Cooper v O'Connell

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 05 June 1997
• Neutral Citation: 1998 WJSC-SC 4946
• Court: Supreme Court
• Date: 05 June 1997

1998 WJSC-SC 4946

THE SUPREME COURT

Hamilton, C.J.

O”Flaherty, J.

Barrington, J.

Keane, J.

Murphy, J.

85/90-96

COOPER v. O'CONNELL

BETWEEN

SEAN COOPER

Plaintiff/Appellant

AND

LIAM O”CONNELL

Defendant/Respondent

Citations:

CONWAY V IRISH NATIONAL TEACHERS ORGANISATION (INTO) 1991 2 IR 305

ROOKES V BARNARD 1964 AC 1129

APPLETON & ORS V GARRETT 1996 PIQR 1

Synopsis:

Damages

Negligence; personal injury; aggravated damages; negligent dental treatment; assessment of damages; special damages; dispute concerning sum awarded for loss of earnings; whether amount awarded for loss of earnings adequate; whether intended business ventures on the part of the plaintiff should be taken into account; whether failure to earn any income exclusively attributable to negligent dental treatment; grounds for awarding aggravated damages; conduct of defendant; loss of income on investments; whether being forced to sell car constitutes loss attributable to negligence Held: Appeal dismissed; award upheld Supreme Court: Hamilton C.J., O'Flaherty J., Barrington J., Keane J., Murphy J. 05/06/1997

Cooper v. O'Connell

1 JUDGMENT delivered the 5th day of June, 1997 by Keane J.

2 This is an appeal by the Plaintiff arising out of an assessment of damages in the High Court (Barron J.) in an action for negligence. The findings with which the Plaintiff takes issue are as to certain items of special damage, including the sum awarded in respect of loss of earnings, and the refusal of the learned trial judge to award any sum in respect of the Plaintiff's claim for aggravated and/or exemplary damages. An appeal on behalf of the Defendant in respect of certain items in the assessment of damages was not pursued.

3 The proceedings arose out of dental treatment carried out by the Defendant, a dentist in practice in the city of Cork, on the Plaintiff between March 1988 and January 1991. Although liability was denied in the Defence delivered on behalf of the Defendant, that plea was withdrawn in March 1993, before the hearing in the High Court, which took place in October/November 1995.

4 The action was at hearing for eight days and the findings of the learned trial judge are set out in detail in a written judgment. He awarded the Plaintiff a total sum of £261,368.25, including a sum of £50,000 in respect of loss of earnings. It was the latter figure, together with the refusal of the trial judge to award aggravated or exemplary damages, which was the main area of contention in the appeal to this court.

5 The facts, insofar as they were not in dispute, should now be set out in greater detail. The Plaintiff, who is now aged 62, is a native of Cork and spent the early part of his career in the Merchant Navy, ultimately obtaining his Master's Certificate. In the year 1969 he was appointed to a position as pilot in the Port Authority Department in Qatar in the Middle East.

6 There he remained until 1985 and during this period enjoyed a very successful career. His time coincided with a dramatic improvement in the fortunes of Qatar, following the increase in the price of oil about 1974. He was in effect the person in charge of the development of the port at Doha and of another port some distance from Doha. In 1977 he worked in the office of the ruler, the Amir, and was the captain of the Amir's yacht. As the trial judge found:

" During his period in Qatar he became a well known and influential person in the State and made many important contacts both in Qatar and in neighbouring States."

7 Unfortunately in 1985 the Plaintiff's wife developed a serious illness. She was operated on in Cork for cancer and he was advised that her life expectancy was limited. He went back to Qatar to complete his current contract, but at the end of that year decided not to return to Qatar.

8 The Plaintiff decided that the best way to cope with his wife's illness was to travel with her and his two daughters. He met with further misfortune, however, in September 1986 when they were involved in a traffic accident in the United States: all four were injured when their car, which was stationary at traffic lights, was struck from behind. His wife's illness was accelerated as a result and she died in November 1986, shortly after the family had returned to Cork. The Plaintiff then decided to stay at home in Cork with his children for the next year. The effect of this unhappy period in the Plaintiff's life is summed up as follows by the learned trial judge.

