BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. The Plaintiff in this case, Thomas Daly, is a forty-nine year old man who resides at Tullyglass, Court Lower, Shannon in the County Clare. He is a married man with three children; the youngest of whom is sixteen years of age and, at the time of the events which gave rise to this claim, was employed by the second named Defendant as their assistant security manager. He comes before the Court seeking damages by way of compensation for injuries allegedly suffered by him as a result of an incident in which he was involved on the 12th July, 1993 in the course of his said employment with the second named Defendant at certain premises, the property of the first named Defendant, situate at the Shannon Industrial Estate in the County of Clare. In this regard, the Plaintiff alleges that, while carrying out security duties in the course of his said employment with the second named Defendant in an office located on the said premises of the first named Defendant, he collided with a glass panel which was adjacent to the door of the said office as a result of which he suffered the injuries of which he complains. The Plaintiff purports to blame his employers and the first named Defendant for the said occurrence on the grounds that the glass panel with which he collided contained no markings or other manifestations whereby its presence beside the door to the said office was indicated and highlighted. He further complains that because the glazing in the said panel was not sufficiently thick and toughened, the injuries which he sustained were considerably more severe than they might otherwise have been. I heard evidence from Mr. Patrick O'Connell B.E., on behalf of the Plaintiff and

2. Mr. Anthony Brennan B.E., on behalf of the second and third named Defendants. Both engineers produced photographs of the glass panel with which the Plaintiff is alleged to have collided showing its propinquity to the door of the office in which the Plaintiff had been carrying out his security duties. Moreover, they established to my satisfaction that the said door was eighty-two inches high and thirty-three and a half inches wide whereas the panel was one hundred inches high and thirty-five and seven-eighth inches wide. Both engineers agreed that the relevant code of practice requires that glazing which is located close to a door in a business premises should be manifested and that, in the absence of such manifestation, the glass panel in question would be a hazard. they also agreed that relevant regulations require that the glazing in such a panel be toughened so as to reduce the risk of injury to any person who might come in contact with it. In this connection, Mr. O'Connell gave evidence, which I accept, that the glazing of the panel in question is not toughened, that it contained no safety characteristics and was, therefore, unsuitable for such a panel. For his part, Mr. Brennan said that the glazing in the said panel was six millimetres thick whereas relevant regulations dictated that it should have had a thickness of ten millimetres. It was common case that, at the time of the incident of which the Plaintiff complains, the glass panel in question was without any manifestation whatsoever.

3. That the Plaintiff collided with the glass panel in question, there can, in my view, be no doubt and I am equally satisfied that he did not do so deliberately. Clearly, he did so in the mistaken belief that he was passing through an opening and I have no doubt but that, had the glass panel been properly manifested, he would not have made that mistake. Moreover, while I accept that the glazing in the panel was of such thickness that it required considerable force to break it, which, in fact, the Plaintiff did when he came in contact with it so that he must have been moving at some speed, I am equally satisfied that, had that glazing been of the thickness required by the relevant regulations, it would not have broken and the injuries suffered by the Plaintiff would not have been anything like as severe as they actually were. In the foregoing circumstances, I have no doubt but that the first and second named Defendants were negligent for failing to ensure that the said panel was adequately manifested and toughened and that, as a result of that negligence, the Plaintiff suffered the injuries of which of he complains. On the other hand, I had evidence which satisfied me that the Plaintiff was very familiar with the layout of the office in question and, in particular, with the juxtaposition of the said glass panel and the door to the office. This familiarity arose from the fact that, during the previous two years and nine months, he had carried out security duties in the first named Defendant's premises, including the office in question, on a daily basis. He would also have known that there were many similar glass panels with adjoining doors located throughout the premises. Given that familiarity, it was submitted on behalf of the Defence that the Plaintiff was largely, if not totally the author of his own misfortune, in that, irrespective of any manifestation, he knew well where the glass panel was located and it only required the minimum of care on his part to avoid colliding with it. Alternatively, it was suggested that there was a high degree of contributory negligence on his part. In this regard, Mr. Daly protested that he was not as familiar with that office as he was with other portions of the first named Defendant's premises because, more often than not, that office was locked. However, I am inclined to accept that he would have been very familiar with the layout of that office. There was controversy as to whether or not, at the time that the Plaintiff collided with the glass panel, the door of the office was closed; Mr. Daly maintaining that, in fact, it was, having been blown shut by a draught through an open window in the office although he, himself, did not appreciate that fact as he was leaving the office. For their part, the Defendants argued that, in the light of the evidence of Mr. Brennan that as the door was somewhat stiff and not easy to close, it was extremely unlikely that it would have been blown shut by a draught and that, if it was not closed, there was even less excuse for the Plaintiff to collide with the glass panel. While I am inclined to think that, at the material time, the door of the office was closed, it seems to me that, for the purpose of determining liability in this case, it does not much matter whether or not it was closed. As I have already indicated, I am satisfied that the Plaintiff did not deliberately collide with the glass panel. He did so because he believed that he was passing through an opening and he was lured into that belief by the fact that there was no manifestation on that panel. Had it been appropriately manifested, it is my opinion that the Plaintiff would not have walked into it and that we would not be here today. The whole incident would have taken no more than a split second and, notwithstanding his familiarity with the first named Defendant's premises, I can well understand that, when he went to leave the office in question, the Plaintiff was not thinking of glass panels but of leaving the office through what, in that split second, appeared to him to be the exit. I am firmly of the view that Mr. Daly would not have mistaken the glass panel for an exit had it been properly manifested and, therefore, not only do I not consider him to have been the author of his own misfortune, but I do not think that he was guilty of any culpable negligence whatsoever.

