Conley v Strain

• Jurisdiction: Ireland
• Judge: Mr. Justice Lynch
• Judgment Date: 05 August 1988
• Neutral Citation: 1988 WJSC-HC 1915
• Docket Number: [1985 No. 405P],No. 405p/1985
• Court: High Court
• Date: 05 August 1988

CONLEY v. STRAIN

BETWEEN:

JOHN MICHAEL CONLEY

PLAINTIFF

AND

JOHN ANTHONY STRAIN, COLM GALVIN AND THE WESTERN HEALTH BOARD

DEFENDANTS

1988 WJSC-HC 1915

No. 405p/1985

THE HIGH COURT

Synopsis:

NEGLIGENCE

Fault

Apportionment - Traffic accident - Collision - Passenger injured - Seat belt not worn - Contributory negligence - Apportionment of 14% fault to plaintiff passenger - ~See~ Negligence, surgeon - (1985/405 P - Lynch J. - 5/8/88) 1988 I.R. 628

|Conley v. Strain|

NEGLIGENCE

Surgeon

Operation - Emergency - Brain - Haemorrhage - Medication after operation - Unsuitable drug - Brain damage - Cause of damage - Balance of probabilities - Damage caused by initial haemorrhage - Early in the morning of 11/6/84 the plaintiff was travelling as a passenger in a motor car, owned by the first defendant, which was being driven by the son of the first defendant - The car was driven at a fast speed from a minor road onto a major road where it collided with another vehicle, overturned and came to rest upside down in the entry of another minor road opposite the point where it entered the main road - The plaintiff was thrown out of his seat and was found underneath the bonnet of the upturned car - The plaintiff suffered severe head injuries - The plaintiff claimed damages from the defendant car owner in the High Court and pleaded that his personal injuries had been caused by the negligence of an agent of that defendant - The plaintiff's action was listed for hearing on 20/5/87 but the defendant car owner applied to have the defendant surgeon and the defendant health board joined as third parties for the purpose of claiming an indemnity or a contribution in respect of any damages payable by the defendant car owner to the plaintiff, whereupon the plaintiff joined the said surgeon and health board as defendants in his action - The defendant car owner did not deny negligence but he pleaded (a) contributory negligence on the part of the plaintiff for not wearing a seat belt and (b) that the plaintiff's injuries had been aggravated, to a large extent, by ~novus actus interveniens~ due to the acts and omissions of the defendant surgeon and the defendant health board - The trial of the plaintiff's action commenced on 10/5/88 - The plaintiff sustained a compound comminuted depressed fracture of the skull above his right ear - The fracture measured 2.5 inches by one inch and a segment of bone had been driven partly into his brain - An emergency operation was performed on the plaintiff by another surgeon in the Galway Regional Hospital, which was a hospital managed by the defendant health board - The plaintiff remained unconscious until 15/6/84 and he was transferred from the intensive care unit of the hospital to a general ward on 19/6 - The plaintiff continued to make progress; he was able to walk, talk and attend for physiotherapy - At 1.30 a.m. on 27/6 the plaintiff called for nursing attention and it was found that he was suffering from spontaneous arterial bleeding from the fracture site on his head - The defendant surgeon was called from his home and began to operate at 2.30 a.m. and he removed a clot from the area of the fracture; he experienced great difficulty in stopping the bleeding which consisted of a widespread ooze of blood from the dura covering the brain - Eventually he stopped the bleeding by using the contents of three packs of surgi-cell placed side by side on the dura - He closed the wound as much as possible, leaving a drain in the wound to carry off any further bleeding, and bandaged the plaintiff's head to protect the head, keep the brain sterile and keep the drain and surgi-cell in place - As the plaintiff's blood pressure was very high, the defendant surgeon advised the administration of a hypotensive drug and it was given to the plaintiff intravenously and it reduced his blood pressure - After that operation the plaintiff remained deeply unconscious and on a ventilator - He was removed by ambulance on 4/7 from the Galway Regional Hospital to the neuro-surgical unit of the Richmond Hospital in Dublin - On the next day another surgeon operated on the plaintiff and removed a clot from the site of the head fracture, and the surgi-cell packing - The plaintiff remained unconscious during his stay at the Richmond Hospital and after his return to the Galway Regional Hospital on 27th July; he regained consciousness in November, 1984. Held that, in the absence of witnesses, the balance of probabilities was in favour of the inference that the plaintiff had been travelling in the passenger's seat of the car and that he had not been wearing the seat belt provided in the car. Held that 14% of the fault for the plaintiff's injuries should be apportioned to the plaintiff; and that the balance of the fault should be apportioned to the defendant car owner - Held that the defendant surgeon and the defendant health board were not negligent because they did not seek advice from a neuro-surgical centre after the operation performed on the plaintiff on 11/6/84 - Held that the said defendants had not been negligent in keeping the plaintiff in the Galway hospital after the operation on 11/6/84 instead of sending him to such centre immediately — Held that the defendant surgeon had achieved haemostasis before the completion of the operation he performed on 27/6/84 and that, on that issue, the evidence of the defendant surgeon and other witnesses was to be preferred to the operation notes taken by a junior doctor - Held that the packing of the plaintiff's fracture and the bandaging of his head by the defendant surgeon had been performed in a competent manner - Held that the advice of the defendant surgeon that a hypotensive drug be administered to the plaintiff after the second operation was inappropriate advice and, despite the emergency situation in which the defendant surgeon found himself, was not justified or excusable - Held, nevertheless, that the irretrievable brain damage suffered by the plaintiff was caused by the injuries sustained by him in the vehicle collision and by the resultant secondary haemorrhage which occurred early in the morning of 27/6/84 and was not caused by the administration of the hypotensive drugs - Held, accordingly, that the plaintiff's claims against the defendant surgeon and the defendant health authority would be dismissed - (1885/405 P - Lynch J. - 5/8/88)

