Ryan v Queally Pig Slaughtering Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O'Connor |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] IEHC 732 |
| Court | High Court |
| Docket Number | [2020 47 P] |
[2022] IEHC 732
[2020 47 P]
THE HIGH COURT
Summary judgment – General damages – Loss of earnings – Plaintiff seeking summary judgment – Whether the plaintiff took reasonable steps to reduce his loss
Facts: The plaintiff, Mr Ryan, sustained an injury at his place of work for the defendant, Queally Pig Slaughtering Ltd, in April 2017. The High Court heard evidence about “facet joint dysfunction” against the background of a contention on behalf of the defendant that the plaintiff had a bad back, which was going to cause him many of his complaints. At trial, the defendant initially kept liability an issue, but later confined its defence to the cause and extent of the plaintiff’s injuries and losses. An issue about minimising losses also arose for consideration.
Held by O'Connor J that the plaintiff would not obtain long term relief from any care which may be offered by Dr Patterson, Dr Murphy, and his team or from any surgical procedure. Notwithstanding the considered cross-examination of Dr Patterson based on the reports of Mr O’Riordan and Dr O’Dwyer, and having heard all of the evidence from the experts, O’Connor J was satisfied that the plaintiff could not have done anything more than he had done to alleviate his pain. O’Connor J held that the suggestion that the plaintiff ought to have persisted with a chiropractor, physiotherapist or recommended exercises did not stand up to scrutiny. O’Connor J was satisfied from the opinions offered and the concessions made by Mr O’Riordan in cross-examination that the plaintiff’s inability to work was indeed attributable to the facet joint dysfunction. O’Connor J held that the effect of the defendant’s position at its height was that the plaintiff was prone to developing some back pain in later life. O’Connor J held that there was no merit in the defendant’s position that the injuries and inability to work which the plaintiff had to endure were solely or substantially attributable to his “bad back”. O’Connor J accepted the evidence of Professor McMahon, which meant that the facet joint dysfunction and the contribution of some 20% to the plaintiff’s arthritis from the work required, combined to have an overwhelming effect on the plaintiff’s lumbar spine. Having regard to the vocational assessment of the plaintiff, O’Connor J accepted that the plaintiff was not fit for any job which required bending, stooping, carrying or lifting weights of any significance. O’Connor J held that it was unrealistic to expect an employer to risk employing the plaintiff for any type of physical work; the plaintiff could not persist at tasks. O’Connor J held that the plaintiff would be plagued for the rest of his life with back spasm after trying to work beyond what he had achieved to date. O’Connor J held that the recent trips from the plaintiff’s home to Waterford city and then to Dublin showed that he could not undertake regular travel for work. O’Connor J held that the defendant did not establish that the plaintiff had or currently has an ability to work as an employee. O’Connor J held that the defendant had not established that the plaintiff failed to take reasonable steps to reduce his loss.
O'Connor J held that the order of the Court would be to grant judgment in favour of the plaintiff together with his costs (to be detailed in the perfected order) against the defendant for the following sums while noting the obligation of the defendant as “compensator” to pay out of the total, the sum of €75,086.45 to the Minister according to the “Statement of Recoverable Benefits” dated 25 November 2022: past loss of earnings - €130,000; future loss of earnings - €120,000; general damages - €110,000; agreed special damages - €5,536.
Summary judgment granted.
Halley and Sons Solicitors for the plaintiff.
Benjamin J. Higgins Solicitors for the defendant.
Michael Counihan SC, Elaine Morgan SC and David Bulbulia BL for the plaintiff.
Jeremy Maher SC and Kevin Byrne BL for the defendant.
Judgment delivered on 21 December 2022 by Mr. Justice Tony O'Connor
. The principal focus of this judgment is directed to the effects of an injury sustained by the plaintiff at his place of work for the defendant in April 2017. The Court heard evidence about “facet joint dysfunction” against the background of a contention on behalf of the defendant that the plaintiff had a bad back, which was going to cause him many of his current complaints. At trial, the defendant initially kept liability an issue, but later confined its defence to the cause and extent of the plaintiff's injuries and losses. An issue about minimising losses also arises for consideration.