4. As a result of colliding with the glass panel, the Plaintiff suffered injuries to his head, his left hand and, more particularly, his right knee. He said that, immediately after the incident, he was quite shocked and noticed blood which apparently came from a cut in his head running down his face into his eye, that his right hand was cut and bleeding and that there was a hole in his right trouser leg from which blood was oozing. Initially, he was seen by a Dr. Flynn who, apparently, did not do a whole lot for him but referred him to Limerick Regional Hospital where the cut on his head, which Mr. Daly conceded was little more than a minor scratch, was cleaned, a laceration of his right hand was cleaned and sutured and a piece of glass which was embedded to a depth of some six centimetres on the inside of his right knee was removed and the resultant wound cleaned and sutured. Mr. Daly said that that piece of glass was approximately one and a half inches long. After this treatment, the Plaintiff's right arm was elevated, his right knee bandaged and he was discharged from hospital; significantly, without having had any x-rays taken. While, in the immediate aftermath of his accident, the Plaintiff said that his right hand was very sore and his right knee painful, after he had been treated, he did not experience much pain. He had to return to the Regional Hospital Limerick on a couple of occasions to have his right hand and right knee dressed and the sutures were removed some ten days after his accident. The Plaintiff said that, when the sutures were removed from his right knee, the wound opened slightly and he was told that, if it opened any more, he was to return to hospital for re-suturing. However, that did not occur. As I interpret the Plaintiff's evidence, he experienced little discomfort or disability arising from the injuries which he had sustained to his head and right hand and that these cleared up within a relatively short period of time and have not troubled him since although there is a residual small scar on the hand. Not so, however, the injury which he sustained to his right knee. As time passed, the knee became progressively more painful and inhibited his capacity to walk and to kneel, although he had been advised in hospital that he should make every effort to mobilise the knee. So bad did the problems with his right knee become that the Plaintiff was constrained to return to hospital where, when the knee was examined by a doctor, the Plaintiff was advised that there was nothing significantly wrong with it. However, he was not satisfied to accept that advice and demanded that the knee be x-rayed which revealed a large fragment of glass lying on the inner aspect of the knee. In the light of that finding, the Plaintiff was referred to Mr. Brendan McMahon F.R.C.S., an orthopaedic surgeon, who arranged for his admission to the orthopaedic hospital at Croom where he underwent surgery for the removal of that fragment of glass, in the course of which the wound was explored and it appeared that the fragment had not penetrated into the knee joint. Following that operation, the wound was sutured and bandaged and the Plaintiff was discharged on crutches and, since that time, he has required artificial aids to ambulate any significant distance.

