Murphy v Malone Engineering Services Ltd
|Mr. Justice Bernard J. Barton
|14 June 2018
| IEHC 358
|[2017 No. 2369 P.]
|14 June 2018
 IEHC 358
THE HIGH COURT
[2017 No. 2369 P.]
Damages – Negligence – Causation – Plaintiff seeking damages for personal injuries and loss – Whether the physical injuries were attributable to the road traffic accident
Facts: The plaintiff, Mr Murphy, brought proceedings before the High Court in negligence and breach of statutory duty for damages for personal injuries and loss arising as a result of a road traffic accident which occurred at approximately 3.15 am on the 29th March, 2014, at the junction of James Larkin Road and Howth Road, Dublin. Liability for the accident was admitted by the defendants, Malone Engineering Services Ltd and Mr Cleary. Given that there was no claim for loss of earnings and other special damages were agreed in the sum of € 2067, the case proceeded as one for an assessment of general damages only. The controversy between the parties centred on the extent of the physical injuries and in particular the cause of a significant and serious condition present in the plaintiff’s elbows which was attributed to the accident. The essence of the defendants’ case was that the plaintiff had advanced pre accident generalised osteoarthritis particularly affecting his hips, neck, back and elbows, a disease which was progressive and responsible for any ongoing symptoms. Accepting that there may have been some symptomatic aggravation of that condition as a result of the accident, the defendants submitted that the contributory affect would most likely have abated within about twenty four months or so of that event and would have long since subsided; it followed that any ongoing symptomology was not causally related to the accident. The plaintiff’s case�was that the accident had rendered symptomatic what was otherwise a quiescent underlying condition; significantly, the osteoarthritis in other uninjured areas of the body remained quiescent.
Held by Barton�J that, with regard to the issue of causation, the plaintiff had discharged the onus of proof to establish his case on the balance of probability; accordingly, the physical injuries to the plaintiff’s neck, lower back and elbows were caused by the accident.
Barton�J held that a fair and reasonable sum to compensate the plaintiff for pain and suffering to date commensurate with and proportionate to the injuries sustained was €50,000. Barton�J held that a fair and reasonable sum for pain and suffering into the future was €30,000, making a total sum of €80,000 to which the special damages agreed in the sum of €2,067 would be added making in aggregate a total award of €82,067.
These proceedings are brought by the Plaintiff in negligence and breach of statutory duty for damages for personal injuries and loss arising as a result of a road traffic accident which occurred at approximately 3.15 am on the 29th March, 2014. The accident occurred at the junction of James Larkin Road and Howth Road, Dublin. Two vehicles were involved, an SUV driven by the Plaintiff and a van driven by the second Defendant. The accident circumstances are not in issue. The Second Defendant created an emergency by executing a right hand turn across the Plaintiff's path of travel. Realizing that an accident was momentarily inevitable the Plaintiff stood on the brake pedal and braced himself by gripping the steering wheel with both hands.
The forces involved in the collision were considerable and caused the airbag in the First Defendant's van to deploy. The Plaintiff had had to exit his SUV via the passenger door. The damage to the vehicles was so extensive that neither was drivable and both had to be written off by the insurers concerned. Liability for the accident was admitted by the Defendants. Given that there was no claim for loss of earnings and other special damages were agreed in the sum of € 2067, the case proceeded as one for an assessment of general damages only.
The Plaintiff is a taxi driver by occupation who was born on the 26th February, 1956 and resides at 15 Cranfield Place, Sandymount, Dublin 4. He and his wife have five children and five grandchildren. He has an impressive work ethic. Before becoming a taxi driver in 2008 he had worked as a self-employed haulage contractor for approximately 30 years until his business became a casualty of the economic recession which followed the crash in financial markets. Physically very fit, the Plaintiff was a keen sportsman who jogged twice week, played golf and enjoyed walking. He had played competitive football into his mid-forties before taking up golf, a sport in which he became relatively proficient, attaining a GUI handicap of 13. He also enjoyed DIY and could turn his hand to almost anything.