. The 60 – year – old plaintiff lived at and worked near his current home in Carrick on Suir for his entire life. He always had a good work ethic. He only experienced short periods of unemployment since leaving after his first year in secondary school. He worked on farms, in a tannery and at another bacon factory before joining the defendant in 2003. I accept that all the plaintiff “…ever wanted to do was to work and earn a living”. It was his raison d'etre.
. In April 2017, the plaintiff started work at 6:30a.m. and moved to the “VAC PAC” area at around 7.30a.m. There he interchanged on a regular basis with a fellow employee for the repetitive task of twisting and lifting bags of pork which could weigh up to 25 kilograms and more. Overtime work, which was expected by both parties, meant that he worked until 5 p.m. Monday to Friday. The work was hard with time limited breaks. The defence, up to the end of the direct evidence of the plaintiff, maintained that the system was safe.
. Counsel for the defendant admitted liability before Leonard O'Sullivan, a professor in industrial ergonomics at the University of Limerick, started his evidence on day two. Suffice to say that no changes were made, despite concerns expressed regarding the system of work and the ergonomic exposure in the manual handling required of the plaintiff up to April 2017.
. On 13 April 2017, the plaintiff, after the 15 – minute break at 10a.m. returned to the VAC PAC section and experienced an awful pain in his central mid lower back area when swinging over one of the bags. The plaintiff did not want to make a fuss, as appears to be typical of his career and character. He thought that he would be “grand”. On the following day, which was a Good Friday, and after having been up all night with back pain, he attended a doctor who referred him to accident and emergency in Clonmel Hospital.
. The evidence of the plaintiff and his general practitioner (Dr. John Flanagan) for some 20 years, satisfied me that the plaintiff wanted to return to work despite his significant pain. Physiotherapy did not afford the plaintiff any relief and there was a suboptimal response to medication and injections administered. The plaintiff was strongly motivated to maintain employment which was connected to his role in his family unit and in his community. He was a good manual worker, and he did what he knew was best for himself, his family and his employer. To this day despite the agony which waxes and wanes he walks his two dogs for a few kilometres most days but avoids hills. He gardens raised beds for which his wife carries the compost. He has had to forego his lifelong interest in sea fishing and looks longingly at anglers on the river. The plaintiff ceased his engagement with local clubs. He gave up on attending matches because he must move around due to his back pain and he got tired of people asking him about his wellbeing. He is a private man. Demanding domestic duties are no longer undertaken. He drives short distances; the drive to Waterford and then to Dublin for the trial caused him great difficulties, as was evident from his physical presentation and posture in the courtroom. In short, the plaintiff's previously fulfilled life has deteriorated drastically since the incident in April 2017.
. When cross – examined, retired consultant orthopaedic surgeon, Mr. Michael O'Riordan — who had reported to the defendant's solicitors that there was “… some inconsistency” in the plaintiff's “physical signs” conceded that there was no basis for anyone to interpret this comment as meaning that the plaintiff was exaggerating the effects of his pain. The extent to which Mr. O'Riordan was prepared to go without having mentioned it in any report prior to the trial, was that the plaintiff could handle two – kilogram weights as long as he did not have to bend to pick them up or move them from place to place.
. Dr. Patterson, consultant in anaesthesia and a director of pain medicine in the Whitfield Clinic Cork, gave evidence by video link. He described how facet joints twist and move, by reference to a model of the back. Facet joints allow the lumbar spine to move as the back twists. He succinctly explained that:-
“Actual back pain can come from facet joint issues, or it can come from disc issues”
He deduced from having achieved temporary relief of about 60% for the plaintiff by injecting the facet joints, that the plaintiff had “facet dysfunction”. Unfortunately, the plaintiff will not achieve any long – term benefit from such injections or surgical procedures in the future.
. Dr. Patterson told the Court that too much strain “… builds up tension in the muscles of the back and results in muscle spasm and acute facet syndrome. This is what happens with the facets, it's a kind of waxing and waning thing. Patients will often be okay for a time, then they overdo it, it comes back to plague them, they get back spasm and pain and they are unable to do their day-to-day activities”
. Dr. Patterson further testified how he advised the plaintiff against considering a spinal cord...
To continue reading
Request your trial