McEneaney v. Monaghan County Council [2001] IEHC 114 (26th July, 2001)

5. Ms. McCaughey at between 6 and 7pm having travelled some twelve miles to her home at Castleshane outside Castleblayney. They went to the Glencairn Hotel, later to the Spectrum Pub and later again back to the Glencairn where there was a disco which went on to 2:00 or 2:30am. The plaintiff and Ms. McCaughey left about an hour before that, however, because

6. Ms. McCaughey to her home at Castleshane travelling in the Monaghan direction. As they were travelling he had to slow down to pass through a line of cones which he did without difficulty and then resumed his speed travelling in a northerly direction on the newly surfaced national road between Castleblayney and Monaghan. As he approached a fast super-elevated bend to his left, his car suddenly went out of control having skidded on a patch of ice, travelled across the centre of the road, across the oncoming carriageway, the hard shoulder, the soft shoulder, through a fence and eventually hit a tree. While it was careering across the road it went through a turn of approximately 180 degrees so that the impact with the tree occurred at the right hand rear corner of the car. The plaintiff was found facing down some 10 feet further on away from the car and most likely was catapulted backwards out through the rear window. His passenger Ms. Caughey was found hanging by her seat belt, the car having come to rest on its left side. The plaintiff was not wearing a seat belt.

7. The plaintiff sustained catastrophic injuries as a result of this accident. His spinal cord has been severed between the fifth and sixth thoracic vertebrae resulting in complete paralysis below the level of the nipples of his chest with the inevitable tragic paraplegia, loss of all sensation and useful movement below this level, loss of control of bladder and bowel function, loss of sexual sensation and meaningful function and continuing vulnerability to injury including pressure sores to the lower portion of his body. In this context fractures to his left jaw, breastbone and two ribs pale into insignificance. He was taken to Monaghan General Hospital and later the same day to the Mater Hospital in Dublin where he was noted to have sustained fractures to the laminae of his 4th, 5th, 6th and 7th thoracic vertebrae as a result of which a metal implant was inserted from his 1st to his 9th thoracic vertebrae. As a consequence of this catastrophic injury the plaintiff has, to the date of the hearing of this action in June, 2001 had more than seven years of almost uninterrupted pain and suffering, commencing with the operation in the Mater Hospital in Dublin, followed by a stay in the rehabilitation clinic in Dun Laoghaire. I will set out a summary of the plaintiff’s injuries, efforts to rehabilitate himself and prepare himself for some kind of working life in the future at a later point in this judgment.

8. Against the first defendant as Road Authority the plaintiff says that they were negligent and in breach of their duty to him in and about the design and maintenance of their road and in particular because at the bend in question they failed to provide a french drain which would have collected water which seeped from the slope on the adjoining lands to the east (that is to the plaintiff’s right as he approached the bend and owned by the second defendant) and travelled onto the road, thereby creating a localised hazard so that it was foreseeable that on a night such as the one in question a patch of black ice would form in circumstances which would not be predictable to the driver of a car.

9. This road was realigned in 1965 and had just been resurfaced in the months prior to the accident and indeed some of the cones associated with those works were still in place on the night of the accident. The 1965 realigned road replaced an earlier one further to the west (and further from the second defendant’s lands) which was about 1 metre higher and which did have a drain to the east thereof unlike the road built in 1965 and resurfaced just prior to the accident.

10. Against the second defendant the plaintiff suggests that their lands (which sloped upwards from the road at a gradient of approximately 1 in 5) contained some channels which facilitated the flow of water onto the first defendant’s road and it was further claimed by the first defendant against the second defendant that the latter had a duty under Section 76 (5) (b) of the Roads Act 1993 to take reasonable steps to prevent such water flowing onto the public highway.

11. At the conclusion of the plaintiff’s evidence on liability, counsel for the second defendant applied for a dismiss of the plaintiff’s claim against his client and both defendants having intimated that they intended to go into evidence should that application not succeed, I deferred an adjudication thereon until I had heard all the evidence. Following this the first defendant called one witness and one witness only, namely Mr. Eugene Daly, a hydrogeologist who gave evidence that it would have been possible for the second defendant to prevent the water flowing from the second defendant’s lands onto the roadway by constructing an interceptor drain some 200-300 yards long and 1 - 1½ metres deep at a cost of some £5,000.

12. Following this counsel for the second defendant made an application for a nonsuit of the first defendant’s claim for contribution and indemnity against his client to which I acceded; my reasons are available on the transcript. At this point counsel for the second defendant renewed his application for a nonsuit of the plaintiff’s claim against him and counsel for the plaintiff indicated that he was not opposing such application and accordingly I acceded to the application with the result that the second defendant had no more interest in the case save in regard to costs.

