Lopes v Walker

• Jurisdiction: Ireland
• Judge: LYNCH J.
• Judgment Date: 19 July 1999
• Neutral Citation: [1999] IESC 57
• Docket Number: 240/98
• Court: Supreme Court
• Date: 19 July 1999

LOPES v. WALKER

BETWEEN

ANTONIO CASIMIRO LOPES

Plaintiff/Appellant

and

ANDREW WALKER

Defendant/Respondent

[1999] IESC 57

240/98

THE SUPREME COURT

Synopsis

Damages

Damages; personal injury; professional negligence; respondent solicitor failed to transfer appellant's personal injury action from Circuit Court to High Court; appellant dissatisfied with assessment of damages made by High Court; whether punitive damages should be awarded; whether appeal should be judged solely on basis of evidence adduced before the High Court without regard to appellant's post-trial affidavit; whether Court should interfere with award of damages; whether case should be remitted to High Court for reassessment of damages.

Held: No basis in law for awarding punitive damages in this case; appeal judged solely on the basis of evidence adduced before the High Court; award of damages for past pain and suffering is not of itself so low as to justify the Court interfering with it; award of damages for future pain and suffering, including loss of earning capacity, set aside; award of damages reassessed by the Court at £155,000.

Lopes v. Walker - Supreme Court: Hamilton C.J., Lynch J., Barron J. - 19/07/1999

The plaintiff was not entitled to introduce new evidence on appeal. The Supreme Court accepted that the assessment of damages made by the High Court was low. Given the long duration of the proceedings to date, it was preferable that the Supreme Court assess damages rather than remitting the matter to the High Court again. If the matter was remitted to the High Court the plaintiff would be entitled to introduce new evidence of loss and damage; therefore the Supreme Court should assess damages on the evidence that would be available to the High Court if the case was remitted. The High Court so held in awarding damages of £155,000.

Citations:

HAY V O'GRADY 1992 1 IR 210

DALTON V MIN FOR FINANCE 1989 IR 269

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

LYNCH J.

[NEM DISS]

HISTORY OF THE LITIGATION

1 This case has had a long and chequered history. In the first instance it arises out of a road traffic accident which happened about 7.00 p.m. on the 11th December, 1988, near Newbridge, Co. Kildare when a motor car ran into the rear of the plaintiffs stationary van. The plaintiff was then living in Waterford and he consulted a Waterford firm of solicitors. Proceedings were issued prematurely by this firm of solicitors in the Kildare Circuit Court which then had a jurisdictional limit of £15,000 in awarding damages for tort. The plaintiff was dissatisfied with a limitation of £15,000 for damages in his case and he engaged the defendant to take over the case from the Waterford solicitors with a view to having the action transferred to the High Court.

2 No application was made to the Kildare Circuit Court to transfer the action to the High Court. The case ultimately went on in Naas, Co. Kildare Circuit Court on the 14th May, 1991, and the plaintiff was awarded £10,000 for general damages together with £2,000 special damages. The plaintiff was wholly dissatisfied with this award and with the handling of his case by the defendant and he promptly commenced these proceedings in the High Court by the issue of a plenary summons on the 19th July, 1991. These proceedings came on for hearing before the High Court in 1995 and were dismissed by an order of the High Court made on the 31st March, 1995. The plaintiff appealed to this Court where he succeeded and the case was remitted to the High Court to assess damages only, liability having been found by this Court on the part of the defendant especially in relation to the failure to apply to have the case transferred to the High Court. The circumstances of the litigation up to that hearing in the Supreme Court are outlined in detail in the three judgments delivered by the three judges of the Supreme Court on the 28th July, 1997.

BACKGROUND FACTS

3 The plaintiff is of Portuguese nationality and his vernacular language is Portuguese but he has a very good command of the English language. He was born in the Cape Verde islands on the 17th July, 1951. He came to Ireland about the middle of the year 1985, some 3½ years before the road traffic accident. He had an extramarital household in Ireland including a son who would be now about seventeen years old. He was a navigator or naval officer qualified to serve as such on merchantships. Before he came to Ireland in 1985 his earnings as a merchant ship's officer were about £18,000 nett per year. He adduced evidence in the High Court that if he were back at sea in 1998 he would be earning between £40,000 and £50,000 per year. An important issue in this case was whether or not the plaintiff intended to return to sea at any time in the future. In the 3½ years since he came to Ireland he had opened a small corner shop type business in Waterford and had also acquired a van in which he employed a man to run a business from the van as a "chipper". In more recent times he had left Waterford and moved to Dublin where he had opened a similar sort of corner type shop which has, however, failed as a business and is now closed.

THE ASSESSMENT AS ORDERED BY THE SUPREME COURT

4 The assessment of damages came on for hearing before the High Court (Geoghegan J.) on Friday the 26th of June, 1998 and continued on Tuesday the 30th of June and Wednesday the 1st of July, 1998 with judgment delivered on Thursday the 2nd of July, 1998. The learned trial judge assessed total damages at £52,125.47 and, having given credit to the defendant for the general damages awarded by the Kildare Circuit Court, he entered judgment for £42,125.47. This judgment was perfected on the 21st of July, 1997. The plaintiff was dissatisfied with the assessment of damages and served a notice of appeal on the 10th of August, 1998 within the time prescribed by the rules of the Superior Courts.

5 The notice of appeal sets out the grounds of appeal in numerous paragraphs and subparagraphs, so numerous that they total slightly over 100 alleged grounds. This Court has to try to distil some sort of reality and order from such prolixity. The appeal in summary relates to:

6 (1) Past special damages and particularly relating to alleged past loss of earnings.

7 (2) Future special damages and particularly relating to alleged future loss of earnings.

8 (3) Past general damages for the plaintiffs injuries and their effect on him.

9 (4) Future general damages for the plaintiffs injuries and their continuing effect on him into the future.

10 In the course of his judgment the learned trial judge is recorded at page 1 and page 2 of the transcript for the 2nd of July, 1998 as saying:

"The two major issues which I have to consider therefore are:"

(1) Did the plaintiff sustain a prolapsed disc as a consequence of the original accident?

(2) The question of loss of earnings from work at sea. This latter issue involves the determination, if necessary, of two separate questions.

11 a A. Is it the case that if there had been no accident, and the plaintiff's newsagent business failed he would, as a matter of probability, have returned to sea, either full-time or part time?

12 b B. If so, has the plaintiff discharged the onus of proof on him of showing that his injuries resulting from the accident prevent him returning to sea?

13 The mere existence of the permanent certificate [that is a certificate of unfitness for work as a seaman on merchant ships] is not of itself sufficient, given that it is reversible and that the certifier did not himself have all the facts before him. The Court would therefore have to form its own view. On the first issue I am satisfied by the evidence which I have heard that the plaintiff sustained a prolapsed disc injury as a result of the original accident and was therefore misdiagnosed. I accept the evidence of Mr. O'Laoire and the opinion which he expressed. I also find that the relevant factual information before Mr. O'Laoire, on foot of which he has formed his view, was accurate.

14 He explained that the plaintiff has an unusual lumbar disc protrusion, in that it was central and he elaborated on the significance of this in relation to his diagnosis. He also explained how...