Dardis v Poplovka

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 01 March 2017
• Neutral Citation: [2017] IEHC 149
• Court: High Court
• Docket Number: [2012 No. 12484 P.]
• Date: 01 March 2017

BETWEEN

MICHAEL DARDIS

PLAINTIFF

AND

SERGEJS POPLOVKA

DEFENDANT

[2017] IEHC 149

Barr J.

[2012 No. 12484 P.]

THE HIGH COURT

Tort – Damages & Restitution – Road Traffic Accident – Nature of injuries sustained – Quantum of damages

Facts: The plaintiff had filed a claim for damages for sustaining injuries when the defendant's vehicle collided with the plaintiff's stationary vehicle. The plaintiff alleged that as a result of that accident, he had suffered serious soft tissue injuries to muscles and ligaments throughout his spine. The plaintiff further alleged that he was rendered unfit for any work due to the nature of injuries sustained and thus suffered loss of earning of the past and into the future as well. The defendant, though admitting liability as to the soft tissue injuries, yet denied any claim as to the disability of the plaintiff to the effect that he was not able to procure any kind of employment.

Mr. Justice Barr awarded special damages along with a modest sum for loss of opportunity on the job market to the plaintiff. The Court, however, refused to award damages for the loss of future earnings as in the opinion of the Court; the plaintiff did not make any efforts to procure a job. The Court held that on the basis of medical experts, it was not opined anywhere that the plaintiff was rendered fully disabled. The Court observed that since the plaintiff was a qualified mechanical engineer, finding a light-weight job with no physical work would not be a problem to him.

JUDGMENT of Mr. Justice Barr delivered on the 1st day of March, 2017

Introduction

1 This action arises out of a road traffic accident which occurred on 21st October, 2009. The plaintiff's vehicle was stationary, when it received a high speed rear impact from the defendant's vehicle. The plaintiff's vehicle was written off as a result of the accident. Liability is not in issue.

2 The plaintiff is 44 years of age and is a qualified mechanical engineer. He alleges that he has suffered a very serious soft tissue injury to the muscles and ligaments throughout his spine. He complains of neck, mid-back and lower-back pain on a daily basis. He has received extensive physical therapy and physiotherapy treatment and has received a number of injections to his back from his G.P. More recently, in 2016, he was given nerve block injections by a pain specialist. The plaintiff did not call this doctor to give evidence. Instead, he called another pain specialist, who had seen him for the first time on 17th January, 2017, the day before the case started. He is of opinion that the plaintiff is suffering from myofascial pain syndrome and will never be fit for heavy manual work again.

3 At the time of the accident, the plaintiff ran his own one-man construction company, which had been set up in February, 2008. The plaintiff alleges, that as a result of the injuries sustained in the accident, he has been rendered totally unfit for any work since that time, with the exception of the period from September, 2010 to February, 2011 when he worked on the family farm minding cattle. He is claiming the sum of €141,763 for past loss of earnings.

4 The plaintiff further alleges that he will never be fit for any form of gainful employment in the future. He claims the sum of €478,279 for future loss of earnings. There are also sundry medical expenses of €4668.52.

5 The essence of the defendant's case is that, it is accepted that the plaintiff suffered a soft tissue injury to his neck and back in the accident. The defendant maintains that this was not a particularly severe soft tissue injury and that it had cleared up within eighteen to twenty-four months from the time of the accident. Any remaining aches and pains that he may have had after that time, down to the present, were due to age related degenerative changes in his back, rather than any injury sustained in the accident.

6 The defendant denies the sums claimed by the plaintiff by way of special damages. In particular, the defendant does not accept that the plaintiff has been rendered unfit for all forms of employment since the accident. They deny that he is so disabled at present, or will be so disabled into the future. Accordingly, they deny the loss of earnings claim in its entirety.

7 Given the extent of the conflict between the parties in relation to both the injuries suffered by the plaintiff and the very large loss of earnings claim put forward on his behalf, it is necessary to set out in some detail the history of the injury sustained by the plaintiff and the treatment furnished to him from the time of the accident down to the present.

