Nolan v Kerry Foods
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 30 March 2012 |
| Neutral Citation | [2012] IEHC 208 |
| Court | High Court |
| Date | 30 March 2012 |
[2012] IEHC 208
THE HIGH COURT
BETWEEN
AND
CIVIL LIABILITY & COURTS ACT 2004 S26
FARRELL v DUBLIN BUS/BUS ATHA CLIATH UNREP QUIRKE 30.7.2010 2010/19/4716 2010 IEHC 327
CARMELLO v CASEY 2008 3 IR 524 2007/9/1716 2007 IEHC 362
AHERN v BUS EIREANN UNREP FEENEY 16.5.2006 2006/2/311 2006 IEHC 207
CIVIL LIABILITY & COURTS ACT 2004 S14
SOCIAL WELFARE CONSOLIDATION ACT 2005 S286
Tort law - Personal injury - Fraudulent claim - Whether the plaintiff's claim for damages for personal injuries ought to be dismissed pursuant to s. 26 of the Civil Liability and Courts Act, 2004.
Facts The plaintiff alleged that he sustained injuries to his back following a road traffic accident on 10 April 2006 in which he was rear ended by an articulated truck. The plaintiff's evidence regarding when he first became symptomatic following the accident was unclear but he gave evidence that he initially obtained treatment from Mr Monaghan, the Physiotherapist/Osteopath attached to his local Rugby Club. The plaintiff later attended his General Practitioner and ultimately received an MRI scan and physiotherapy. The plaintiff had previously suffered with back problems but maintained that at the time of the accident he was able to train a number of rugby teams and was working as a gardener. In 2007, the plaintiff underwent a decompression microdisectomy to alleviate leg pain and in 2010 he underwent a focal decompression. The plaintiff submitted that he continued to experience back pain and required pain killers. He also submitted that he was unable to participate in sporting activities and was not in a position to continue coaching rugby. It was submitted on behalf of the plaintiff that the court should compensate the plaintiff for the fact that he was no longer able to carry out work involving significant physical activity. The defendant submitted that the plaintiff's claim was a fraud and in particular relied on the plaintiff's delay in seeking medical treatment and the fact that he failed to adequately disclosure his prior history of back pain. The defendant maintained that the plaintiff's back problems could not be ascribed to the road traffic accident, that his claim for loss of earnings was inflated and submitted therefore that the plaintiff's claim should be dismissed pursuant to the provisions of s. 26 of the Civil Liability and Courts Act, 2004.
Held by Irvine J. in awarding the plaintiff damages in the sum of €46,125: That the defendant failed to establish on the balance of probabilities that the plaintiff gave evidence which he knew to be false or misleading or that he swore a false/misleading affidavit of verification. On the balance of probabilities the plaintiff sustained a seriously debilitating soft tissue injury to his back of approximately two to three years duration. The court relied on the plaintiff's demeanour when giving evidence and the fact that Mr Monaghan substantially corroborated his evidence. Furthermore, the plaintiff had a genuine claim for compensation and he did not adduce false or misleading evidence in respect of his claim for general or special damages. However, the plaintiff failed to adduce any specific evidence in support of his claim for loss of earnings. The plaintiff was entitled to an award of €45,000 in respect of general damages which included a modest sum to cover any minor loss of income referable to the collision. The plaintiff was also awarded special damages of an agreed sum of €1,125.
1. The plaintiff in these proceedings was born on 28 th November, 1967. He is a separated father of two children who are now aged 12 and 6 years of age. The plaintiff resides in Sandymount in Dublin and has been caring for his children on a full time basis since his separation in 2007.
2. The within proceedings arise out of a road traffic accident which took place on 10 th April, 2006, when the plaintiff's Land Rover was rear ended on the Naas dual carriage way when in a stationary position. The plaintiff contends that as a result of that impact, he sustained injuries to his back which have affected him in all areas of his life. In particular, he maintains that his injuries have interfered with his ability to work and participate in sporting activity in respect of which he had enjoyed substantial success.
3. After he left school, the plaintiff spent a lot of time pursuing his sporting interests. He played senior county football for twelve years and senior rugby for ten years. It appears to me that he sought out employment compatible with those talents and in this regard worked both in the United States and Australia. He worked in a number of different jobs including life insurance, mortgage broking and auctioneering. In 2003, he started to try to earn a living as a gardener and through word of mouth had reached a point in 2005 when he maintains he had a turnover of approximately €19,000 per annum. He hoped that in good health that he could have ended up earning a reasonable living from this type of work.
