McLaughlin v Dealey

• Jurisdiction: Ireland
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 07 March 2023
• Neutral Citation: [2023] IEHC 106
• Court: High Court
• Docket Number: Record No. 2020/1440P

Between

Charlena McLaughlin

Plaintiff

and

David Dealey and Health Service Executive

Defendant

[2023] IEHC 106

Record No. 2020/1440P

THE HIGH COURT

Personal injuries – Assessment of damages – Medical witnesses – Plaintiff seeking damages against the second defendant – Whether ongoing back pain was linked to the plaintiff’s original back injury sustained during the course of her workplace accident

Facts: The plaintiff, Ms McLaughlin, claimed for damages against the second defendant, the Health Service Executive (the HSE), arising out of an accident in her workplace on 6 September 2018. The accident happened while the plaintiff was attempting to lift a patient on a trolley bed, with the help of another staff member. Liability was ultimately admitted by the HSE on the second day of the hearing and the case thereafter proceeded as an assessment of damages only. A legal issue was raised at the close of the evidence to the effect that the High Court should attach less weight to the evidence of the consultant orthopaedic surgeon who was called to give evidence on behalf of the plaintiff on the basis that the plaintiff had been referred to that expert directly by her solicitor and not by her GP. All of the independent medical witnesses who met with and examined the plaintiff regarded her as being credible in respect of her account of her symptoms and the fact that she continued to intermittently suffer back pain a number of years on from the accident. Mr Gleeson was alone amongst the three experts in his view that any ongoing symptoms could not be linked to the original accident and injury. Neither Mr Rice nor Mr Burke shared that view and both, as experienced consultant orthopaedic specialists, accepted that the plaintiff appeared to be in the exceptional category of case where a soft tissue injury continued to be problematic many years after the original accident and both were of the view that it was likely that back pain resulting from that injury would continue to recur.

Held by Ferriter J that he was ultimately more persuaded, on balance, by the views of Mr Rice and Mr Burke than those of Mr Gleeson, particularly in circumstances where Mr Burke and Mr Rice each examined the plaintiff on more than one occasion, and where each identified symptoms of tenderness in the lower back pain area on examination in recent times consistent with a continuation of the pain symptoms resulting from the original injury. On the facts of the case, Ferriter J was not persuaded by Mr Gleeson’s view that any ongoing back pain was not linked to the plaintiff’s original back injury sustained during the course of her workplace accident; the evidence pointed firmly to the contrary. While Ferriter J took into account the fact that the plaintiff subsequent to the accident decided not to go down the nursing career path, he did not believe that it was a factor that weighed particularly strongly in assessing damages; the plaintiff had commendably got on with her life and had shown herself more than capable of dealing with the upset caused by not being able to pursue her preferred career path.

Ferriter J held that, in light of all the circumstances, having regard to the fact that the plaintiff had suffered a minor to moderate back injury which had improved over the course of the last four and a half years, but which had nonetheless persisted for that length of time, an appropriate award of damages for general pain and suffering to date was a sum of €35,000. In all the circumstances, doing the best he could in light of the medical evidence which he had heard, and bearing in mind the inherent uncertainties as to the likely future course of the plaintiff’s injury, Ferriter J believed that an appropriate figure of damages to compensate for pain and suffering into the future was €22,500. Ferriter J noted that special damages were agreed at €2,772. Accordingly, Ferriter J made a total award of damages in favour of the plaintiff against the HSE in the sum of €60,272.

Damages awarded to plaintiff.

Judgment of Mr Justice Cian Ferriter delivered this 7 ^th day of March 2023

Introduction

1 This is my decision on the plaintiff's claims for damages against the second defendant (“the HSE”) arising out of an accident in her workplace on 6 September 2018. The accident happened while the plaintiff was attempting to lift a patient on a trolley bed, with the help of another staff member. Liability was ultimately admitted by the HSE on the second day of the hearing and the case thereafter proceeded as an assessment of damages only.

