Walsh v Tesco Ireland Ltd

CourtHigh Court
JudgeMr. Justice Barr
Judgment Date06 May 2016
Neutral Citation[2016] IEHC 232
Docket Number[2013 No. 5917 P.]
Date06 May 2016

[2016] IEHC 232


Barr J.

[2013 No. 5917 P.]


Tort – Damages & Restitution – Slip and fall – Quantum of damages – Impact on life – Level of pain and discomfort

Facts: The plaintiff sought an order for damages against the defendant owing to injuries sustained by the plaintiff when she slipped on grapes on the floor of defendant's supermarket. The plaintiff claimed that since she had suffered serious injuries to her low back and developed cauda equina syndrome causing her to seek constant urinary care, she had been rendered disabled in all aspects of life. The plaintiff also sought damages for future medical care along with costs of aids and appliances.

Mr. Justice Barr awarded general and special damages to the plaintiff which include the damages for loss of earnings, costs of future urology care, aids and appliances and other expenses. The Court held that an assessment of award for injuries should be made by determining the nature and extent of physical and psychological trauma suffered by the plaintiff and the likelihood of the plaintiff's recovery from those injuries. While calculating the damages, the Court took into consideration the level of pain and discomfort caused to the plaintiff, psychological trauma suffered, dependency on antidepressants, deteriorating condition and minimal chances of improvement. The Court following the decision of the Court of Appeal in Russell v Health Service Executive [2015] IECA 236, held that a real rate of return of 1% should be allowed for loss of earnings or future care costs and 1.5% for other costs. The Court calculated the loss of future earnings of the plaintiff based upon her intended return to work at a managerial position by weighing the negative aspects against the net financial gain.

JUDGMENT of Mr. Justice Barr delivered on the 6 th day of May, 2016

The plaintiff in this case is a married lady of forty-eight years of age, who was born on 3 rd March, 1968. She has two daughters, aged ten and eight. She and her husband own and run a stud farm in Co. Clare. Their main activity is breeding and training horses for equestrian events. They also have a stallion, which cover mares owned by the plaintiff, as well as mares that are brought in for that purpose. They also have a number of cattle on the farm.


On 28 th August, 2012, the plaintiff slipped on grapes on the floor of the defendant's supermarket premises at Kilrush, Co. Clare. As a result of the fall, she suffered an injury to her lower back. Liability for the accident has been conceded by the defendant.


In essence, it is the plaintiff's case that, as a result of the fall, she has suffered a serious back injury, which has required extensive surgery and other treatment, culminating in the insertion of a spinal cord stimulator in her back in 2015. She also suffered a significant injury to her bladder, which has necessitated her to self-catheterise three times per day. She also suffered psychiatric sequelae. The plaintiff maintains that these injuries have left her severely disabled in all aspects of her life. It is the plaintiff's case that the injuries have rendered her totally unfit for any gainful employment, both to date and into the future.


In this regard, the plaintiff maintains that her loss of earnings into the future is very significant, due to the fact that, but for the accident, she would have returned to full-time employment when her oldest child was in secondary school, in approximately 2018. The plaintiff maintains that, at that time, she would have secured a well-paid job as a supply chain manager, which was a job that she had worked at in the US and in Ireland before the birth of her children.


The defendant accepts that the plaintiff has suffered a significant injury, but they do not accept that, in the absence of the accident, there was any reality to her rejoining the workforce at an executive level in 2018, due to her commitments both in the home and on the farm and having regard to the fact that she would have been out of that kind of work for upwards of fourteen years and she would be fifty years of age at that time.


Another area of contention is the claim for future medical and care costs and the costs of aids and appliances. The defendant does not accept the range of aids and appliances put forward on behalf of the plaintiff. They also have a different view as to the level of home help that will be required by the plaintiff in the future.