4. It is common case that the plaintiff developed what can simply be described as a bad back at a very young age. Records show that he was referred to Mr. John McElwaine, Consultant Orthopaedic Surgeon, in 1995 for recurring back pain as a result of a rugby injury. Further, in January 2004, he underwent a CT scan, the indication for which investigation was chronic back pain and left side sciatica. The scan showed the presence of spinal stenosis and significant degeneration at the levels of L5/S1 and L3/4. Dr. Stafford, Consultant Radiologist, described this scan as demonstrating a severely compromised back. However, as of early 2006, the plaintiff maintains that his back was not giving him much trouble and that he was able to train a number of rugby teams during the week and a couple more at weekends.
5. The plaintiff contends that in the aftermath of the collision his back became extremely symptomatic. Initially, he stated that these symptoms commenced within a period of two weeks. Under cross examination, he later capitulated and said that the pain set in within days. He maintains that he got immediate treatment from a Mr. Michael Monaghan, the Physiotherapist/Osteopath attached to Bective Rugby Club and that he had this twice a week in the period directly following the collision. When that treatment did not sort out his problems he went to Dr. O'Flanagan, his general practitioner about two months later. During that period of time, he continued to coach a number of rugby teams but his condition got progressively worse. Because his back pain and symptoms became increasingly acute, Dr. O'Flanagan arranged for him to have an MRI scan and this took place on 18 th January, 2007. He was later referred by Dr. O'Flanagan to the Back Triage Clinic in the Blackrock Clinic. There, he received physiotherapy and was given a home exercise programme before being referred by the clinic to Mr. Bolger, Consultant Neurosurgeon.
6. Mr. Bolger saw the plaintiff on 14 th March, 2007. In his first medical report, he referred to the plaintiff having given him a history of five years of pain radiating into his legs. Mr. Bolger carried out a decompression microdiscectomy on 31 st May, 2007, to relieve the nerve pain in the back of the plaintiff's left leg. The surgery improved the plaintiff's leg pain but did little to deal with his ongoing back pain. Accordingly, he was referred by Mr. Bolger to Dr. Pollard, Consultant Anaesthetist, in the hope that she might be in a position to provide him with pain relieving treatment for his back pain. She carried out facet joint injections but these gave the plaintiff little relief. In July 2009, the plaintiff developed a new type of pain down the front of the left leg and this caused him great difficulty with a range of everyday activity. Accordingly, in July 2010, Mr. Bolger performed a focal decompression on the L4 left sided nerve root.
7. It is the plaintiff's contention that the road traffic accident, the subject matter of these proceedings, caused his back to become significantly symptomatic. The effect of the impact, according to Mr. Bolger's evidence, was to bring forward the surgical intervention just referred to by about five years.
8. The plaintiff continues to have ongoing back pain. He walks with a limp most days and takes Zydol and Nurofen on a regular basis to control his back symptoms. The plaintiff accepts that he had both good days and bad days. However, he is unable to participate in sporting activities and in particular he is not in a position to coach any rugby teams. He has difficult playing golf, a sport which he formerly enjoyed and he is unable to carry out any physically strenuous activities.
9. Mr. McDonnell, S.C., on the plaintiff's behalf made it clear on his opening of the case that his client was not pursuing a loss of earnings claim calculated by reference to any actuarial report but submitted that the court should, in its calculation of general damages, compensate the plaintiff for the fact that he is no longer in a position to engage in any type of work which involves significant physical activity. He urged the court to take into account the fact that the plaintiff's potential earning capacity as a landscape gardener had prematurely ended by reason of the road traffic accident, the subject matter of these proceedings. In this regard, the court was also advised that the plaintiff had been in receipt of social welfare from the time he gained sole custody of his children in 2007 and that as of the date of the hearing he was in receipt of a disability allowance of approximately €250 per week in addition to a financial supplement which...
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Nolan v Kerry Foods
...[2012] IEHC 208 - Irvine Defendant's application to have Plaintiff's claim dismissed on foot of Section 26 of the Civil Liability and Courts Act 2004 was refused. Insufficient evidence to support the Defendant's contention that the Plaintiff had deliberately adduced false evidence. Facts Th......