Apart from one hospital admission in 2012 for investigation of a neurological complaint which transpired to be negative for pathological cause and did not reoccur, the Plaintiff had no relevant pre accident medical history of injury or illness. Post-accident he was unfortunate enough to be given a diagnosis of prostate cancer for which he is currently receiving treatment.
Although on formal proof of his injuries and loss, during the hearing it was fairly accepted by the Defendants that as a result of the accident the Plaintiff had suffered physical and psychological injuries. As to the latter, he was assessed by Dr. Denis Murphy, Consultant Psychiatrist. His reports, dated the 2nd November 2016 and 14th March 2018 respectively, were admitted in evidence during the trial, the content of which was uncontested. Accordingly, I accept the findings and opinion of Dr. Murphy and find that the Plaintiff suffered a Post Traumatic Stress Disorder as a result of the accident. This condition manifested with symptoms of depression, anxiety, tension, insomnia and nightmares, nervousness, low mood and irritability together with flashbacks to the accident.
The controversy between the parties centred on the extent of the physical injuries and in particular the cause of a significant and serious condition present in the Plaintiff's elbows which is attributed to the accident. The essence of the Defendants case was made abundantly clear from the cross examination of the Plaintiff and his witnesses and from the evidence of Mr. McQuillan, namely, that the Plaintiff has advanced pre accident generalised osteoarthritis particularly affecting his hips, neck, back and elbows, a disease which is progressive and responsible for any ongoing symptoms. Accepting that there may have been some symptomatic aggravation of that condition as a result of the accident, the contributory affect would most likely have abated within about twenty four months or so of that event and by now would have long since subsided. It followed that any ongoing symptomology was not causally related to the accident.
The Plaintiff's case is altogether different. While it was accepted that the generalised osteoarthritis had developed prior the accident the existence of the disease was entirely unknown to the Plaintiff. No complaint of injury to either of his hips was made by the Plaintiff; significantly, the osteoarthritis, which Mr McQuillan says is advanced in both, the right more than the left, remains asymptomatic. On the other hand, the injured areas, the neck, back and elbows, are symptomatic to a greater or lesser extent, the back and in particular the elbows being the most significant.
In so far as the source of the ongoing symptoms is attributable to osteoarthritis rather than the soft tissue injuries, the accident was the most likely trigger, a consequence which may otherwise have never occurred and certainly not in the short or medium term. The accident had rendered symptomatic what was otherwise a quiescent underlying condition; significantly, the osteoarthritis in other uninjured areas of the body remains quiescent.
With regard to the matters in issue between the parties, the law casts on the Plaintiff the onus to establish his case; the burden he bears is to so on the balance of probabilities, accordingly, it was necessary to call medical evidence in respect of the physical injuries. Dr. Corboy, the Plaintiff's GP, and Mr. Eamonn P. Kelly, Consultant Orthopaedic and Hand Surgeon, both of whom examined and treated the Plaintiff, were called on his behalf. Mr. Robert F. McQuillan, Accident and Emergency Consultant, who examined and reported for the Defendants, was called on their behalf. The reports prepared by all of these witnesses were admitted as an aide memoire for the Court. In the course of the trial other medical reports (dated the 19th May 2016 and 25th September 2017) prepared by Mr. Seamus Morris, Consultant Orthopaedic Surgeon, to whom the Plaintiff had also been referred, were also admitted in evidence by the Defendants.
Given the matters in controversy and the Defendants challenge, based in part on the clinical complaints recorded by his physicians, particularly in the two years following the accident, I consider it pertinent to observe at the outset that I found the Plaintiff to be a truthful witness upon whose evidence the Court can rely. I had an opportunity to observe his demeanour as he gave his evidence and am quite satisfied that the emotion which became apparent from time to time as he did so was entirely genuine and reflected the ongoing physical and psychological impact which the accident has had on him. I am fortified in my impression by what I thought was a very fair acknowledgement on the part of Mr. McQuillan when giving his testimony that he considered the Plaintiff to be an entirely genuine and honest individual.
Not surprisingly, in the immediate...
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