Yun -v- MIBI & Tao, [2009] IEHC 318 (2009)

Docket Number:2004 3923 P
Party Name:Yun, MIBI & Tao
Judge:Quirke J.
 
FREE EXCERPT

THE HIGH COURT2004 3923 P

BETWEEN

MAGGIE YANG YUNPLAINTIFFAND

THE MOTOR INSURERS BUREAU OF IRELAND

AND

TOMMY XIANG BAI TAODEFENDANTS Judgment of Mr. Justice John Quirke delivered on the 17th day of July 2009

The plaintiff, Ms. Yang Yun, was born on the 1st May, 1981, and is now twenty-eight years old. On the 9th May, 2002, just eight days after her twenty-first birthday, she suffered serious personal injuries when a motorcar, driven by the second named defendant, Tommy Xiang Bai Tao, struck the rear of another vehicle on the public highway near Drogheda in County Louth. It then collided with a third vehicle.

The plaintiff was a rear seat passenger sitting directly behind the driver of the vehicle when the collisions occurred. She was wearing a seatbelt. She suffered very serious injuries as a result of the collisions including: (i) a compression fracture of her first lumbar vertebra, and, (ii) a further compressive collapse of the superior anterior end-plate of her first lumbar vertebra with kyphosis in an anterior posterior direction at the level of the fracture.

In these proceedings she claims damages from the defendants to compensate her for her injuries and for the consequent loss and damage which she has sustained.

She claims that the collisions, (and her consequent injuries), were caused by the negligence and breach of duty of the second named defendant, Tommy Xiang Bai Tao.

Her claim against the first named defendant, the Motor Insurers Bureau of Ireland, is made pursuant to the terms of an agreement in writing dated the 21st December, 1988, between the (then) Minister for the Environment and the Motor Insurers Bureau of Ireland.

Both defendants admit that the road traffic collisions on the 9th May, 2002, which caused the plaintiff's injuries were caused by the negligence of Tommy Xiang Bai Tao and that the plaintiff is entitled to recover damages from both defendants, jointly and severally, to compensate her for her injuries and for the loss and damage which she has sustained and will sustain in the future.

No contributory negligence has been alleged on the part of the plaintiff and, accordingly, the task for this Court is to assess the damages to which the plaintiff is entitled by reason of the admitted negligence and breach of duty of the second named defendant.

FACTUAL EVIDENCE

The following facts have been established in evidence:

  1. The plaintiff was born on the 19th May, 1981, in the city of Dalian in Northern China. She is the only child of devoted parents. Her mother is the manager of a hotel and her father is a transport manager working in the same hotel. She was enrolled by her parents in a good local regional school (called the Dongbei University of Finance and Economics) at the age of 6 years and received an excellent first and second level education in China.

    A Notarial Certificate issued by her school recorded that, during her final three years at school, (between the 1st September, 1997, and the 15th July, 2000,) she attended the school's College of Technology and achieved an impressive student's score list in a variety of subjects including: Chinese; Maths; English; Computer Science; Economics Law; Securities Law; Physical Education and a number of other subjects.

    She chose not to proceed to third level education in China. Instead she decided to travel with her boyfriend, Tony Cao Zhi (hereafter "Tony"), to Europe after graduation so that she could learn English and study accountancy.

    She wished to graduate with an internationally recognised degree in accountancy. An advertisement in a local newspaper recommended Irish educational institutions and in consequence she chose to travel to Dublin to achieve her objective.

    She arrived with Tony in Dublin and commenced an intermediate English language course in the American College in Dublin for six months.

    In April, 2002, she enrolled in the English Language Institute on St. Stephen's Green for a one-year course in English at a cost to her of 2,000.

    Thereafter, it was her intention to commence a three-year accountancy degree course in either University College Dublin or Grace's College preparatory to graduation as a Certified Accountant.

    She obtained a student visa which permitted her to work in Ireland for up to twenty hours per week whilst she was resident within this jurisdiction.

  2. On 9th May, 2002 the collision occurred which caused her injuries. The car in which she was a passenger was travelling from Dublin towards Drogheda. She heard a bang and felt that her body had been thrown forward and backwards as a result of a very big impact.