5. At this juncture, it is appropriate to note that the Mid-Western Health Board were joined as a Defendant in these proceedings as the body responsible for the conduct of the medical staff at the Regional Hospital, Limerick, on the grounds that the Plaintiff maintains that the staff at the said hospital were negligent for failing to arrange to have his right knee x-rayed on his admission to hospital immediately following the incident which gave rise to this claim whereby the second piece of glass which was embedded in that knee was not detected and remained in situ for some thirty days before it was discovered thereby occasioning additional and unnecessary pain, discomfort and disability for the Plaintiff and causing long term damage to his right knee which would not have occurred had that fragment of glass been discovered and removed in the immediate aftermath of his accident. For their part, while conceding that the omission to have the Plaintiff's right knee x-rayed at that time cannot be justified and, therefore, constituted negligence on the part of the medical staff at the Regional Hospital, Limerick, the third named Defendant maintains that that omission did not contribute in any way to the problems which the Plaintiff subsequently experienced with his right knee and, in particular, the fact that the said fragment of glass was allowed to remain

6. It is unnecessary, I think, for the purpose of this judgment to review in detail all the problems with his right knee which the Plaintiff experienced after the second fragment of glass was removed from it in the month of August 1993. It is sufficient to note that, from that time, the Plaintiff has experienced persistent pain and restriction of movement of his right knee which, over the years, has got progressively worse with the result that he can no longer walk any distance without the assistance of crutches or other aids and, for some time past, has found that, if he is to have any freedom of movement out of doors, he must have recourse to a wheelchair. Moreover, his right leg has become cold and discoloured due to lack of circulation. Furthermore, towards the end of 1993, the Plaintiff began to experience pain in his lower back which, with the passage of time, has got progressively worse and is now a constant and further disabling companion. In this connection, it is relevant to note that the Plaintiff had experienced problems with his back in the late 1970's and early 1980's which, at that time, prevented him from working and necessitated his having to undergo two surgical procedures involving laminectomies for lumbar disc disease; one in 1979 and the other in 1983. However, while he conceded in evidence that, following the second operation, he continued to experience pain in his back for about a year or so, he maintained that, from thence on, he was asymptomatic with regard to his back until late in the year 1993. Given that the Plaintiff was in regular employment from in or about the year 1984 until the date of the incident which gave rise to this claim, I accept that he had no significant problems with regard to his back during that period. Moreover, in the light of the medical evidence given before me and, in particular, that of Mr. Desmond Mackey F.R.C.S., I am satisfied that the problems with his back which the Plaintiff has experienced since late 1993 and which continue to trouble him up to the present time are largely attributable to his inability to walk correctly and to adopt a proper posture on account of persistent pain and restriction of movement of his right knee. In other words, I think that the majority of the problems which the Plaintiff has experienced with his back since late 1993 are directly related to the injuries which he suffered as a result of the incident which gave rise to this claim.

7. Because of the ongoing problems which he was experiencing with his right knee, the Plaintiff was prescribed physiotherapy which was of no help and had to submit to a variety of investigative procedures. On the 28th January, 1994 he was admitted to hospital where, under general anaesthetic, he was subjected to arthroscopic examination of his right knee which revealed minimal synovitis but no evidence of glass or debris within the knee joint. The synovial biopsy taken at that time showed evidence of inflammatory infiltrate. On the 6th April, 1994 he was subjected to a bone scan of both knees and which showed a diffuse slightly increased uptake around the right knee compared to the left which was viewed by his doctors as being suggestive of a sympathetic dystrophy problem. Subsequently, he had two nerve block injections in his right leg which made him ill but afforded no relief. As time passed, the Plaintiff became depressed and upset on account of his ongoing physical problems, the financial strain which his inability to work was causing; he gave evidence that his house was almost repossessed and difficulties in his marriage which he said was due to the fact, as he put it, that he was no longer a good person to live with. Indeed, the Plaintiff gave evidence that his marriage has broken down and that he and his wife are about to separate and, given that this is a view shared by Dr. James Fehily, a psychiatrist, whom the Plaintiff consulted with regard to his depression, I have no reason to doubt it. In this regard, Dr. Fe hily gave evidence that the Plaintiff is suffering from a post-traumatic depression which is reactive to his accident and also to the domestic situation which followed in the wake of his accident and, although he had a positive attitude to counselling and even showed a little improvement following counselling in the year 1996, he has disimproved emotionally since that time and the prognosis for his future in that regard is very guarded. On account of his depression, the Plaintiff has had to have recourse to anti depressant medication and sleeping tablets. In March 1994, the Plaintiff was referred to Mr. Desmond Mackey F.R.C.S., an orthopaedic surgeon, who, in the light of the Plaintiff's history since his accident and having regard for the results of the several tests to which he was subjected and, in particular, the results of successive x-rays of the Plaintiff's right knee joint which has showed progressive demineralisation, concluded that that Plaintiff was, indeed, suffering from a condition known as reflex sympathetic dystrophy; a condition alternatively known as "sudeck's atrophy". Apparently, this is an abnormal neuro-vascular response to trauma which occurs very rarely; in Mr. Mackey's view, only about 1% of the time and can be triggered by the mildest of traumatic incidents. In Mr. Mackey's view, the condition of reflex sympathetic dystrophy from which the Plaintiff suffers is the most severe that he has ever encountered and he believes that it will probably persist for the rest of the Plaintiff's days. As a result, it is

