Patrick McDonnell v Upton Foods Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 06 December 2022 |
| Neutral Citation | [2022] IEHC 680 |
| Court | High Court |
| Docket Number | [Record No. 2022/551P] |
[2022] IEHC 680
[Record No. 2022/551P]
THE HIGH COURT
Personal injury – Road traffic accident – Liability not in issue – Assessment of damagers under Personal Injury Guidelines
Facts: The plaintiff’s car had been struck by a van driven by the defendant’s employee in 2019 and had suffered injury as a result. The matter now came before the High Court for the assessment of damages under the Personal Injury Guidelines, liability not being contested.
Held by the Court, that the plaintiff had given his evidence fairly and accurately. Having considered the Personal Injury Guidelines and the case law on the matter, the Court would award damages of €89,250. Meehan v. Shawcove Ltd [2022] IECA 208 & Lipinski (A Minor) v. Whelan [2022] IEHC 452 considered.
JUDGMENT of Mr. Justice Barr delivered extempore on 6 th December, 2022.
This action arises out of an RTA which occurred on 30 th November, 2019. The plaintiff had brought his car to a halt with the intention of turning right into a garage premises on the far side of the road. While he was stationary awaiting an opportunity to turn into the garage, his car was struck forcibly from the rear by a van driven by an employee of the defendant. The plaintiff was wearing a seatbelt at the time of the accident. Liability for causation of the accident is not in issue between the parties.
The assessment of general damages in this case falls to be decided under the provisions of the Personal Injury Guidelines and in particular, the principles that are to be applied when valuing multiple injuries.
In this case, it is accepted that the dominant injury suffered by the plaintiff was a tear to the rotator cuff in his right shoulder. Secondary to that, it is accepted that the plaintiff suffered an adjustment disorder and depression as a result of his ongoing symptoms and functional disablement.
In assessing damages in this case, a number of medical reports were admitted in evidence as follows: the reports from Mr. Hanan Mullett dated 27 th April, 2020 and 14 th November, 2022; a report from Dr. Gordon Daly dated 18 th July, 2022; the reports from Mr. J K Nasser dated 2 nd December, 2020 and 27 th August, 2021 and a report from the psychiatrist, Dr. Elizabeth Cryan dated 15 th October, 2022. In addition, the court had the benefit of hearing evidence from Mr. Mullett, who carried out a repair operation to the plaintiff's right shoulder on 23 rd March, 2020.
It is not necessary to set out the content of each of the medical reports in this judgment. The court has had regard to all of the medical reports that were submitted in evidence. In essence, the situation in relation to the injuries that were suffered by the plaintiff can be stated in the following way: the plaintiff is 65 years of age. He is a married man with three grown-up sons. He is employed as an engineer in a small company which manufactures heating elements. The plaintiff stated that the impact between vehicles was severe. His car was shunted partially into the forecourt of the garage. The repairs to the vehicle had cost €6,500.
After the accident the plaintiff experienced severe pain in his right shoulder. The gardaí had been called to the scene of the accident and an ambulance had been called. The plaintiff was removed to our Lady of Lourdes Hospital in Drogheda. X-rays taken at the hospital revealed that he had not fractured any bones in his shoulder. He was discharged from hospital later that day. Some days later, the plaintiff attended with his GP complaining of severe pain and limitation of movement in the right shoulder. Painkillers were prescribed and subsequently the plaintiff's shoulder was immobilised in a sling. The plaintiff was unfit for work for an initial period of one month post — accident.
When the plaintiff's shoulder symptoms did not improve, his GP referred him to Mr. Hanan Mullett, consultant orthopaedic surgeon, at the Sports Injury Clinic, Santry, Dublin. On examination at that time, it was revealed that the plaintiff had a globally restricted range of motion, with very poor function. An MRI scan had revealed a tear to the supraspinatus and infraspinatus tendons in the shoulder.
On 23 rd March, 2020, Mr. Mullett performed a biceps tenotomy and arthroscopic subachromial decompression. At the time of surgery, the tear to the affected structures was revealed as being 5 cm x 4 cm. Mr. Mullett stated that the findings at the time of surgery were that the plaintiff's injury had the appearance of an acute rotator cuff tear, rather than a tear that had been caused by degeneration. The plaintiff made an uneventful post-operative recovery. He was discharged from hospital on the following day. He was unfit for work for a period of three months after the operation.
The plaintiff was reviewed by Mr. JK Nasser on behalf of the personal injuries assessment board, on 2 nd December, 2020; at which time, the plaintiff complained of intermittent pain in the right shoulder, which was related to activity. He was restricted in the amount of overhead activity that he could do, and he had decreased internal rotation of the right shoulder. He was unable to lift anything heavy. He stated that he could not lie on his right side and had disturbed sleep due to pain. Examination revealed fairly significant limitation of movement, particularly in flexion and abduction. The plaintiff very candidly told Mr. Nasser that his symptoms had improved by about 40% since the accident. The doctor was of opinion that recovery was slow and that it would take another 8 to 12 months before an assessment could be made in relation to the healing of the rotator cuff repair.
When reviewed by Mr. Nasser on 17 th August, 2021, the plaintiff stated that his right shoulder had improved further; however, lifting was still a problem and the shoulder caused him pain at work. He stated that overall his right shoulder symptoms had improved by more than 80% since the accident. Examination revealed that there had been improvement in his range of movement to an almost full range of movement in the shoulder joint. Mr. Nasser noted that the plaintiff's right shoulder symptoms had subjectively improved by approximately 80% since the time of the accident. Clinical examination on that date revealed a good functional range of motion of the right shoulder, with some terminal subachromial impingement at 170° of internal rotation and flexion. Future treatment in relation to the right shoulder remained conservative. He advised that the plaintiff should continue with the home exercise program that had been recommended by his physiotherapist.
The plaintiff was reviewed by Mr. Mullett on 27 th October, 2022, at which time he noted that the plaintiff had significantly improved. He continued to complain of discomfort when lying on his side. He was able to manage the demands of his work. He complained of some discomfort and lack of strength when doing overhead activities. Examination revealed healed surgical scars, together with weakness of the infraspinatus and supraspinatus.
Mr. Mullett was of opinion that the plaintiff had sustained a significant rotator cuff tear. Overall, he had improved from his surgery, but had residual symptoms, as was to be expected with the size of the tear. He had administered a steroid injection to the shoulder to alleviate his ongoing symptoms of pain. Mr. Mullett stated that he expected the current symptoms to be permanent. In his evidence to the court, Mr. Mullett stated that he was happy that a reasonably good outcome had been obtained from the surgical repair operation, but that permanent ongoing symptoms would be a feature given the plaintiff's age and his presentation some 2.5 years post operation.
The secondary injury that was suffered by the plaintiff was in the form of psychiatric sequelae. The plaintiff stated that this accident affected him greatly. He...
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Coughlan v CGR Construction Ltd and Another
...of that category. She submits that proportionately this is in accordance with the approach taken by Barr J in the decision of McDonnell [2022] IEHC 680. 15 . In my view, McDonnell v Upton Foods Ltd [2022] IEHC 680 can be distinguished from this case on the basis that the plaintiff in that c......