Joseph Coughlan v Kerry Ingredients (Ireland) Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 23 March 2022 |
| Neutral Citation | [2022] IEHC 195 |
| Court | High Court |
| Docket Number | [Record No. 2019/2247P] |
[2022] IEHC 195
[Record No. 2019/2247P]
THE HIGH COURT
Damages – Injury – Referable – Plaintiff seeking damages – Whether the plaintiff’s complaints of pain and resultant disability were referable to the accident
Facts: The plaintiff, Mr Coughlan, on 23rd July, 2017, while acting in the course of his employment with the defendant, Kerry Ingredients (Ireland) Ltd, fell partially into a hole. He struck his lower back against the edge of the hole. Liability for the accident was not in issue. The plaintiff’s treating doctors and expert witnesses were of the view that the plaintiff suffered a soft tissue injury, which was superimposed on pre-existing degenerative changes, which had been asymptomatic prior to the accident. It was their view that the plaintiff had gone on to suffer chronic pain, which would require a multifaceted approach to treatment, in the form of pain relieving injections and nerve denervation, pain medication, physiotherapy and psychological treatment. They were of the view that he would never be fit for his pre-accident employment, but, with completion of an intensive rehabilitation programme, he may be fit for light work in the future. The defendant’s doctors were of the opinion that the plaintiff’s symptoms and disability were not referable to whatever minor soft tissue injury the plaintiff may have suffered at the time of the accident. The core issue for resolution by the High Court was whether the plaintiff’s complaints of pain and resultant disability were referable to the accident.
Held by Barr J that the court preferred the evidence of the plaintiff’s expert witnesses that the injury was superimposed on a significantly degenerative back, which had given rise to persistent symptoms; that their chronicity may be due, to some extent, to psychological factors, was not relevant, as long as the court was satisfied that the plaintiff was not deliberately malingering, or trying to exaggerate his symptoms and disability. Having watched the plaintiff give evidence over a number of days in the course of the trial and having regard to his pre-morbid functioning, the court was entirely satisfied that that was not the case. The court assessed general damages to date in the sum of €60,000. The court awarded the sum of €20,000 to compensate the plaintiff for his future pain and suffering while undergoing the rehabilitation programme and moving back to a more normal life. The court assessed what would be past loss of earnings as of 28th March, 2022, in the sum of €121,973, net of the RBA deduction. The court proposed allowing the plaintiff a further one year’s loss of earnings into the future, which would amount to the sum of €46,332 (€891 x 52); given that the plaintiff would not be able to earn anything during the first six months, this would give rise to RBA liability of €6,799 (€261.5 x 26). Barr J held that there would be no RBA liability in the second six months, as presumably the plaintiff would lose his invalidity pension once he returned to work on a phased basis; this would give rise to a net figure for loss of earnings for the year of €39,533. The court accepted the evidence given by Mr Tennant in his updated report that the plaintiff had suffered a loss of pension contributions of €17,083. Barr J noted that there were agreed other special damages in the sum of €10,000.
Barr J held that adding the various heads of damages together gave a total award of €268,589; that figure was net of the RBA amount. Barr J held that the amount for RBA purposes as of 28th March, 2022 would be €49,996.40. Barr J held that the probable amount for RBA purposes for the following six months thereafter, would be €6,799; however, that matter would have to be clarified with the appropriate authorities as and when that amount fell to be paid. Barr J deducted that amount from the plaintiff’s future loss of earnings.
Damages awarded to plaintiff.
JUDGMENT of Mr. Justice Barr delivered electronically on the 23rd day of March, 2022.
The plaintiff is a married man with two children. He is 58 years of age, having been born on 6th January, 1964. He has worked all his life since leaving school at the age of 16 years. For the past 22 years he has been employed by Golden Vale Foods, which was subsequently taken over by the defendant.
On 23rd July, 2017, while acting in the course of his employment with the defendant, the plaintiff fell partially into a hole. He struck his lower back against the edge of the hole. The court had the benefit of watching a CCTV recording of the accident. Liability for the accident is not in issue.