" It is quite clear from the evidence of the Plaintiff himself and of his two daughters that the Plaintiff and his wife were a devoted couple and that they and their children were a very close and well balanced family. The sudden death of his wife and the circumstances which brought it about caused considerable distress both to the Plaintiff and to his two daughters and to his son. It was largely through the care and attention that the Plaintiff gave to his children that the family survived the trauma of the death of their wife and mother."

9 In November 1987, the Defendant, who was the Plaintiff's dentist, advised him that he needed treatment for his gums and referred him to a peridontist. The latter advised him that a plate, which had replaced four central teeth in his upper jaw that he had lost in an accident when he was twelve, was the cause of his gum problems and should be replaced. The Plaintiff so informed the Defendant who advised him that he should have a full mouth restoration. The Defendant told him that this would involve the making of crowns and bridges involving nineteen artificial teeth at a cost of £300 a unit. The Defendant also told him that the procedures would take six months and the results would last him "for the rest of his life".

10 The work began in March 1988 and the final bridge work was inserted some time in or about November 1988. It was not, however, a success: the central bridge on the upper jaw loosened almost immediately and the Plaintiff returned to the Defendant to see what could be done. The Defendant was unable to remedy the situation and at the end of the year the other two bridges on the top jaw were also removed.

11 There followed what the trial judge described as "a long and tedious series of appointments" in the course of which the Defendant attempted to remedy the situation but failed. There were thirty-eight visits to the Defendant in 1988, fifty in 1989 and ninety-five in 1990. At the end of 1990, the Defendant provided the Plaintiff with one complete bridge for the upper jaw, but this turned out to be useless and had to be removed by his locum within 24 hours of being inserted.

12 The Defendant accepted in January 1991 that he had failed the Plaintiff and indicated that he would send him to another dentist who would be capable of remedying the situation. However, when the Plaintiff went to the dentist to whom the Defendant said he was referring him, it transpired that the new dentist did not know that he was coming to him or why. He was also told that, so far as the new dentist was concerned, he had only a 50/50 chance of successful remedial treatment.

13 The Plaintiff then returned to the Defendant and was told by the latter that he had made a mistake and that "everybody was entitled to one mistake". He also advised the Plaintiff that he could not afford to pay for the remedial treatment and that, as the Plaintiff had a good case against him, he should go to see his solicitor.

14 The Plaintiff then decided to seek remedial treatment in Dublin and this was ultimately undertaken by Doctor Sugrue. He embarked on a lengthy course of treatment for the Plaintiff, involving one hundred and twenty three visits, some of which lasted several hours and on average lasted one and a quarter hours. At the time of the hearing in the High Court, the final bridge work had been prepared and was ready to be inserted in the Plaintiff's mouth.

15 The trial judge rejected the evidence of an expert called on behalf of the Defendant to the effect that the work carried out by Doctor Sugrue had been much more extensive and had taken much longer than would have been warranted by the Defendant's negligence. No appeal has been taken from that finding of the trial judge.

16 The trial judge also found that, as a result of the treatment by the Defendant, involving the removal of the enamel from the teeth in the upper jaw, the entire of those teeth had been left virtually unprotected. The result was that from early 1989 the Plaintiff was only able to eat soft foods, such as milk puddings, mashed potatoes, jellies and the like. This had led to gastric problems, as a result of which he had to go into hospital in March 1992. The eating and drinking also caused serious pain to the Plaintiff because the unprotected teeth were reacting to heat and cold in a manner which caused him considerable pain. Doctor Sugrue began his treatment in June 1991 and soon thereafter the problems caused by the lack of protection of the upper teeth ceased. The pain, however, did not cease, the reason being that the jaw was out of position and as a result there was pain in the muscles. The trial judge summed up his findings on this aspect of the case as follows:

"The significance of the toothache suffered by the Plaintiff in the present case is that not only was it painful but it interfered with his normal enjoyment of life. He was unable to eat or drink at all without pain for some two and half years. In addition not only was he suffering from tooth ache in so many teeth but he suffered from pain in his jaw which manifested itself in the middle of his face from his mouth, through his nose up to his eyes. This is something which, once his treatment or his remedial treatment got underway, got worse at the beginning and gradually subsided, being caused by the position of his jaw and the need to alter that...