Fitzgerald v Kenny

• Jurisdiction: Ireland
• Judge: BLAYNEY J.,O'Flaherty J.
• Judgment Date: 24 March 1994
• Neutral Citation: 1994 WJSC-SC 664
• Court: Supreme Court
• Docket Number: 299/87,[S.C. No. 299 of 1987]
• Date: 24 March 1994

FITZGERALD v. KENNY

BETWEEN

JAMES FITZGERALD

Plaintiff/Appellant

AND

WILLIAM KENNY AND MARY FOUHY

Defendants/Respondents

1994 WJSC-SC 664

Finlay C.J.

O'Flaherty J.

Egan J.

Blayney J.

Denham J.

299/87

THE SUPREME COURT

Synopsis:

PRACTICE

Appeal

Evidence - Further evidence - Admission - Leave - Application - Test applicable - Loss of future earnings - Amount awarded inadequate - Inadequacy revealed by event occurring after date of judgment - Basic assumptions at trial falsified by subsequent events - Special leave not required - General discretion of appellate court - Rules of the Superior Courts, 1986, order 58, r. 8 - (299/87 - Supreme Court - 24/3/94) - [1994] 2 ILRM 8

|Fitzgerald v. Kenny|

SUPREME COURT

Appeal

Further evidence - Production - Leave - Application - Damages - Inadequacy - Assessment of loss of earnings after judgment - Inadequacy of assessment revealed by events subsequent to judgment - (299/87 - Supreme Court - 24/3/94) - [1994] 2 ILRM 8

|Fitzgerald v. Kenny|

Citations:

RSC O.58 r3

RSC O.58 r8

DALTON V MIN FOR FINANCE 1989 IR 269

EIRE CONTINENTAL TRADING CO LTD V CLONMEL FOODS LTD 1955 IR 170

LIM POH CHOO V CAMDEN & ISLINGTON AREA HEALTH AUTHORITY 1980 AC 174

MURPHY V STONE WALLWORK LTD 1969 2 AER 949

MULHOLLAND V MITCHELL 1971 AC 666

1 Judgment of O'Flaherty J.delivered on the24th day of March, 1994. [FINLAY, EGAN, DENHAMCONC]

2 The plaintiff, James Fitzgerald, is a former member of the garda siochana and is now aged 35 years. He met with two accidents: one on the 13th September, 1983 and the other on the 28th July, 1985. In the first accident theplaintiff was a passenger in Mr. Kenny's motor car which went off the road and collided with a pillar near Newcastle West, Co. Limerick. In the second accident the plaintiff was driving his own car in the city centre in Cork when Miss Fouhy's car collided with the rear of his car which was then stopped in traffic.

3 While, initially, in regard to the first accident there was a question of a seat belt issue, this was resolved in favour of the plaintiff and, so, the two cases went on as assessment of damages exclusively. While the actions were not formally consolidated they were heard together by the same judge.

4 To dispose of the second accident first, as did the learned High Court judge (Mr. Justice Lynch), the judge concluded in the course of his judgment delivered on July 23rd, 1987, that the plaintiff suffered a whiplash injury to his neck; he had some headaches and neck pain and he found that the plaintiff had suffered from migraine even before the accident and therefore he could expectto suffer from time to time but the headaches were, he found, to some extent exacerbated by the whiplash injury. He awarded total general damages for this accident of £5,000 and he also allowed certain items of special damage. While, there is an appeal in respect of this case, too, it is of no relevance to what is immediately to the forefront in this present application which is one to adduce additional evidence and which relates to the first accident of 13th September, 1983 and to which I nowturn.

5 In his judgment, the learned trial judge dealt with the plaintiff's main injuries which were to his left arm and back and concluded that there was no dispute in regard to the injuries sustained so far as the plaintiff's left arm was concerned; that he had suffered a serious injury. He had a spiral fracture of the humerus of the arm between the elbow and shoulder and that required plating and screws in order to heal the fracture. He also sustained bruising of the radial nerve. Following the operation for the plating and the insertion of thescrews the plaintiff was suffering from a condition known as dropped wrist. The judge found that while the plaintiff had made a reasonably good recovery from the left arm condition that he would continue to have significant residual sensory loss, discomfort and some weakness there. He went on to say:

"The risk of further .... damage to the radial nerve, if an attempt is made to remove the plate and screws, is generally balanced against the benefits of a successful removal of the plate and screws, and the doctors differ as to whether such an operation should be undertaken or not. Obviously, again, this creates a quandary for the plaintiff."