2 I would ordinarily have given my decision on an ex tempore basis in respect of what was, ultimately, a routine personal injuries case. However, a legal issue was raised at the close of the evidence to the effect that I should attach less weight to the evidence of the consultant orthopaedic surgeon who was called to give evidence on behalf of the plaintiff on the basis that the plaintiff had been referred to that expert directly by her solicitor and not by her GP. In deference to the argument which I heard on that issue, I reserved my decision so that I could set out my views on that issue with the benefit of proper consideration of the authorities opened and arguments made.

3 The plaintiff had also sued a separate defendant (the first defendant) in respect of injuries to her neck sustained as a result of a road traffic accident on 8 July 2018. That claim as against the first defendant was settled after the opening of the case and the hearing thereafter, including the plaintiff's evidence, was confined to her claims in respect of the accident against the HSE. It was not suggested that the neck injuries sustained in the road traffic accident caused or contributed to the lower back problems the subject of the plaintiff's claim against the HSE.

The plaintiff and her evidence

4 The plaintiff is a 27-year-old woman who at the time of the accident in question worked as a full-time healthcare assistant in Limerick Regional Hospital. As a result of the accident, she says that she had to give up her job as a healthcare assistant and also to give up on her dream of becoming a nurse. She switched career paths instead and is now in her final year of a degree course in law and human rights in NUIG. Her hope now is to become a human rights advocate.

5 Following the accident, the plaintiff was off work with a back injury for a number of months. She made a decision in late 2018 or early 2019 that she couldn't go on with healthcare or nursing work given its physically demanding nature. She put down law and human rights in NUIG in her CAO application which she believes she put together in late 2018, a few months after the accident. She finished up her job as a healthcare assistant with the HSE in August 2019, commencing her law and human rights degree course in Galway that September.

6 The plaintiff has been working part-time in a wine bar to earn money as she is going through college. This does not involve any heavy lifting although it does involve her being on her feet and delivering drinks and plates of food.

7 The plaintiff has had lower back pain on and off for the past four and a half years since the accident. In the earlier part of this period, she experienced stiffness and soreness in her lower back radiating down to her buttocks and into her legs. Those symptoms abated with time however she continues to experience lower back pain. She says that while she is much improved some four and a half years on from the accident she still has bad days where she needs to manage the back pain which she does using heat packs, over the counter anti-inflammatory and painkiller medication, and special wraps.

8 The plaintiff received physiotherapy from September 2018 to March 2019 which gave her some relief from her symptoms. The plaintiff said she had to give up physio as she could not afford it, needing to save money to put herself through college as she did not have the benefit of a grant for college fees. She said that she would like to go back to physio if possible. She has focused instead on a programme of home exercises to help with her back pain.

9 The plaintiff gave evidence that she had a minor back problem between March and May 2016 when she experienced a twinge in her back when picking up something from the floor but that that settled after a few months. None of the medical witnesses regarded this previous back episode as material to the present claim.

10 The plaintiff fell down a number of steps in work on 23 September 2022 and went to the A&E. She experienced some muscle damage to the centre back, different from the place in her back to where she suffered the HSE workplace injury and that pain sorted itself out. On the basis of the evidence heard, I don't believe that this previous back episode is material to the present claim.

11 The plaintiff's GP's medical notes were produced in evidence and the court heard from her GP, Dr Peter Flynn. While his notes recorded him as advising the plaintiff to get physio and certifying her for sick leave following her attendance at his practice after her workplace accident, his notes did not record any ongoing complaint of back pain by the plaintiff in her visits to him in the two and a half years following the accident. The plaintiff herself said that she was managing the pain and did not feel the need to bring it to her GP's attention. (Dr Flynn in his evidence accepted the bona fides of that position.) This suggests that the plaintiff's pain was objectively on the lower end of the scale and the plaintiff was managing the pain reasonably successfully with physiotherapy, occasional over the counter anti-inflammatories and painkillers, and her home exercise programme. The pain was certainly not at level to cause her to seek ongoing help from her GP or to ask her GP to refer her to a consultant.

The medical evidence

12 The plaintiff's...