The plaintiff worked on for the remainder of his shift, for approximately one hour. He went home at approximately 16.00 hours. He returned and did a further shift from midnight to 08.00 hours.
Two days after the accident the plaintiff went to his GP complaining of severe lower back pain. He remained out of work until 9th October, 2017. The plaintiff took extended holidays in November and December 2017. He returned to work in January 2018. He was out sick again with the flu for two weeks in February. The plaintiff then went out sick again due to a flare-up of his back pain in early March 2018. He returned to work in June 2018, but had to stop work again in July 2018 due to ongoing back pain. He has not worked since.
The plaintiff's case is that he has developed chronic pain in his back, which has rendered him unfit for work. He states that he is significantly disabled in all aspects of his life. He has been treated by a pain specialist, who has administered five/seven epidural injections and/or nerve denervation procedures. He has had extensive physiotherapy treatment since the time of the accident. He is on a cocktail of strong pain relieving medication. He states that he continues to experience pain most days, but would have approximately two good days per week.
In essence, the plaintiff's treating doctors and expert witnesses, are of the view that the plaintiff suffered a soft tissue injury, which was superimposed on pre-existing degenerative changes, which had been asymptomatic prior to the accident. It is their view that the plaintiff has gone on to suffer chronic pain, which will require a multifaceted approach to treatment, in the form of pain relieving injections and nerve denervation; pain medication; physiotherapy and psychological treatment. They are of the view that he will never be fit for his pre-accident employment, but, with completion of an intensive rehabilitation programme, he may be fit for light work in the future.
The defendant's medical evidence was to the effect that the plaintiff suffered a minor soft tissue strain to his back, which should have recovered within twelve/eighteen months at most.
The defendant's medical experts are of the view that his ongoing complaints of pain are referable to the pre-existing degenerative changes in his back. They further argue that he has allowed himself to become physically deconditioned, by not exercising and by not doing any work, which has led to the muscles in his back becoming weak, which in turn, has caused or exacerbated the pain that he suffers due to the degenerative changes in his spine.
The defendant's expert, Mr. Kaar, was further of the view that there were considerable psychological factors leading to the plaintiff's ongoing complaints of pain and disability. In particular, he stated that it was only after the MRI scans had revealed extensive degenerative changes, that the plaintiff became aware of such condition in his back and that it was probably as a result of learning that information, that he came to view himself as being permanently injured. It was their view that the plaintiff had assumed an invalid role, which had led to his withdrawal from activity, which in turn had led to his becoming physically deconditioned, leading to further exacerbation of his pain.
In short, the defendant's doctors are of the opinion that the plaintiff's current symptoms and disability are not referable to whatever minor soft tissue injury the plaintiff may have suffered at the time of the accident. However, Mr. Kaar conceded that the plaintiff was a genuine person.
The core issue for resolution by the court is whether the plaintiff's current complaints of pain and resultant disability are referable to the accident.
An MRI scan taken on 1st September, 2017, was reported as showing facet ligamentous hypertrophy, with moderate central canal stenosis, most pronounced at L3 – 4 and L4 – 5; with moderate bilateral osteolytic L3 – 4 exit foraminal stenoses. That was summarised as showing: moderate degenerative disc disease in the lower lumbar spine, with central canal stenosis at L3 for exit foraminal stenoses as described.
The follow-up MRI scan taken on 19th June, 2018 showed the following: at L3 – 4 there was a broad-based disc extrusion, asymmetric to the right, contacting and displacing the thecal sac and contacting the right exiting nerve root, in combination with facet joint arthrosis, leading to bilateral neural foraminal stenosis on the right greater than the left. At L4 – 5, there was a central disc bulge affecting the thecal sac. There was bilateral facet joint arthrosis. Bilateral neural foraminal stenosis, on the left greater than the right. At L5 — S1, there was a mild central disc bulge. The summary stated that there was normal signal from the conus. There were degenerative changes most marked at L3 – 4 as described.
As there is considerable debate about the cause of the plaintiff's symptoms and disability since the time of the accident, it will be useful to look at his pre-accident history. The plaintiff left school in 1980, having passed the Group...
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