6 He dealt with the plaintiff's back injury and he resolved a conflict of medical testimony in favour of the plaintiff by holding that he did develop back trouble in an acute form a year after the accident which resulted in the necessity for a myelogram and a laminectomy in November and December, 1984. Thesehe held were attributable to the accident.

7 So he assessed damages as follows:

general damages to date	£17,500
general damages in the future	£12,500
special damages to date (including loss ofearnings)	£2,941.61
loss of earnings in the future	£18,135.60

8 The plaintiff by his notice of appeal dated 29th September, 1987 submits that the general damages that he had been awarded by the learned trial judge were not sufficient; he also now seeks to add as a ground of appeal that the amount given for loss of earnings in the future was insufficient. This was indicated in the notice of motion dated the 6th January, 1994 brought on behalf of the plaintiff whereby he seeks to adduce new evidence as to the alteration in his circumstances, which may be described as follows:-

9 (a) the plaintiff has lost his job as a garda because of hisinjuries.

10 (b) the condition of the plaintiff's left arm has continued to deteriorate and is a source of pain and disability such that the plaintiff is seriously disabled and is in need of long-term medicaltreatment.

11 (c) the plaintiff is suffering from severe depressive illness which is related to his physical complaint.

12 A perusal of the transcript of evidence reveals that while it was the plaintiff's case, accepted by the trial judge, that he would lose some allowances in his work as a garda neither side adverted to the possibility that he might be let go from the garda altogether. At the time of the trial it appears that he had been assigned to indoor office duties only. Up until his accident, he had done many specialised activities, such as patrol car driving; security duties and other forms of specialised duties. He said that he was ambitious to progress in thegarda. After the trial, however, it appears that the condition of his arm was getting worse all the time. He has sworn that his arm was a continuous problem for him and that he had continuous pain and, so, he was eventually discharged from the garda on the 25th March, 1991 on medical grounds because of his injuries.

13 The figure of £18,135 for future loss of earnings was arrived at by the trial judge by allowing the plaintiff a figure based on actuarial evidence concerning the net loss of certain allowances. However, as I have said, it was in no-one's contemplation at the time of the trial - and the case was certainly not made - that there was even a possibility that he would be discharged from the garda.

14 Therefore, it is submitted on behalf of the plaintiff, his circumstances have changed dramatically since the date of the trial so as to call in question the justice of the verdict that was entered in his favour. While the word "falsified"is sometimes used in this context, for my part I would prefer to say that a verdict may have become distorted because the former word gives the impression that someone may have brought about what may turn out to be an injustice when the true position is that such was never intended by anyone.

15 While the loss of his job is one that is the most palpable completely new factor in the case, it has also been submitted on the hearing of this application to adduce additional evidence that the condition of the plaintiff's left arm has continued to deteriorate in a way that was neither anticipated nor debated by any of the witnesses in the High Court. The plaintiff has undergone an operation since the trial on the 21st July, 1989 by Mr. John Curtin, consultant orthopaedic surgeon; Mr. Curtin, in turn, referred him to Dr. T.N. Fogarty, director of pain relief service at Cork Regional Hospital and Dr. Fogarty treated the plaintiff on many occasions beginning on the 22nd August, 1989. Further, it has been submitted on behalf of the plaintiff that he is sufferingfroma depressive illness and has been admitted to hospital on a number of occasions because of this.

16 The plaintiff has also set out in the course of his affidavit a number of other business and family misfortunes which I do not think are germane to this application to adduce fresh evidence. These might be matters that would become relevant if a re-trial is ordered. I emphasise, however, that I make no finding whatever in regard to them for the purposes of this application.

17 Order 58, rule 3, s. 8 of the Rules of the Superior Courts, 1986,provides:-

"The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in court, by affidavit, or by deposition taken before an examiner orcommissioner. Such further evidence may be given without special leave upon any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon any appeal from a final judgment or order such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Supreme Court (obtained upon application therefor by motion on notice setting forth such specialgrounds).... 1"

18 It will be clear that his loss of job as a garda is something which has occurred after the trial.

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