Healy v HSE

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 24 February 2023
• Neutral Citation: [2023] IEHC 128
• Court: High Court
• Docket Number: [2016 1043P]

Between

Susan Healy

Plaintiff

and

The Health Service Executive

Defendant

[2023] IEHC 128

[2016 1043P]

THE HIGH COURT

Personal injury – Assessment of damages – Causation – Plaintiff seeking damages for a slip and fall in the hospital of the defendant – Whether the plaintiff’s injuries were attributable in whole or in part to a subsequent rear impact road traffic collision

Facts: Before the High Court was an assessment of damages claim for a slip and fall in the shredding room of the hospital of the defendant, the Health Service Executive, at Mulgrave Street, Limerick on 7 November 2013. The principal injury related to the shoulder of the plaintiff, Ms Healy, with residual complaints of intermittent pins and needles on the middle three fingers of her left hand, and with continuing discomfort and restriction in the left knee. The defendant focused its defence of the claim at trial on: (i) whether the plaintiff’s injuries may be attributable in whole or in part to the subsequent rear impact road traffic collision on 30 December 2013 (the RTA), following which she issued separate High Court proceedings on 23 November 2016 which were settled in 2022 for €10,000 to include costs (the personal injury summons for that claim had record number 2016 10438); (ii) whether the “possible slight reduction in the height of the disc and slight broadening of the disc bulge at C5/C6” detected from examining MRI scans taken in May 2014 and April 2019 had caused the ongoing symptoms in the left shoulder, as opposed to coming from the fall or the RTA; and (iii) the weight to be given to the oral evidence of Mr Gilmore who was requested by the plaintiff’s solicitor to examine the plaintiff, as opposed to having been requested by the plaintiff’s general practitioner, Dr Daly.

Held by O’Connor J that the plaintiff, even on the defendant’s evidence, suffered soft tissue strains in a fall at work. O’Connor J accepted Mr Gilmore’s explanation of how the plaintiff’s left shoulder, left knee and paraesthesia were attributable to the fall. O’Connor J noted that Mr Tansey, consultant trauma and orthopaedic surgeon, was not given the opportunity to comment on Mr Gilmore’s reasoning. In the context of the principal injury, the shoulder, O’Connor J held that Mr Gilmore was supported by the account and views expressed by the plaintiff’s treating shoulder and elbow surgeon, Mr Mullet. O’Connor J held that the plaintiff’s degenerative changes as identified in the MRI scans had indeed influenced the sequelae. O’Connor J held that Mr Gilmore’s answers to counsel and the Court were consistent in opining that the plaintiff “could of course have developed” her symptoms because of the changes without the fall at some stage since 2013. O’Connor J noted that Mr Tansey was not made available to the Court to opine on the effects of the scenario which he had discounted and which the Court accepted. O’Connor J noted that none of the other reporting medical practitioners helped to pinpoint if and when the plaintiff would have encountered her shoulder problems or problems similar to those. O’Connor J held that the description given by Mr Gilmore and Dr Daly about the sequelae for the plaintiff’s left knee were accepted by the Court as they corresponded with the plaintiff’s own account in evidence. O’Connor J considered that the plaintiff’s knee injury had been more of a discomfort giving rise to some restriction which she had learned to manage.

O’Connor J assessed general damages for the period from November 2013 to February 2023, noting that the plaintiff had not satisfied him that all of her shoulder complaints could be attributed to the fall, at €30,000. O’Connor J held that the plaintiff’s ongoing knee discomfort and potential restriction on lifestyle merited some recognition for future general damages, which he assessed at €7,000. Special damages were agreed at €4,588.38, and therefore O’Connor J made an order directing the defendant to pay the sum of €41,588.38.

Damages awarded to plaintiff.

Mr. Downing SC, Mr. McMahon SC and Ms. Finn BL for the Plaintiff.

Holmes O'Malley Sexton Solicitors for the plaintiff.

Mr. Tuite SC and Mr. Lehane BL for the defendant.

Harrison O'Dowd Solicitors for the defendant.

Judgment delivered on 24 February 2023 by Mr. Justice Tony O'Connor

1 . Before the Court is an assessment of damages claim for a slip and fall in the shredding room of the defendant's hospital at Mulgrave Street, Limerick on 7 November 2013. The principal injury now relates to the plaintiff's shoulder, with residual complaints of intermittent pins and needles on the middle three fingers of her left hand, and with continuing discomfort and restriction in the left knee. The defendant focused its defence of the claim at trial on:-

• (i) Whether the plaintiff's injuries may be attributable in whole or in part to the subsequent rear impact road traffic collision on 30 December 2013, (“The RTA”), following which she issued separate High Court proceedings on 23 November 2016 which were settled last year for €10,000 to include costs. The personal injury summons for that claim had record number 2016 10438.

• (ii) Whether the “… possible slight reduction in the height of the disc and slight broadening of the disc bulge at C5/C6” detected from examining MRI scans taken in May 2014 and April 2019 has caused the ongoing symptoms in the left shoulder, as opposed to coming from the fall or the RTA.

• (iii) The weight to be given to the oral evidence of Mr. Michael Gilmore who was requested by the plaintiff's solicitor to examine the plaintiff, as opposed to having been requested by the plaintiff's general practitioner.

Medical reports

2 . At the beginning of the trial, I ruled that the defendant could call Mr. Kapoor, who had furnished a report to the Personal Injuries Assessment Board (“PIAB”) in December 2015. Following the plaintiff's evidence and the oral evidence of Mr. Gilmore, counsel for the parties informed the Court that the following medical reports could be admitted as evidence:-

• (i) Report of Mr. Kapoor, consultant orthopaedic surgeon, dated 13 December 2015;

• (ii) Report of Mr. Cormac Tansey, consultant trauma and orthopaedic surgeon to the defendant's solicitors dated 30 April 2020 and 7 November 2022;

• (iii) Report of Dr. Michael Griffin, the plaintiff's general practitioner, dated 29 July 2014 to the plaintiff's solicitor;

• (iv) Reports of Mr. Hannan Mullet, consultant shoulder and elbow surgeon (who had treated the plaintiff), dated 1 May 2015 and 20 May 2021 to the plaintiff's solicitors.

• (v) The report of Dr. Gillian Daly, the plaintiff's general practitioner, dated 23 May 2022, to the plaintiff's solicitor.

3 . Counsel clarified at my request that the issues of opinion in dispute between Mr. Kapoor and Mr. Tansey on the one hand, and Mr. Gilmore as supported to a large extent by Mr. Mullet on the other, was a matter for the Court to decide upon, having regard to the questioning of Mr. Gilmore. In other words, the Court is asked to have regard to the written reports of those practitioners who did not give oral evidence “in the context of the evidence [the Court has] from Mr. Gilmore”. Counsel for the defendant did not object to the adducing of evidence from Mr. Gilmore but emphasised that regard could be had by the Court to the fact that Mr. Gilmore had only been requested to review the plaintiff by her solicitor.

Issues opined upon by Mr. Gilmore

4 . Counsel for the defendant put to Mr. Gilmore that he did not have the records of the plaintiff's general practitioner or more particularly those records of attendances on 22 November 2013 and 15 January 2014. Mr. Gilmore so confirmed, and counsel put the contents of those records to him. Mr. Gilmore confirmed that he had elicited the relevant details from the plaintiff and that the contents did not cause him to change his view which I will summarise now. Mr. Gilmore explained that the delayed onset of the shoulder symptom and...