McFadden v Weir

 
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[2005] IEHC 473

THE HIGH COURT

[No. 7674P/2001]
MCFADDEN v WEIR

BETWEEN

SHANE McFADDEN
PLAINTIFF

AND

AISLING WEIR
DEFENDANT

2001/7674P - Budd - High - 16/12/2005 - 2005 42 8740 2005 IEHC 473

CIVIL LIABILITY (AMDT) ACT 1964 S2

DENNEHY v NORDIC COLD STORAGE LTD UNREP HIGH COURT HAMILTON 8.5.91

DENNEHY v NORDIC COLD STORAGE LTD UNREP HIGH COURT HAMILTON 8.5.91

HERBERT MISLEADING CASES IN THE COMMON LAW 1989

HOPKINS & SMITH WILLARD & SPACKMAN'S OCCUPATIONAL THERAPY 8ED 1993

CIVIL LIABILITY ACT 1961 S50

GREENE v HUGHES HAULAGE LTD 1997 3 IR 109 1998 1 ILRM 34

BRADBURN v GREAT WESTERN RAILWAY COMPANY 1874 LR 10 EX 1

PARRY v CLEAVER 1969 1 AER 555 1970 AC 1

GRAHAM v BAKER 1961 106 CLR 340

GUY v TRIZEC EQUITIES LTD 1979 99 DLR (3D) 243

WOODMAN MATHESON & CO LTD v BRENNAN 1941 75 ILTR 34

SINNOTT v QUINNSWORTH 1984 ILRM 523

MCENEANEY v MONAGHAN CO COUNCIL & COILLTE TEORANTA UNREP O'SULLIVAN 26.7.2001 2003/40/9627

N (M) v M (S) UNREP SUPREME 18.3.2005

KEALY v MIN FOR HEALTH 1999 2 IR 456

GOUGH v NEARY 2003 3 IR 92 2004 1 ILRM 35

ROSSITER v DUN LAOGHAIRE-RATHDOWN CO COUNCIL 2001 3 IR 578

MCGRATH v BOURNE 1876 IR 10 CL 160

FOLEY v THERMOCEMENT LTD 1954 90 ILTR 92

FOLEY v THERMOCEMENT LTD 1954 90 ILTR 92

PERSONAL INJURIES ASSESSMENT BOARD BOOK OF QUANTUM JUNE 2004

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S22(2)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S22(1)

DAMAGES

Personal injuries

Road traffic accident - Assessment -Proportionality - Whether insurance monies to be considered in assessment - Book of Quantum - Greene v Hughes Haulage Ltd [1997] 3 IR 109 and Rossiter v Dun Laoghaire Rathdown Borough Council [2001]3 IR 578 followed - Civil Liability(Amendment) Act 1964 (No 17), s 2 -Damages of EUR1,246,233.00 awarded(2001/7674P - Budd J - 16/12/2005) [2005] IEHC 473

McFadden v Weir

Mr. Justice Declan Budd
1

The plaintiff at the time of a road accident on 7th August, 2000, was then a senior insurance manager aged 50, having been born on 15th October, 1949, and is now 56 years of age. He and his wife Sophia have been married for twenty four years and they have resided for the last eighteen years in a very well maintained bungalow set on an acre of fine garden outside Saggart in County Dublin. The house is well situated with spectacular views towards Rathcoole and its environs. They have two children both of whom still live at home, being a twenty one year old daughter, who works as a receptionist in a communications company in Tallaght, and a son of eighteen years who has deferred starting college this autumn. On 7th August, 2000, the plaintiff was returning in his 1994 Mercedes car with his wife from Carlow where they had both been playing golf. For most of his life the plaintiff has been an avid golfer having at one time played off a four handicap. In August, 2000, he was captain of his local golf club, Newlands, which involved him in a considerable commitment to the club. He took much pleasure from playing on courses all over Ireland, both for the purposes of recreation and socialising and also as an enjoyable part of his job as a Senior Executive Sales Manager and Assistant Director of Allianz, which is a recent amalgam of a number of insurance companies. In particular the former Church and General was part of the group and it would have historically had a considerable number of ecclesiastical clients among its customers countrywide.

2

The plaintiff had responsibility for keeping in touch with the clientele all over Ireland and no doubt one reason why he particularly liked and was good at his job was that as a tall, handsome, fit, able and conscientious employee with a love of sport and the outdoor life, he particularly enjoyed dutifully visiting clients around the country. Being of sociable and personable character, competent and well organised, no doubt he relished meeting clients and having a game of golf with them on the great golf courses of Ireland.

