Boland v Reardens of Washington Street Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 14 October 2016 |
| Neutral Citation | [2016] IEHC 586 |
| Court | High Court |
| Docket Number | [2013 No. 4766P] |
| Date | 14 October 2016 |
[2016] IEHC 586
THE HIGH COURT
PERSONAL INJURIES
Twomey J.
[2013 No. 4766P]
Tort – Damages & Restitution – S. 22 of the Civil Liability and Courts Act, 2004 – Award of damages – Proportionality – Level of pain
Facts: The plaintiff had filed a claim for special damages arising out of an incident wherein she was accidentally knocked down by the doormen at the defendant's premises. The plaintiff contended that she had developed low-back injury on the day of that incident, which prevented her from doing any work and that her chances for gaining employment in future were bleak, and hence, she was entitled for future damages. The defendant asserted that the plaintiff had suffered a minor fall, whereby she sprained her ankle and other minor injuries, which had resolved over a period of time.
Mr. Justice Twomey awarded general damages for pain and suffering caused to the plaintiff due to the neck-and-ankle injury. The Court also awarded special damages to the plaintiff for loss of earnings for the year in which she had suffered injuries and could not go to work. The Court, however, observed that there was no causation between low-back pain suffered by the plaintiff and her fall. The Court took into account the expert medical evidence presented by the defendant while ascertaining the quantum of damages. The Court held that it had to exercise caution while making an evaluation of the level of pain that the plaintiff alleged to have. The Court observed that it should award damages, which were just and proportionate to the extent of injury suffered by a plaintiff.
The plaintiff is a 36 year old woman who fell down four or five steps in Reardens Bar, Washington Street, Cork on the 19th September, 2010. She was accidentally knocked over by doormen who were ejecting a person from the pub. At the time of the accident, she worked in a call-centre, having previously spent several years in the Irish Naval Service.
After the incident, she took a taxi to the Mercy Hospital in Cork, a short distance away, where she was x-rayed and sent home with crutches, having being diagnosed as having an ankle sprain. She remained out of work for that week.
At the end up of the week, she woke up with severe neck injury, which she initially assumed arose from her having slept at an awkward angle. She went to her GP where she was prescribed pain relief medication and recommended physiotherapy for her neck pain.
She was off crutches within 10 days and her ankle injury cleared up. However, her neck injury remained for some time and she underwent several physiotherapy sessions and an MRI scan of her neck on the 3rd November 2010 (which was normal). As a result of an injection into her neck on the 18th August, 2011, by Dr. Harney, Consultant Anaesthetist, her neck pain cleared up.
However, the plaintiff's claim in this case is for special damages of in the region of €750,000, much of it related to future loss of earnings due to her inability to work. This claim arises from what has been termed by the defendants' medical experts, as a minor fall leading to a sprained ankle.
However, the nub of the plaintiff's case is that within a period of about one month after the accident, she began to complain of lower right back pain which went down her right leg. It is first recorded in a note that her GP took on the 2nd December, 2010, (some 10 weeks after the accident) where she complains of a lower back pain which arose after a visit to a physiotherapist, the last physiotherapy treatment prior to that GP appointment was the previous day (the 1st December, 2010)
It is this lower back injury which is the main focus of this trial. The plaintiff has outlined that she has not been able to work since the accident as a result of the lower back pain. This back pain resulted in her having, inter alia, a discectomy, which did not relive the pain, and she maintains that she will not be able to work again. In 2012, the plaintiff commenced a four year degree, part-time, in Human Resource Management at CIT, which she recently completed and is expected to graduate with a 2:1 degree shortly. Nonetheless her claim for damages is based on her belief that she was not able to do any work, not even part-time work, since 2010 and will not be able to work again due to her chronic back pain.
Dr. Kaar, a Consultant Neurosurgeon engaged by the defendants, records in his Medical Report that when he saw the plaintiff on the 28th November, 2013, she told him that “ after a number of weeks, possibly 2 months” there was a pain in her lower back. Similarly, Professor Harty, a Consultant Orthopaedic Surgeon engaged by the defendants, records in his Medical Report that, when he saw her on the 3rd May, 2016, she told him that “ approximately one to two months later [i.e. after the accident] the pain moved [from her neck] to her lower back and to her right leg.”
In support of the plaintiff's claim for damages for chronic back pain, she has outlined how she underwent unsuccessful lower back surgery in 2012. She also outlined details of the several unsuccessful back injections and back procedures both before and after the surgery that she has undergone. She has been on, and continues to be on, high dosages of morphine patches and opiate drugs to provide pain relief. In 2015, she was diagnosed with depression arising from her absence from work and her chronic lower back pain and she is now also on anti-depressants.
Prior to her back surgery in 2012, two MRI scans of her back were done on the 14th April, 2011 and the 30th September, 2011, which showed that one of the discs in her lower back was protruding. The back surgery on the 18th July, 2012 removed this disc and an MRI scan taken after the surgery, on the 5th November, 2012, showed that there was no disc protrusion in her back. Yet, as previously noted the chronic back pain continued for the plaintiff. Also, as noted, subsequent injections and procedures have failed to eliminate the chronic back pain.
She underwent nerve conduction studies and concentric needle electromyography (EMG) in June of 2016 which, according to the plaintiff's medical evidence, suggests that she has nerve injury in her lower back. Professor Harty, a consultant orthopaedic surgeon engaged by the defendant, was of the view that this EMG is of limited value in establishing whether this nerve damage was caused by the accident, since the EMG was done some five and a half years after the accident and in any case nerve damage was not surprising in view of the various surgeries and interventions which the plaintiff has had over the years.
Before considering the issue of causation, reference should be made to the medical reports in this case.
Dr. Hogan, an occupational physician engaged by the defendant, examined the plaintiff on the 19th November, 2014. He noted that there was an apparent decreased range of movement when the plaintiff was asked to do an activity, but much less when she was not actually being examined. He noted the inconsistency between her ability to perform straight leg raising of 20°, which is very limited and indicative of chronic back pain, when supine and when being examined, but straight leg raising of 90°, which is normal, when distracted and when seated. .
When Dr. Hogan examined the plaintiff for a second time on the 23rd June, 2016, he noted that the straight leg raising when she was supine was 15°. He also noted that the plaintiff complained of pain in the lower back when pressure was applied to the head (the axial compression test), even though such compression should not cause any pain. He also noted exaggerated reaction to relatively gentle leg raising.
Professor Harty, an Orthopaedic Surgeon engaged by the defendant, noted that when he examined the plaintiff on the 3rd May, 2016, she could do straight leg raising to about 70° on her right side when supine and when being examined. However, when distracted and sitting on the couch she could do it to 90°, which would be normal.. He also felt that she feigned restriction when being examined around the lower back, but when distracted moved better than expected. He also stated that when he did an axial compression test by pressing his hand on her head, she indicated a pain in her lower back, when such compression does not cause such pain. Professor Harty stated that he could find no relation between the pain which the plaintiff exhibited and his clinical findings. He concludes that:-
‘My impression is that this lady sustained a soft tissue injury. The discectomy that she has had in the lumbar back for pain that she has had bares no temporal relationship to the injury she has sustained. I expect this lady to make a full recovery. I strongly suspect that there is an underlying history or diagnosis of depression here, which is driving most of this. Once this lady's medico-legal case is completed, I expect her to make a full recovery.’
Dr. Kaar, a Consultant Neurosurgeon engaged by the defendants, examined the plaintiff on the 28th November, 2013, and he found that having heard severe...
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