Rossiter v Dun Laoghaire Rathdown County Council

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: FENNELLY J.
• Judgment Date: 31 October 2001
• Neutral Citation: [2001] IESC 85
• Docket Number: [S.C. No. 15 of 2001]
• Date: 31 October 2001

ROSSITER v. DUN LAOGHAIRE-RATHDOWN CO COUNCIL

PAUL ROSSITER (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND TRACEY ROSSITER

-v-

DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL

[2001] IESC 85

Murphy J.

Geoghegan J.

Fennelly J.

15/01

THE SUPREME COURT

Synopsis:

DAMAGES

Assessment

Appeal against assessment - Personal injuries - Loss of eye - Damage to employment prospects - Whether damages awarded should be increased - Whether necessary to assess damages under separate headings (15/2001 - Supreme Court - 31/10/01) - [2001] 3 IR 578

Rossiter (minor) v Dun Laoghaire Rathdown County Council

The plaintiff had lost the sight of an eye when struck by a piece of wire from a lawnmower being operated by the defendant. Mr. Justice Johnson in the High Court awarded the plaintiff £120,000. The plaintiff appealed against the award on the basis that it was too low. Mr. Justice Fennelly, delivering judgment in the Supreme Court, the other judges agreeing, held that the Supreme Court should only interfere in an award of damages when it considered that there was an error so serious which amounted to an error of law. Considering the award as a whole the sum of £120,000 did not bear a reasonable proportion to the compensation to which the plaintiff was entitled. In the circumstances the award would be increased to a sum of £150,000.

Citations:

REDDY V BATES 1983 IR 141

MCGRATH V BOURNE 1876 IR 10 CL 160

FOLEY V THERMOCEMENT LTD 1954 90 ILRM 92

DUNNE V HO0NEYWELL CONTROL SYSTEMS LTD UNREP SUPREME 1.7.1993 1993/7/1960

O'LEARY V O'CONNELL 1968 IR 149

1 31st day of October, 2001 byFENNELLY J.

FENNELLY J.

2 The infant plaintiff, Paul Rossiter, has, for practical purposes, lost the sight of his right eye. He appeals against the award of £120,000 made in his favour by Johnson J in the High Court, stating that it is inadequate.

3 The Plaintiff was born on 2 ^nd December 1987 and lives with his family in Bray. At the time of the accident the family lived in Dun Laoghaire. On 23 ^rd March 1997, the Plaintiff had been playing football after school and was passing at or near Fitzgerald Park, Dun Laoghaire, when a piece of wire was propelled from a lawnmower which was being operated by the second named defendant/respondent on behalf of the first named defendant/respondent. It struck him in the eye. The Plaintiff sued the defendants. Johnson J found them liable. There is no appeal on liability. The damages were assessed as follows:

(i) Loss of job opportunity	£30,000
(ii) General damages	£90,000
Total	£120,000

4 The Plaintiff naturally suffered extremely severe pain. He fell to the ground. He removed the piece of wire from his eye. He was admitted to the Eye and Ear Hospital, where he underwent several operations. On admission, an exploratory operation was performed. He had suffered a perforating injury to the eye with much bleeding. As the haemorrhage cleared, he developed a right retinal detachment. On 18 ^thApril, he had very major surgery: a right pars plana vitrectomy with drainage of the choroidal haemorrhage. An attempt was made to reattach the retina. However, macular scar tissue at the centre of the reattached retina resulted in almost total loss of vision in the right eye. At most, he has been left with some peripheral vision.. He has also developed a cataract. His left eye was unaffected

5 The Plaintiff was in hospital until late May. He was able to return to school for only a few weeks at the end of the school year. Due to the need to wear a protective eye patch, he suffered some taunting and bullying at school, while still in Dun Laoghaire. He was then in 4 ^th class. He missed the entire of 5 ^th class, apparently due to the school's concerns about the plaintiff's safety and worries about insurance. He seems to have caught up since the family moved to Bray.

6 The trial court had the benefit of a very full and helpful report, which was admitted in evidence, from Ms Mary J. Feely, Vocational Rehabilitation Consultant. She reported that the Plaintiff is the eldest of a family of eight children. His father is a kitchen porter in a pub. His mother is a homemaker. At the time of her report (May 2000), he was attending St Peter's National School in Bray. He had progressed to the Cabinteely Community College by the time of the trial in the High Court. His school reports did not, in her view, indicate a high level of academic attainment. He had, however, good general ability. She evaluated him, on the basis of tests, as being of at least average general intelligence. So far as his capacity for physical work is concerned, he has reasonable average dexterity which is quite adequate for most general manual tasks. She reported on the effects of his visual disability: he had impaired judgement of depth and distance. He is liable to run into people when playing games. Sometimes he crashes into objects, doors etc., on his right side.

7 Ms Feely's report and evidence are particularly relevant to the employment effects of the injury. She said:

"Monocularity is a much more significant factor for some people more than others. Those with capacity to develop a career based on intellectual ability and high academic achievement will have a wide range of choices in the first instance, and the disability would simply reduce that range. For a boy who may be dependent to a considerable extent on physical capacity, which would lead to limited options in the first instance, the repercussions can be greater. A not inconsiderable amount of jobs within that category would be either beyond his capacity, or many work environments could pose some potential risks to himself, to others, or to his residual vision."

8 She considered that, within the social and educational context in which he would be likely to seek employment, apart from physical and visual demands, he would suffer a reduction in options both in terms of the employment of which he would be capable, but also the locations at which he could safely work. In particular, she would rule out working at an unprotected height, which would exclude many construction-related jobs. He could not operate forklifts or even work in areas where there is moving machinery. Ms Feely acknowledged the impossibility of predicting what the plaintiff might do in life. This would be very dependant on the outcome of his secondary education. Here it should be noted that his former teacher gave evidence that he would not be likely to get more than an ordinary level leaving certificate. In essence Ms Feely thought he would be at risk of suffering some general disadvantage as a result of his disability.

9 Johnson J explained his assessment of the damages as follows:

"The Plaintiff has suffered the loss of an eye. In addition he suffered disruption of his schooling; he suffered, I have no hesitation at all, a great deal of taunting and bullying because of it, but he is an impressive young man; I have little or no doubt that he is going to make his way in the world. He is working well at the present time as far as I can make out but in addition to that he is doing an evening job every day of the week for half an hour, and thereby earning additional money; this is indeed, to be commended. ....... However Paul has been left without a right eye and this is a very great impediment to go through life with. It may or may not interfere with his income but undoubtedly will interfere with his job opportunities in the future. It will also interfere with his enjoyment of life and a great number of sports and other activities, which he might or might not have become involved with, would have to be, at least handled with a great deal of care but because he now has only one eye left and that is of course vulnerable ..... as to value of the eye at the moment, I am going to make a stab at it because I am not quite certain what the present rate is but I am going to put a figure on a boy of fourteen losing an eye which is going to be with him for the rest of his life and he cannot do anything about it, I am going to put an all in figure of £90,000 on that. For the loss of job opportunity I will add another £30,000 making in all a figure of £120,000. I will make an Order for that amount Decree for £120,000."

10 The Plaintiff appeals against both headings of the award. It should be noted that the evidence of an actuary was given over the formal objection of the defendants as to the capital value of £1 per week from the ages respectively of 18 and 22 . No other figures were given in evidence to enable a proper actuarial assessment to be made of the likely loss of earnings, if any, of the Plaintiff over his lifetime. Nor, given the age of the Plaintiff and the views of Ms Feely could any such figures be conceivably advanced. Hence, the sum of £30,000 represents the considered assessment by the learned trial judge of a sum for possible loss to the...