3

The plaintiff was returning home with his wife after the Bank Holiday weekend and had stopped in a line of traffic on the Naas dual carriageway heading in the Dublin direction, about opposite to the Ambassador Hotel. He was stationary in a line of traffic governed by red traffic lights at the turn off to Kill village, which is in to the part of the village closest to Dublin. He and his wife were returning from playing golf in a mixed competition at Carlow Golf Club where he is also a member. He had slowed and stopped opposite the Ambassador Hotel in a tail back when he saw in his rear view mirror a car coming fast from behind. The sight of this speeding car caused him to brace himself. The defendant's car was a Nissan Micra which drove into the rear of the defendant's Mercedes with such a fierce impact that it pushed the plaintiff's car into a Transit Van in front of it. Such was the force of the crash caused by the defendant's Nissan Micra that the Mercedes was so damaged both in front, rear and side that it had to be written off. When one considers the relative weights of the cars involved one can only wonder at what the speed or other factors involved were that caused such a ferocious collision involving four or even five vehicles.

4

Not surprisingly, liability has been admitted. The case comes before this court for assessment of quantum of damages. The plaintiff was wearing his seat belt and indeed it was his wife who had to lean over and undo his seatbelt because, after the impact, the plaintiff found that he was unable to move. He had sustained injury to his spinal cord giving rise to transient tetraparesis. Realising to his horror that he was unable to move from his neck down, he told his wife to get somebody to pull him out if the car should go on fire. He was trapped in the car in fear of fire for over an hour with the temporary paralysis preventing him from moving either his arms or his legs. He also sustained dental injuries from the whiplash movement of his head and this caused damage to his upper and lower teeth. It was the obvious trauma to his cervical spine which caused concern to the medical attendants who arrived. They managed to release him from the car and took him by ambulance to Naas Hospital. By the time the ambulance arrived at Naas, the plaintiff was starting to regain movement of his feet. After five hours in the hospital he could manage to move, eventually being able to walk again. Naas Hospital was full that night and the Registrar allowed the plaintiff to go home, as there was no bed for him, but this was on condition that he come back at 8 a.m. in the morning which he duly did. The Registrar then studied the x-rays, re-examined the plaintiff and referred him to Mr. JP McElwain, the orthopaedic surgeon, who saw him that day being 8th August, 2000. The plaintiff was complaining of numbness in both his hands and in both his legs. By then he had a full range of movement of his neck on flexion and extension but he did still have some pain on lateral flexion and rotation to the right. He had slight blunting of sensation of the index and long fingers. X-rays confirmed considerable degenerative changes in his cervical spine. An MRI scan performed on 5th September, 2000, showed degenerative signal alteration and disc space narrowing involving many of the mid and lower cervical levels, particularly C3/4, C5/6 and C6/7. At these levels there was marked compromise of the spinal canal with impingement upon the cervical cord anteriorly and at the C3/4 level also posteriorly. A predominant abnormality was at C3/4 level, which appeared to be a focal central disc herniation, but at the other levels the appearances were more in keeping with cervical spondylosis. Mr. JP McElwain had him admitted to Tallaght Hospital on 25th September, 2000. The plaintiff still had tingling in both his hands and symptoms affecting the median nerve distribution and the flexor muscles of the wrists and hands. He had a tight stenosis with restrictive narrowing at C3/4 and a significant spinal cord compression at this level.

5

The plaintiff had been told to be careful and to take things easy from his time in Naas Hospital. By now in Tallaght Hospital he had to endure what was an unusual situation for him; he had incredible pain in his neck and shoulders. If he extended his head backwards he would get pins and needles and the further back he extended his neck, then the further down the pins and needles would go. They would start in his head, then go down his back, across his shoulders, down in to his arms and if he extended his neck further back, they would go down to his hands. From half way down the fingers to the tips on both sides, the fingers would go numb. It was like carrying a child on one's shoulders, the longer the child is there, the heavier it seems to become. He explained that it was a strain watching a computer screen or sitting for a time with his neck in a forward position, with pain varying in levels from maybe levels three to six, seven or eight if sitting for long periods. He said that at times it was easier to stand as he could lean his head back, which he would do while watching TV as far as possible. I noted time and again during the hearings that he quietly and unostentatiously adopted such a posture clearly in an effort to relieve pain.

6

Mr. McElwain referred the plaintiff on to his colleague, Mr. Esmond Fogarty in Tallaght Hospital, who reviewed the plaintiff on 1st October, 2000, when he was complaining of paraesthesia in both hands and the left shoulder and also complained of his legs "jumping" at night. Since the scans showed considerable narrowing at the diameter of the canal at C3/4 which was causing pressure on the...

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