8. Mr. Mackey's view that the Plaintiff will always experience pain and restrictitive movement of his right knee and coldness in his right leg and that, as a result, his back will always be under a strain with consequential pain and disability. Indeed, it was Mr. Mackey's view that, objectively, the Plaintiff would be better off were his right leg amputated although he did not criticise the Plaintiff for declining to have the leg amputated. Nevertheless, Mr. Mackey was firmly of the view that the Plaintiff would never be able to return to his previous employment and, indeed, would be permanently incapable of engaging in any worthwhile occupation. Moreover, he would require pain relieving medication for the rest of his days. In addition to the evidence of Mr. Mackey, I was furnished with medical reports on the Plaintiff submitted by Mr. Brendan McMahon F.R.C.S. and by Mr. Thomas E. Burke F.R.C.S., who had looked after the Plaintiff in his own interests and I had evidence from Mr. Brian J. Hurson F.R.C.S.I., who had examined the Plaintiff on behalf of the first and second named Defendants and from Mr. Patrick K. Plunkett F.R.C.S.E. and Dr. Michael Hutchinson, who had examined the Plaintiff on behalf of the third named Defendant. As I interpret those reports and the testimony of the several specialists, who gave evidence before me, all are of the view or, at least, those who considered the question are of the view that Mr. Mackey's diagnosis that the Plaintiff is suffering from a reflex sympathetic dystrophy in his right knee is a correct one. Moreover I do not interpret any of these specialists as taking serious issue with Mr. Mackey's view with regard to the Plaintiff's ongoing problems or Mr. Mackey's prognosis for his future although I note that Mr. Hurson says that the fact that the Plaintiff underwent two laminectomies for his lumbar spine was likely to give rise to back problems irrespective of any injury which he suffered in the incident which gave rise to claim. Essentially, however, it seems to me that the medical opinion with regard to the Plaintiff's current condition and the prognosis for his future is all one way; namely, that he will experience pain and disability in his right knee and back for the rest of his days and will never again be able to engage in gainful employment and, in so far as his future is concerned, I also had evidence from

9. Ms. Susan Tolan, an occupational therapist and a vocational consultant that, in her view, the Plaintiff will never secure employment of any kind although he may be able to develop computer skills for leisure purposes.

