I do not think that the soft tissue injuries will materially

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affect his ability to obtain a job. They, coupled with the degenerative change, might make him unattractive for employment by first division employer. But it is no more than a possibility. That will very much depend upon the view of a medical officer whose advice might be sought by such a prospective employer. In any event the degenerative change is not attributable to the accident.”

8. On the issue of the Appellant’s future employment the Learned Trial Judge noted that the Appellant has a learning difficulty and that he is going to sit for the Applied Leaving Certificate in 1999. That he had obtained a reasonable Junior Certificate result at the ordinary level, and that it is quite clear that an academic life is not for him. He noted that like many young people of his age the Appellant has not decided what he wants to do. That at one stage he had hoped to follow his late father’s career into the Gardaí. That his present interests appear to be in media studies involving camera work or sound work. On the evidence of a vocational assessment expert, the Learned Trial Judge found:

9. “Her evidence was to the effect that she thinks it likely that the [Appellant] would have a difficulty in obtaining employment with what might be called “first division” employers who would have extensive screening procedures before employment is offered. These screening procedures would throw up the [Appellant’s] back condition and might make him somewhat unattractive from their point of view. However, she did not think he would have any difficulty in obtaining employment with employers who have lesser screening. That was the high watermark of her evidence from the [Appellant’s] point of view.”

10. The conclusion reached by the Learned Trial Judge was that he did not think that the soft tissue injury will materially affect his ability to obtain a job. That it, coupled with the degenerative change, might make him unattractive for employment by first division employers, but that it is no more that a possibility.

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APPEAL

11. The Appellant has appealed against the judgment of the Learned Trial Judge submitting that he misdirected himself on law or fact as follows:

1. In failing to find that the Appellant’s work prospects were detrimentally affected by the accident;

2. In failing to find that the Appellant would or could suffer a loss of earnings as a result of his work prospects being detrimentally affected aforesaid; and

3. In that the award of £20,000 in respect of pain and suffering by the Appellant from the date of the accident to the date of the trial was irreconcilable with the same award in respect of future pain and suffering which will be suffered by him having regard to the life expectancy of a person of the [Appellant’s] age.

SUBMISSIONS

12. Mr. McCartan S.C., on behalf of the Appellant, in a submission put strongly to the Court, stated that while he could not say on the evidence that the degenerative condition in the Appellant’s spine was connected to the accident he submitted that the Learned Trial Judge had failed to take its importance into account given that the Appellant had suffered a soft tissue injury. He submitted that the soft tissue injury, taken together with the degenerative change, would result in a situation where he was vocationally affected. He submitted that the degenerative change is relevant as to how the Appellant is affected in the future because one cannot isolate it from the soft tissue injury. He submitted that it was necessary to take the Appellant as one found him, which was with this degenerative change. He submitted that it was Mr. Fogarty’s view that the Appellant would be vocationally

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compromised taking both the degenerative change and the soft tissue pain into account. He also submitted that the figure of £20,000 for pain and suffering to date was low, given the pain and difficulties the Appellant has had. That it would in effect be £2,000 per annum to date. That while it was not usually appropriate to consider an annual figure (one must view the global figure) in the circumstances of this case it was a matter to consider. He suggested that the level of damages do not reflect adequately the pain and suffering to date. As to the future the Appellant will be twenty in February, 1999. He was a long life ahead of him. Part of it will be as a student and then he will have approximately forty five years working life. He submitted that £20,000 is an inadequate award of damages for the future both in terms of general damage and that it clearly does not take into account any impingement on his vocation and employability.

13. Mr. Fleck, S. C., on behalf of the Defendant/Respondent, pointed out that Mr. Murphy was of the view that the Appellant would not be vocationally challenged and that Mr. Fogarty was very precise and spoke of possibilities not probabilities. He stated that this was a soft tissue injury only. It was a soft tissue injury with no abnormality. He pointed to the Appellant’s activities both in the sporting field and in his life style. He submitted that the Learned Trial Judge did assess the degree of back pain. He pointed to the motivation of the Appellant which was extremely high. He submitted that there was credible evidence on which the Learned Trial Judge considered the position of alleged future loss of earnings. That in the circumstances on the evidence it was open to the Learned Trial Judge to hold that the Appellant would have pain and suffering in the future but he would not have vocational difficulties.

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DECISION

14. Whereas there was considerable evidence and analysis of the degenerative change in the Appellant’s spine the injury in issue is a soft tissue injury. If the degeneration had become symptomatic as a result of the injury it would have been another matter. But the evidence was that the degeneration was asymptomatic. As to future problems with the degenerative change, the furthest Mr. Fogarty went was to say that as a matter of possibility problems may be encountered. Thus the kernel of the appeal is whether or not the Learned Trial Judge attached appropriate significance and weight to that portion of the evidence relating to the vocational assessment of the Appellant.

15. I am satisfied, having considered carefully the evidence and Counsel’s submissions, that the Learned Trial Judge did not err in relation to the weight to be given to the degenerative change in the spine taken with the soft tissue injury, when considering the Appellant’s vocational future. The weight of the medical evidence was that it was a possibility that his vocational future would be affected. Equally the evidence of the vocational assessment expert was such that the Court could, as it did, take the view that future limitation was a possibility rather than a probability. And, of course, there was the clear evidence of Dr. Murphy saying the Appellant could pursue any vocational line he wished. These were all issues of fact. These were decided by the Learned Trial Judge. On the evidence it was open to the Learned Trial Judge to find as he did.

16. Some criticism was expressed at the finding that the Appellant has adjusted well and has a good attitude. It was suggested that by so finding the Court was influenced to award him insufficient damages. I do not believe this was so. The Appellant was a credible witness who the Judge believed. He is a young man who has good motivation. The judge was expressing his admiration for this facet of the Appellant’s character.

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17. On the submission that the figure of £20,000 was low for damages to date, for ten years pain and suffering, and irreconcilable with a figure of £20,000 for the future, given the life span of the Appellant, I have considered the evidence carefully. The figure of £20,000 for pain and suffering to date obviously takes into account the accident, the immediate post accident situation, the nuisance of the investigations, and the coming to terms with the pain as a child. The award as to the future relates to a situation which requires no further medical intervention. All in all, in the circumstances of the evidence, the decisions of fact by the Learned Trial Judge, considering the global figure of damages, as should be done, it is not such an award that an Appellant Court should intervene. Thus I would refuse this ground of appeal also.

18. In all the circumstances therefore, I would dismiss the Appellant’s appeal.