Greene v Hughes Haulage Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IEHC 110
• Court: High Court
• Docket Number: [1993 No. 443P]
• Date: 01 January 1998

[1997] IEHC 110

THE HIGH COURT

No. 443 P/1993

GREENE v. HUGHES HAULAGE LTD.

BETWEEN

MARIAN GREENE

PLAINTIFF

AND

HUGHES HAULAGE LIMITED AND GERARD COLEMAN

DEFENDANTS

Citations:

CIVIL LIABILITY (AMDT) ACT 1964 S2

HUSSAIN V NEW TAPLOW PAPER MILLS 1988 1 AER 541

DENNEHY V NORDIC COLD STORAGE LTD UNREP HAMILTON 8.5.91

CIVIL LIABILITY ACT 1961 S50

MCGREGOR ON DAMAGES 15ED PARA 1594

DAVIES V POWELL DUFFRYN COLLIERIES 1942 AC 601

FATAL ACCIDENTS (DAMAGES) ACT 1908 S1

FATAL INJURIES ACT 1956 S5

BOWSKILL V DAWSON (NO 2) 1955 1 QB 13

GREEN V RUSSELL 1959 2 QB 226

BRADBURN V GREAT WESTERN RAILWAY 1874 LR 10 EX 1

PARRY V CLEAVER 1970 AC 1

PAYNE V RAILWAY EXECUTIVE 1952 1 KB 26

BROWNING V WAR OFFICE 1963 1 QB 750

PARSONS V BNG LABORATORIES LTD 1964 1 QB 95

Synopsis:

[1997] 3 IR 109 -[ 1998] 1 ILRM 34

1 Judgment of Mr. Justice Geoghegan delivered the 28th day of June, 1997.

2 This is ??? motor accident which occurred on the 10th ??? into collision with a juggernaut truck and the ??? car. Liability has been being determined a ???ore??? this Court is only concerned with an assess ??? fifty percent of the sum so assessed.

3 It is quite c??? that this accident has had very serious consequences indeed for the Plaintiff. From being a well paid and ambitions professional in an executive role she is now in a debilitated state. Although she did have genuine physical injuries, I am satisfied that the most serious consequence of this accident is that she has suffered from some kind of post traumatic disorder involving what has been described as post traumatic migraine. The facts of the accident were horrific. It was a collision between a car driven by the Plaintiff and what she describes as a "huge juggernaut". She became trapped for a considerable period in the car following on the accident. Several times in the witness box she broke down when recalling the actual facts of the accident. I do not think that any of this was contrived or put on. I believe that her post traumatic disorder is closely related to the constant presence in her mind of the facts of the accident itself. I think, however that once the proceedings are over and the facts of the accident begin gradually to recede from her mind, there will probably be improvement by degrees and I think that having regard to her previous history of high intelligence and enterprise there is every reason to hope that she may in time make a complete recovery. I therefore must approach the assessment of damages in that light.

4 Before I detail the injuries and symptoms I should make some reference to the fact that the Plaintiff had two other accidents. I have come to the conclusion, however, that she made normal recoveries from the injuries sustained in those accidents and that all her present problems stem from the accident the subject matter of this action.

5 I have already mentioned that the Plaintiff has been suffering from what has been described as a post traumatic migraine. She has had very severe headaches and I think that this is the most plausible explanation for them. In the period since the accident, she sustained double vision, some loss of sight in the right eye, deafness, pain in the chest and back and in her two ankles, urinary problems in the form of frequency, nausca, vomiting, phobias concerning the accident, problems about travelling in a car, depression, mood swings, personality change so that she can be truculent and difficult and has had rows with her mother and former fiancee. She has also sustained aggravation of some degenerative problems. She was badly scarred across the body which can be seen in photographs. There were other symptoms also which she believes were connected with the accident such as vaginal infection, constipation, piles but I do not think that the evidence sufficiently connects them with the accident. I have not set out her injuries and symptoms in any particular order and it is important to note that they did not all arise immediately after the accident and their connection with the accident can therefore be suspect. But I believe that subject to the exceptions which I have mentioned the connection is there. Within a spectrum she is suffering from a severe form of post traumatic disorder.