A further area of disagreement is in relation to the real rate of return that should be used when calculating the appropriate multiplier to be used in respect of the various heads of future loss. It is sufficient at this point to note that the plaintiff has contended that, on the basis of the Court of Appeal decision in Russell (A Minor) v. HSE [2015] IECA 236, a real rate of return of 1% should be used for loss of earnings and future care costs and 1.5% for all other costs. The defendant maintains that a real rate of return of 3% should be used across the board.


Given the level of disagreement between the parties, it will be necessary to look at both the claim for general damages and special damages in some detail.


Before dealing with the issue of general damages, it is useful to give some background in relation to the plaintiff's life prior to the accident. The plaintiff was born on 3 rd March, 1968, in the United States. She returned to Ireland with her family at two years of age. They had a farm in Co. Clare and her father dealt in horses. She went to St. Joseph's secondary school and then did a diploma in business in Tralee RTC. When she graduated, she went to the USA. She worked initially in a large advertising agency and then switched to the purchasing department of Unilever in New York for four and a half years.


She was headhunted from Unilever and went to work for Phillip Morris in the purchasing department. While there, she was selected for a Management Development Programme within the company. She was one of eighteen people selected. The plaintiff was the purchasing manager for Marlboro cigarettes and had a budget of $500m. This involved sourcing materials from across the globe and from China in particular. They had over two hundred million consumers. There was a team of sixteen people working under her. She had authority to negotiate contracts up to $20m. For contracts larger than that, she needed authority from higher up in the company. She worked with Phillip Morris for seven and a half years.


The plaintiff returned to Ireland in 2001. She met her husband when he came to purchase a horse from her father. They got married in 2003. At that time, she was working with Musgrave's wholesalers, which handled the accounts for the Supervalu chain of supermarkets. The plaintiff was in the trading department, where she was involved in a restructure of the supply chain. She reported to the Director of Purchasing. She had been headhunted to work for Musgraves and she started in July 2001. Her function was to improve communications between the various offices and the warehouses. She had eight/nine buyers reporting to her and fifteen managers in charge of hundreds of employees. They greatly changed the logistics within the company. They centralised and moved production to Kilcock in Co. Kildare.


In her college days, and before moving to the US, the plaintiff had been heavily involved in sports. She played Gaelic football for Clare and Munster at senior level. She was on the team that won the Railway Cup three years in a row. She also played football in New York. On her return to Ireland in 2001, she played football with her local club and also trained the under-10 boys' team. She also played tag rugby in Cork.


The plaintiff and her husband came from farming backgrounds and they both had an interest in horses. They wished to pursue this interest. They purchased a stud farm, known as Shannondale Stud. They live on the farm. The plaintiff left Musgraves in 2004, and had her first daughter the following year, in 2005.


The plaintiff explained that she and her husband enjoyed working hard to build up the reputation of the stud. To this end, her husband had purchased a stallion called ‘Sarco’ in Belgium. They brought this horse back to their farm and hoped to build its reputation over the following years. In the early years, they had thirteen horses on the British database and now there are seventy-six horses. They can all be traced back to Shannondale Stud. During this time, they built the stables and did a lot of physical work about the farm. The plaintiff also looked after the paperwork connected with the farm, as well as the online marketing and branding of the stud business.


The plaintiff had her second daughter in 2007. In November 2011, she took up part-time work as a receptionist/secretary in a GP practice run by Dr. Regan in Kilkee. The plaintiff worked three days one week and two days the next week. She received a weekly wage of €200.


In the course of her evidence, the plaintiff gave the following summary of her normal day's work on the farm, when she was not working with Dr. Regan. She would rise at 06:00hrs and go for a four mile walk or a cycle; she would put out the laundry if it was a nice day; she would help her husband feed the horses and clean one block of the stables; she would then make breakfast, get the girls up, fed, and dressed, and get their lunches ready for school; she then dropped the girls to school; she would return to the farm and extend fresh semen for shipments to go out that day (by courier which arrived at 11:00hrs); she would then clean the second block of stables with her husband; she would then clean the yard;...

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