10. While the medical specialists who gave evidence before me may, to a large extent, have been adidum with regard to the fact that the Plaintiff was suffering from reflex sympathetic dystrophy in his right knee and, indeed, with regard to his ongoing problems arising from that condition and the prognosis for his future, they certainly did not agree on the cause of the condition and much of the hearing of this action was devoted to conflicting medical evidence as to its cause. In this connection, in his direct evidence, Mr. Mackey, while conceding that the initial trauma to the Plaintiff's right knee could have precipitated the onset of reflex sympathetic dystrophy, expressed the view that he was more likely to develop that condition after repeated trauma and, in particular, he expressed the view that the fragment of glass which had been left in the Plaintiff's knee for some thirty days would have been an irritant which increased the likelihood of the onset of reflex sympathetic dystrophy by some 3%/5% so that, on balance, he thought that the bigger contribution to the problem was probably the trauma arising from the fragment of glass which was left in the Plaintiff's right knee for some thirty days. However, under cross-examination, Mr. Mackie agreed that the Plaintiff had experienced hyper sensitivity in his right knee and that that would indicate damage to the superficial nerves in the knee. He also agreed that nerve damage was a classic trigger for reflex sympathetic dystrophy although not the only one. He reiterated his view that the fragment of glass lying in the knee was likely to be an irritant but, at the same time conceded that, as there was no surrounding infection when the second fragment of glass was removed from the knee it would appear that that fragment had not caused any ongoing damage. In those circumstances, he said that he would have to concede that, perhaps, the principal cause of the reflex sympathetic dystrophy was the initial trauma suffered when the Plaintiff walked into the glass panel but that he thought that the fact that a fragment of glass had been allowed to remain in situ for thirty days and that the knee then had to be explored in order to remove it was a contributory factor. To be frank, Mr. Mackey did not impress me as being a reliable witness with regard to the cause of the reflex sympathetic dystrophy from which the Plaintiff suffered. For his part, Mr. Brian Hurson, who gave evidence on behalf of the first and second name Defendants, while conceding that it was a reasonable proposition to assert that the initial trauma to the Plaintiff's right knee as a result of colliding with the glass panel was the cause of the reflex sympathetic dystrophy, he was of the view that the delay in removing the second piece of glass certainly contributed to the condition but to what extent he could not say. In this regard, while he agreed that the Plaintiff was hyper sensitive throughout his right knee, he did not think that the injury which he suffered included the severance of any nerves although he accepted that there would be some small nerve damage in the vicinity of the cut occasioned by the initial trauma. Dr. Michael Hutchinson, who gave evidence on behalf of the third named Defendant and emphasised that he was the only neurologist who had given evidence in the case was adamant that the initial trauma to the Plaintiff's right knee had caused nerve damage. That being so, Dr. Hutchinson said that the likelihood of the onset of reflex sympathetic dystrophy was much higher than it would be in the absence of nerve damage and he referred to a study on the management of sympathetic pain by J. E. Charleton in support of that proposition. Dr. Hutchinson added that as the second fragment of glass was found lying outside the knee joint; as he put it "walled up" and had not caused any local inflammation, it followed that that piece of glass was not responsible for any ongoing damage and he did not think that the retention of that fragment of glass in close proximity to the knee joint for thirty days either increased the risk of the onset of reflex sympathetic dystrophy or contributed to it. Under cross-examination,

11. Dr. Hutchinson agreed that, when he had first considered the question of the likely cause of the onset of reflex sympathetic dystrophy, he had speculated on the possibility that the fact that a fragment of glass had been allowed to remain in the knee for almost a month would contribute to further damage to the nerves in the area in which the glass was present and concluded that it was impossible to say whether or not the reflex sympathetic dystrophy was worsened by the persistence of that glass in the wound and the delay in its removal. However, Dr. Hutchinson said that, on reflection, that conclusion was wrong and that the original view as expressed by him should be disregarded. He said that he had changed his mind when he saw the notes from Croom Hospital with regard to the removal of the second fragment of glass and, in particular, the fact that those notes indicated that that fragment of glass was removed very easily and that there was no evidence of infection around it. I also heard evidence on behalf of the third named Defendants from

12. Mr. Patrick K. Plunkett F.R.C.S.I., an accident consultant, who said that he had never seen a worse case of reflex sympathetic dystrophy than that suffered by this Plaintiff. He agreed with Mr. Hutchinson that the probabilities are that the condition was triggered by the initial trauma to the Plaintiff's right knee because of the fact that, in his view, that trauma included nerve damage. In this connection, Mr. Plunkett said that once there is damage to a nerve, the likelihood of the onset of reflex sympathetic dystrophy rockets. However, Mr. Plunkett rejected the proposition that the fragment of glass which was allowed to remain in the knee for some thirty days had any bearing on the condition of reflex sympathetic dystrophy. In his experience he had never came across a case of retained glass causing that condition nor had he come across any literature in which it was suggested that a retained body could cause it. In this regard, Mr. Plunkett pointed out that, in an average year, he would see two to three patients suffering from reflex sympathetic dystrophy and many cases involving patients with retained glass in their bodies.