The Accident, the Injuries and Treatment in the first two years

8 On 21st October, 2009, the plaintiff's vehicle was stationary on the highway at Kilmoona Cross, Navan, Co. Meath, waiting to make a right hand turn, when it was struck on the rear by the defendant's vehicle. The plaintiff was in the driver's seat and was wearing a seat belt. His car was damaged to such an extent that it was written off after the accident.

9 The gardaí were called to the scene of the accident. They took the usual details from the plaintiff and the defendant. The plaintiff was then driven home by his brother. He did not attend any hospital on the day of the accident.

10 On the following day, the plaintiff attended with his G.P., Dr. Sean McGrath, who had been his G.P. since in or about 2005. Dr. McGrath stated that the plaintiff never had any prior issues with his neck or lower back. When the plaintiff attended at his surgery, he complained of neck and lower back pain and pain in his right shoulder and right wrist. He had a bruise on his forehead where his head had struck against the windscreen. Dr. McGrath prescribed a course of non-steroidal anti-inflammatory drugs and arranged for the plaintiff to have an MRI scan. He advised the plaintiff to rest for seven to ten days and also advised that he should have physiotherapy treatment.

11 An MRI scan was taken on 24th October, 2009, of the plaintiff's cervical, thoracic and lumbar spine. Unfortunately, the images were somewhat degraded by virtue of the fact that the plaintiff moved during the scan. However, it was possible for the radiologist to furnish a report thereon. The scans confirmed that there was no fracture identified. There were degenerative changes seen in the inferior cervical intervertebral discs. There were degenerative changes and posterior disc bulging in several mid and upper thoracic intervertebral discs. There were degenerative changes and Schmorl's nodes throughout the lumbar intervertebral discs. Spinal alignment was normal. The neural exit foramina were patent at all levels. The spinal cord was normal in its entirety.

12 The plaintiff stated that after the accident, he experienced severe pain in his neck and back. At that time, he was engaged in the construction of a house for a client. The house had reached almost 75/80% completion at the time of the accident. The plaintiff stated that in the days after the accident, he took anti-inflammatory medication and stayed at home doing paperwork for approximately two weeks. He stated that he was unable to do any heavy work after the accident. He had to engage subcontractors to complete construction of the house. He supervised this work and the house was completed in December, 2009 with some extras being carried out in January, 2010.

13 On 19th November, 2009, the plaintiff returned to his G.P., due to the fact that while working up a ladder, he experienced a sharp pain in his mid and lower back. Dr. McCarthy gave the plaintiff an injection into his back to relieve the pain and advised that he should rest. Dr. McCarthy carried out an examination on that occasion. He found a reduced range of movement in the plaintiff's neck in all planes. There was moderate tenderness to deep palpation. There was no neurological deficit affecting the upper limbs. The thoracic spine was normal in appearance. There was a reduced range of movement in flexion by 30 degrees. There was moderate tenderness to deep palpation. There were no neurological deficits affecting the relevant dermatomes. His lumbar spine was normal in appearance. There was a significantly reduced range of movement in all planes. There was severe tenderness to deep palpation. There were positive neurological deficits affecting the lower limbs, the right more so than the left. Straight leg raise test was reduced at 60 degrees. Examination of the plaintiff's knees and right hand and wrist, were all normal.

14 Dr. McGrath noted that the plaintiff had had six sessions of physical therapy and had been on a six week course of anti-inflammatories. He was of the opinion that the plaintiff's capacity for lifting and carrying, for bending, kneeling or squatting, for sitting, standing and climbing stairs, were all severely adversely affected. He noted that recovery had been very slow and painful, despite aggressive physiotherapy and chiropractic treatments and daily use of anti-inflammatory medication. He noted that the plaintiff had daily sciatic pain radiating predominantly to the right buttock and lower limb. He had low mood and depression. He experienced neck and shoulder pain and stiffness. He had referred pain to the dermatomes affected by the bulging of degenerated discs as seen from the MRI report.

15 Dr. McCarthy noted that the plaintiff worked in a job that required excellent strength and flexibility. His work capacity had been significantly reduced by his injury. He was aggressively following the treatment protocols set down by the G.P. and his physical therapist. Even still, his recovery had been slow and prolonged. He was unable to pursue his sporting hobbies, such as long distance running and gym work. He noted that the plaintiff was a keen amateur sportsman.

16 Dr. McCarthy was of the opinion that the MRI...