    She immediately suffered pain in the middle of her back which was so severe that she could not speak and was unable to move. When the car came to a halt she loosened her seatbelt with her left hand and opened the door with her right hand. When she tried to step out and to stand up, she felt unbearable pain in her back and slid down onto the ground close to the damaged car.

    After a short time an ambulance came and she was provided with oxygen. Supports were placed on the stretcher which had been provided for her. A paramedic cut off her clothes and touched the area which was swollen. When he did so, she suffered a pain so severe that it was difficult to describe. She was brought to Our Lady of Lourdes Hospital in Drogheda where X-rays and CAT (CT) scans were undertaken.

    On admission to hospital, she was asked to stand up but the pain was so severe that she became deaf and was assisted back to bed, she was sweating and her hair was sticky and her clothes were wet.

    She remained in the hospital in Drogheda for between eight and ten days suffering constant severe pain in her back. Whilst in the hospital she could not walk or visit the bathroom by reason of her condition. Doctors administered painkillers intravenously though her stomach. A swollen area developed in the centre of her back which she could not touch.

  3. She was treated in hospital by way of medication only. A soft brace was applied to her back. After she had been discharged home she suffered constant debilitating pain and very severe disability in every aspect of her life. This pain and those disabilities have remained with her constantly since. She has required continuous care and assistance from her boy friend, Tony, for every type of domestic activity and for the performance of intimate bodily functions. This has caused her constant humiliation and embarrassment.

    She needs assistance walking, (even short distances), because the pain when she walks is severe. She sleeps in pain and with difficulty for short periods. She cannot sit for any lengthy period. She cannot stand for more than ten minutes at a time without pain. She wears a soft brace permanently for twenty-four hours of every day.

    She has spasms of neuralgic pain which she describes as "unbearable". She requires incontinence pads during these spasms. When she suffers a spasm, she is "untouchable" and cannot be helped. She must lie on her bed during the most severe spasms which last for an entire day.

    She requires the application of painkilling cream and infrared treatment every morning and every night to help relieve the pain. She takes medication every four hours. This adversely affects her appetite and often causes her to vomit. She eats from a feeding bowl by lying backwards and balancing the bowl upon her chest. If she tries to eat in any other manner, she loses her appetite entirely.

    If she wishes to use the bathroom at night, she needs assistance to make that journey. She has constant dreams about the collision. In these dreams she is flung backwards and forwards. These dreams terrify her and make her relive her immediate post-accident pain. She has been unable to return to school to continue her studies.

    Before the accident, she telephoned her parents regularly. She lives upon the remittances which they send to her from China. She has not informed her parents about the collision and her injuries because she does not want them to discover her present status. Her injuries are a source of shame for her. Disability carries with it a stigma in her home region in China. If her parents knew of her condition they would be worried and concerned about the life she is now living far away from them. Her father has a fragile heart condition. She is concerned for his health if he learns of her injuries and their consequences for her.

    As a consequence of the accident she now has an unsightly swelling or hump in the lower centre of her back which is known as a "gibbous". Her medical advisers have discussed with her the possibility of her undergoing reconstructive surgery to correct this deformity and to reduce her pain. They have explained to her that the angulation of her back has been adversely affected by her injury. It should be nought degrees. Immediately after the accident it had increased to between thirty degrees and forty degrees. It is presently sixty degrees and is likely to deteriorate further.

    The objective of the surgery will be: (a) to correct the unsightly angulation within her spine and to remove the "gibbous" and (b) in particular, to relieve or reduce the level of continuous pain which she now suffers as a consequence of her injury.

    She has been told in lay person's terms that the surgery, if undertaken, will require that she be stretched across a bent table while her back is surgically opened so that metal or titanium rods can be inserted within her spine. Thereafter, the table will be straightened and the spine will straighten with the table.

    Having advised her of the risks associated with it, (including a risk of paraplegia which has been calculated at between 1% and 5%), her surgical advisers have recommended that she should undergo the surgery.

    She is not willing to do so. She has a consuming fear of paraplegia. One of the reasons for her fear is that physical disability, (and in particular paraplegia), carries with it a special stigma in her home region in...

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