13. I am persuaded by the evidence of Dr. Hutchinson and Mr. Plunkett which, to a certain extent, was supported by that of Mr. Hurson that the principal cause of the onset of reflex sympathetic dystrophy in this Plaintiff's right knee was the initial trauma which he suffered when he collided with the glass panel. However, I am not convinced that the fact that a fragment of glass was allowed to remain in the knee for some thirty days after the initial trauma did not effect the Plaintiff in any way and, in particular, did not have any bearing on the progression of the reflex sympathetic dystrophy. In my view, apart from the medical evidence which I heard, it defies reason that a fragment of glass of the size of the fragment which was removed from this Plaintiff's knee on the 11th August, 1993 and which had jagged edges, would not cause discomfort when lodged close to a moving joint such as a knee and would not cause some long term damage if left in that position for some thirty days. Accordingly, while I think that the preponderance of this Plaintiff's problems are attributable to the injuries which he suffered at the moment when he collided with the glass panel in question and that, therefore, the first and second named Defendants must bear responsibility for the lion's share of the damages which I propose to award to this Plaintiff, I think, nevertheless, that the third named Defendant have a liability in damages arising from the failure of the medical staff at the Regional Hospital Limerick to x-ray the Plaintiff's right knee in the immediate aftermath of his accident whereby a fragment of glass was allowed to remain in that knee for some thirty days. As between the first and second named Defendants on the one hand and the third named Defendants on the other, as I have indicated, I think that by far the greater degree of culpability is that of the first and second named Defendants and therefore, I propose to apportion liability as to 85% against the first and second named Defendants and 15% against the third named Defendants.

14. In so far as damages are concerned, taking into account all that the Plaintiff has suffered for the last four and a half years including his inability to work, to play golf and to attend hurling matches I will award a sum of £20,000. As for the future, allowing that the Plaintiff is not yet fifty years of age and that he faces the melancholy prospect that, for the rest of his days, he is going to experience pain and disability in his right knee and back which will prevent him from engaging in a variety of activities and, in particular, will deprive him of the satisfaction of earning a living and also bearing in mind that he faces the prospect of domestic upheaval and ongoing emotional problems, I will allow a further sum of £100,000. So far as special damage to date, including loss of earnings, is concerned, I note that a figure of £84,000 has been agreed and I will allow that figure. As for the future, I am convinced by all the evidence that I have heard that this Plaintiff will never again be fit to undertake remunerative employment on a regular basis. He may be able to sell an odd painting and if, as he hopes and his occupational therapist Ms. Susan Tolan hopes, he becomes computer literate, he may obtain some odd jobs in that field. In general, however, I am satisfied that he will never again be able to earn a living and, if he does succeed in earning any money, it will be a mere pittance. I am told that it has been agreed between the parties that, if the Plaintiff were still in his pre-accident employment, he would now be earning a sum of £450 net per week. It is also agreed that the capital value of the loss of £1 per week for this Plaintiff from the present time to age sixty-five is £582. While, perhaps, I am doing him a disservice, I will allow, very arbitrarily, that, because the Plaintiff has the capacity to become computer literate, he also has the capacity to earn what I might describe as some pocket money which I will assess at £20 per week. Accordingly, he will suffer a future loss of earnings to age 65 at a rate of £430 per week which, when capitalised, amounts to £250,260. However, even had he never been involved in the incident which gave rise to this claim, there was no guarantee that the Plaintiff would have remained in regular employment for the rest of his life. In this connection, it is clear from the medical evidence that his back was vulnerable arising from the surgery which he underwent in the late 70's and early 80's and, accordingly, it is possible that he would have had to give up working on account of problems with his back before he reached the age of sixty five. Alternatively, it is possible that he would have lost his pre-accident employment for a variety of reasons and, because of his age, would have found a difficulty in obtaining suitable alternative employment. In this regard, Mr. Daly's work history suggests to me that, more than most, he would have been able to find suitable alternative employment, if necessary. Nevertheless, the possibility exists that, for a variety of reasons, even if he had he not been involved in the incident which gave rise to this claim, the Plaintiff would not have remained in regular employment for the rest of his working life and I think that the Defendants are entitled to a discount on that account. In my view, a reasonable discount would be 15% and, accordingly, I will allow the Plaintiff the sum of £212,721 in respect of future loss of earnings. There will therefore be judgment for the Plaintiff in the sum of £416,721.