6 However, the really important consequence of the accident is that the Plaintiff is no longer able to work. At the time of the accident and for a period after it she held the post of Clinical Research Associate with the well known Elan Corporation in Athlone. That post involved her co-ordinating and monitoring of what was known as Phase I to IV clinical trials. Her post was treated as a management grade and she reported directly to the head of the medical department. It was a well paid post that included apart from salary various perks such as a company car and other benefits. Before she took on that post in 1988, the Plaintiff's history was as follows. She was born on the 20th February, 1954 as the older of two girls. She was educated at Laurel Hill Convent School in Limerick and subsequently trained to be a nurse. After periods in two different hospitals in Limerick she spent three years as a public health nurse in Limerick, from 1978 to 1981. She then moved out of nursing and worked with the Irish Epilepsy Association for some time but later became a Medical Executive with Cow & Gate in Wexford. She remained with that company until 1985 but after various other positions in the pharmaceutical business, she eventually applied for and obtained the post in Elan. Following on the accident in June 1991, she found herself unable to go back to work for a considerable period. This was largely because of continuing headaches, urinary frequency, spasmodic double vision, some diminution of sight in the right eye and other symptoms. She eventually went back to work on the 25th November though she didn't feel able for it. She did so, however, under persuasion. Her mother travelled up to be with her and help her. The Plaintiff found she was not able for her work but she remained until her holidays on the 19th December, 1991. She was due to return to work on 6th January, 1992 but did not feel able to do so. By that time she had these migraine headaches which had become much worse and she had some deafness and loss of balance. By a letter dated the 15th May, 1992, Elan notified the Plaintiff that she was being made redundant on the grounds that they no longer had need of her post. She was informed, however, that her full salary would be paid until the 31st July, 1992. The Plaintiff initially did not accept this redundancy as being genuine and lodged a claim before the Employment Tribunal. That claim was ultimately settled on a basis of her leaving the company. There was evidence before this Court that Elan shortly after this redundancy notice advertised a new post which the Plaintiff alleged was in practice similar, although, the new post required medical qualifications which the Plaintiff did not have. The Plaintiff alleges that persons with medical qualifications were rival applicants for her post in 1988. The Plaintiff's failure to return to work was a very real problem for Elan and I cannot help being suspicious that the redundancy might have been less than genuine. But suspicion is not enough and I am satisfied that the Plaintiff has not discharged the onus which would be on her to satisfy this Court that the redundancy notice would not have been served if she had not had the accident and that she would have remained with Elan. For the purposes of assessing loss of earnings in this case, therefore, I am assuming that the redundancy was genuine and operative. As she was paid her salary in full up to the 31st July, 1992 she can only claim loss of earnings from that date.

7 I must now turn to consider on what basis I should approach the question of loss of earnings. There is of course a difficult and important question of whether a deduction will have to be made of monies paid or payable to the Plaintiff under a disability policy taken out for her benefit by her former employer Elan. I will be dealing with that question in some detail later on in this Judgment. First I must consider the question of what loss of earnings should be awarded if no deduction were to be made. First of all, I am satisfied that the Plaintiff by reason of her medical condition which in turn flowed from the accident has been unable to do any work since the 31st July, 1992. Secondly, I believe that the Plaintiff's medical condition will gradually improve once these proceedings are disposed off. Thirdly, I must accept the evidence from Ms. Paula Smith as it conforms with common sense, that having regard to the Plaintiff's age and medical history it would be extremely difficult for her to get herself back in a few years time on to the job market. I believe, however, that once she made a reasonable recovery she would have the motivation to become at least self-employed in some capacity or other. She might for instance do freelance nursing perhaps on a part-time basis at first but more probably she might, as suggested at the hearing, start her own business such as for instance a nursing home. The trouble with all these cases of post-traumatic syndrome is that there can be no guarantee that the Plaintiff will in fact recover and if that happens an injustice may be done by not giving her full loss of earnings into the future. But I can only act on probabilities and it seems to me that on the medical evidence which I have heard, I could not hold that she will never again be capable of earning a living. I do accept however that her full recovery will be gradual and that even if she did decide to start her own business it would take some time before she would be achieving earnings of the order that she would have enjoyed if there was no accident. As against that, I must also take into account that if there...