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Martin v. Byrnes [1999] IEHC 107 (17th February, 1999)
THE
HIGH COURT
1995
No. 1980p
BETWEEN
PATRICK
MARTIN
PLAINTIFF
AND
RODNEY
BYRNES AND
THE
MOTOR INSURERS BUREAU OF IRELAND
DEFENDANTS
Judgment
delivered by Mr. Justice Barr on the 17th day of February, 1999
.
1. The
plaintiff is 54 years of age, a married man with four grown up children. He
comes from Raphoe, Co. Donegal, where he has resided all his life. On 20th
September, 1993 he was involved in a traffic accident in consequence of which
he sustained serious personal injuries some of which have given rise to
permanent disablement. Liability is not in issue.
2. Mr.
Kevin Moran, consultant surgeon, and Dr. Dermot Nugent, consultant
psychiatrist, gave evidence on behalf of the plaintiff. In addition, reports
from Mr. Aidan Lynch, orthopaedic surgeon, were admitted in evidence. Dr.
Desmond McGrath, consultant psychiatrist, and Ms. Jacinta Kennedy, consultant
psychologist, gave evidence for the defendants. The injuries sustained by the
plaintiff are conveniently summarised in a report from Mr. Moran dated 25th
April, 1996 as follows:-
"(1) External
Head and Facial Injuries
(b) Laceration
to the right side of his right tempro-parietal region measuring 4 cm.
(c) Laceration
to the right side of his nose with swelling of his nose.
(d) Multiple
abrasions and lacerations to jaw and chin and neck.
(e) Profuse
bleeding from his nose.
(2) Surgical
emphysema extending along the right side of his chest to the right side of his
neck with fractures of the 3rd and 4th right ribs with associated pneumothorax
and pulmonary contusion.
(3) Compound
fracture of the right radius and ulna.
(4) Injury
to his left leg with 6 cm. laceration to the pretibial surface
(5) Neurological
deficit as follows:
Right
7th cranial nerve palsy upper motor neurone type. Right hemiparesis with
increased tone on the right upper and lower limbs. Decreased power in right
upper and lower limbs and exaggerated knee and ankle reflexes on the right hand
side. In addition, he had a positive Babinsky sign on the right hand side with
a negative test on the right hand side. Positive right ankle clonus test."
3. Mr.
Moran's report also outlines treatment received by the plaintiff at Letterkenny
Hospital, advice from other specialists and his own conclusions in April, 1996.
The report continues as follows:-
"Following
admission I debrided the abrasions to his face and head and sutured the
laceration on the right side of his nose and head. I inserted a chest drain
for his pneumothorax. Skull x-ray on admission revealed no evidence of
fracture or bony injury. Following stabilisation of the patient and because of
the persistent neurological signs, I contacted Beaumont Hospital Neurosurgical
Department and was advised to have CT Scan performed, which was performed on 23
September 1993 in Derry. This didn't reveal any evidence of intra-cerebral
injury.
Following
further stabilisation of the patient, he underwent surgical procedure by Mr.
Lynch on 2 October 1993 as outlined by him to correct the fractures of his
right forearm. A subsequent follow-up, which I co-ordinated, in addition to
involving Mr. Lynch also involved Mr. Pidgeon in Beaumont Hospital; Mr.
Nadaraja in Sligo and Mr. O'Connell in Sligo.
He
visited Mr. Pidgeon on two occasions - on 10 February 1994 and 14 March 1994
for complaints which included right hemiparesis, vertigo, nasal blockage and
bilateral tinnitus. Mr. Pidgeon also found that he had a mild dysphasia with
residual right hemiparesis. Consequently, he arranged for him to have further
CAT Scan, which was essentially normal. He concluded that there was nothing
further he could do apart from rehabilitation.
With
regard to Mr. O'Connell, he was reviewed because of the gross tiredness and
sand grittiness in his eye. Mr. O'Connell didn't find any abnormality.
Mr.
Nadaraja has outlined conclusions regarding nasal blockage, difficulties with
balance and tinnitus (buzzing in his ears) which he attributed to fracture of
his nasal bones, dislocation of the nasal septum, as outlined in his report.
In addition he said the tinnitus could have been due to the accident.
Today
his major complaints are as follows:-
1. Weakness
on the right side involving upper and lower limbs associated with difficulties
in balance and tinnitus.
2. Difficulty
breathing through the right side of his nose.