|Conley v. Strain|

DAMAGES

Assessment

Personal injuries - Brain damage - Incapacity - Life-long dependency - Plaintiff 25 years old - Further 25 years life expectancy -The plaintiff, when aged 21 years, suffered irretrievable brain damage when the motor car in which he was travelling as a passenger collided with another vehicle on 11/6/84 - The plaintiff was born in Massachusetts and he lived with his parents in Ireland; he was virtually blind in his right eye from birth - Two brothers and a sister of the plaintiff lived in Massachusetts - The plaintiff passed the examinations for the Intermediate Certificate and for the Leaving Certificate - He had completed the first half of a course with the aim of becoming a chef and, when qualified, he had intended to emigrate to Massachusetts and to work in the catering industry there - The plaintiff suffered a compound depressed fracture of the right side of his skull above his right ear, with part of the bone pushed into the dura covering his brain - He had four-limb spasticity and had lost the power of speech - He had four operations and it was likely that a fifth operation would be necessary - He suffered from contractures in his shoulders, arms and legs - He needed assistance for all the basic needs of life - He was confined to a wheelchair and had to have splints applied every day to his elbows and hands to combat the contractures - He was described by a neuro-surgeon as an intelligent young man who was imprisoned in a body which responded to few of his commands - The plaintiff's damages were assessed when he 25 years old and when it was calculated that his life expectancy was a further 25 years - Held that the actuarial figure of #932 as the capital value of each net pound of loss of earnings during the next 25 years should be reduced by 5% to #885 to allow for the factors of unemployment, sickness and accidents; and that the actuarial figure of #318 for each pound of loss for the following 15 years should be reduced by 12% to #280 to allow for those factors - Held that the evidence showed that the cost of living in the Boston area of Massachusetts and the cost of living in Ireland were approximately the same if the high rentals for accommodation in the Boston area were excluded from the relevant calculations based on an exchange rate of $l.56 to the Irish pound - Held that there would be judgment for the plaintiff against the defendant car owner for #9l6,702.38 damages - The damages awarded included #6,695 special damages - They included #2,100 for loss of earnings from the date of the accident to 30/6/85 and #38,185 loss of earnings for three years and five weeks from 1/7/85 ($500 p.w. less 26% tax being $19,240 or #12,333 p.a.) - They included #252,225 for future loss of earnings over 25 years ($36,400 p.a. less 36.4% tax being $23,15O p.a. or #285.25 p.w. multiplied by 885) - They included #16,800 for loss of earnings over the following 15 years ($95 p.w. after living expenses or #60 p.w. multiplied by 280) - They included #232,050 expenses for a semi-qualified attendant living in (#255 p.w., including board and employer's PRSI, multiplied by 910) - They included #35,000 expenses of substitute semi- qualified attendant for two days p.w. for ten years from 15 years henceforward (#100 p.w. multiplied by 350) - They included #27,300 compensation for plaintiff's family in discharging the duties of a substitute semi-qualified attendant for two days per week during the next 15 years (#50 p.w. multiplied by 546) - They included #45,500 expenses...