3. Symptoms
of mood swings with bad temper, loss of memory, depression, difficulty in
sleeping, loss of libido, apathy (severe post-contusional syndrome).
Examination
reveals deviated nasal septum and a right hemiparesis with increased tone,
decreased power, impaired co-ordination, exaggerated reflexes.
IN
SUMMARY
It
is now some 32 months following the accident and Mr. Martin continues to suffer
from a right hemiparesis, resulting in difficulties with balance, gait,
co-ordination and using his right hand. This is further complicated by
tinnitus and difficulties breathing through the right side of his nose. He
also has severe post traumatic stress syndrome. Although he will continue to
make progress he will be left with a significant residual problem in all these
areas."
4. In
the intervening period since Mr. Moran's report in 1996 the plaintiff has made
some modest improvement, but in essence the picture presented by the surgeon at
that time is substantially the same and little, if any, further improvement
seems likely at this late stage more than five years after the accident, though
it is possible that in-patient psychological and pharmacological treatment as
envisaged by Ms. Kennedy might be of some help in improving the plaintiff's
quality of life but will not affect his physical disabilities which now must be
regarded as permanent.
5. I
have no doubt that the account given by Mrs. Martin in her evidence as to her
husband's situation since the accident is accurate and perceptive. I note that
it is also so regarded by Dr. McGrath and Ms. Kennedy. I am satisfied that the
end result for the plaintiff is as follows:-
1. He
suffered a significant head injury which caused amnesia for about two weeks
after the accident and has given rise to:-
(a) a
right sided weakness which affects his balance and gait to some extent and also
full capacity to use his right hand with some loss of gripping power.
(b) he
has memory difficulties and suffers from anxiety and inability to sleep normally.
(c) he
is liable to bouts of depression and bad temper. Prior to the accident he led
a normal social and working life. He now shuns company, even visitors to his
own home.
2. The
plaintiff continues to have difficulty in breathing through his right nostril.
The fractures of his arm have united satisfactorily and there appears to be no
need for removing the plates which Mr. Lynch inserted to secure union of the
bones.
3. The
plaintiff's condition is now permanent. He will never be fit for work as a
painter/decorator or general handyman and by reason of the head injury sequelae
and his age he is not fit for re-training in any other sphere of employment.
His enjoyment of life has been substantially impaired. There has been some
improvement in that regard over the years since the accident and even if the
plaintiff has in-patient treatment as envisaged by Ms. Kennedy further progress
in that regard is no more than a possibility.
6. Raphoe
is an employment blackspot and has been throughout the plaintiff's working
life. Prior to the accident he had two sources of income in addition to social
welfare. He did some casual painting and decoration work for customers in the
town from time to time and he was also the local grave digger. His services in
that regard were required twelve to fifteen times a year at a cost of £60
per grave. Due to his defective memory he was unable to give details of his
earnings from occasional painting and decoration.
7. On
19th October, 1992, eleven months before the accident, a FAS scheme to provide
work for long term unemployed was initiated in Raphoe. The plaintiff joined
and thereafter was remunerated by FAS at the rate of £127 gross per week
in lieu of his dole money which would have been slightly less. That scheme is
still in being and I am satisfied that the plaintiff would have continued in it
even though his initial contract was for one year only. I also apprehend that
the FAS scheme probably will continue for at least the next decade (i.e. for
the balance of the plaintiff's normal working life). The scheme is countrywide
in its operation and has had a major success in combating the problem of long
term unemployment. Having regard to the fact that so many unemployed people
have been taken off the live registered through the scheme, I apprehend that no
Government would return a large number of workers to the dole through
abandonment of the scheme save in circumstances of dire economic disaster in
the economy. It seems to me the probabilities are that the plaintiff, who
appears to have been an enthusiastic member of the scheme and hoped for
promotion to the rank of foreman or supervisor, would have continued in it for
the rest of his working life up to age 65 if the accident had not happened.
8. In
the light of the foregoing I assess damages as follows:-
9. Agreed
special damages less disability benefit for which
credit
must be given, net -
£
1,854.00
10. Loss
of FAS and grave-digging earnings to date, net of tax -
£33,397.00
11. Continuing
net loss of earnings taking into account
12. Reddy
-v- Bates but excluding casual earnings as a
painter/decorator
-
£50,000.00
13. Pain,
suffering and disablement to date -
£20,000.00
14. Pain,
suffering and disablement in the future including
loss
of enjoyment of life -
£70,000.00
TOTAL £175,251.00
© 1999 Irish High Court
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