16. The source of the water at the point of the accident was ground water seeping through a vertical face which had been cut into the rising terrain to accommodate the super elevated curve of the road. The “springline” had been cut through and he referred to photographs showing water emerging from the cut. Because there had been no rain for two or three days before the accident he concluded that it was likely that it was ground water rather than rain water that had seeped onto the road and had turned to ice and in light of this he suggested that a hydrogeologist be consulted.

17. He said that it was basic engineering to provide a french drain to protect the road and he was not surprised to discover that ice had formed once water was permitted onto the road given the type of weather on the night of the accident. He said that given the problem there should have been manual and mechanical spreading of salt and a warning sign but the fundamental defect was the lack of the drain. He noted that ice was most dangerous when it was wet (just after forming) because then it was most slippy. The point at which the water seeped out onto the road coincided with the highest point of the second defendant’s lands abutting the public road. In his view 100% of the water which had seeped out onto the road came from the second defendant’s adjoining land. It was foreseeable that if you cut into the bank there was a risk that you would get ground water flowing out as happened in this case.

18. The provision of a drain was so basic that it was extraordinary that there was not one. It should have been obvious to the engineers that it was essential to have a drain. This applied also to the recent resurfacing works in the event that such drain had not been provided at the time of the original realignment in 1965. In engineering terms the cause of the water on the road was the provision of the road without a drain.

19. Evidence was given by Dr. John Sweeney meteorologist to the effect that at around midnight on the night of the accident, the temperature at the location of the accident would have been around freezing point producing a fairly rapid formation of ice at that point and given that water expands by some 11% on the formation of ice, it could well have expanded above the pebble line on the road to form a sheet of slippery ice. There had been heavy rainfall on the previous Thursday but by the early morning of the following Monday all the surface water would have long since drained away so that the water forming the ice came from the ground water.

20. Dr. David Ball, a hydrogeologist gave evidence that the heavy rainfall the previous Thursday or Friday morning would have produced the flow of ground water onto the road by the following Sunday evening or Monday morning. He said that the Road Authority should not have cut into the second defendant’s lands without incorporating a french drain.

21. Apart from photographic and mapping evidence, this was the evidence called by the plaintiff in relation to the liability of the first defendant. Whilst this evidence was subjected to cross examination, no countervailing evidence was called on behalf of the first defendant and these witnesses maintained their opinions and conclusions throughout their evidence.

22. I accept this evidence and it is clear, accordingly, that in the absence of a drain to collect the water flowing onto the road at the point of the accident, it was foreseeable that ice would form in conditions such as obtained on the night in question and present a hazard to a motorist who would not be alerted to the possibility of ice on the road in the absence of recent rain or any warning. Clearly this constituted a breach of duty owed by the first defendant to the plaintiff which amounted to negligence.

26. Maeve McCaughey said that the plaintiff had a couple of drinks towards the early part of the evening and after that was drinking water. As far as she could remember the plaintiff was drinking bottles of Heineken. She never recalled the plaintiff drinking pints. Whilst it was put to the plaintiff that there was a medical record of his having drunk pints and that a nurse’s note contained a reference to “alcohol + +” , I accept Mr. Whelehan’s submission that this suggestion of itself is of no probative value, the authors of these references not having being called and the plaintiff not having had an opportunity of cross-examining them. I note also that the plaintiff said that he was confused and might have said anything to a doctor or nurse after the accident and indeed so was Ms. McCaughey who after the accident told garda Carlisle that there were four people in the car when this was clearly incorrect. Moreover, garda Carlisle said that he did not get any smell of alcohol from the plaintiff at the scene of the accident. Accordingly the evidence in relation to the plaintiff’s consumption of alcohol is that he had at most four small bottles of Heineken over an evening commencing about 7 or 7:30pm and continuing until 1:30am the following morning. The evening included water-drinking by the plaintiff and also presumably some physical activity at the disco.

27. In my view alcohol did not affect or impair the plaintiff’s judgment or ability to drive. I note in particular that Ms. McCaughey gave evidence that he had negotiated a single lane bounded by cones placed by the Road Authority shortly before he met with his accident. To do this he would have had to slow down to perhaps 40 miles an hour and thereafter speed up again. I hold that the plaintiff was not guilty of contributory negligence by reason of the consumption of alcohol.

30. Mr. Whelehan, counsel for the plaintiff submits that there should be no such finding as there is no evidence that the plaintiff’s injuries would have been different had he been travelling 10 miles per hour slower, nor was such a suggestion put to the doctors or engineer who gave evidence. Indeed, so to conclude would be pure speculation.

“Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff .... and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant....”

“Part of the evidence to support the allegation was that of Mr. Patrick Carey, the well known neuro-surgeon. He stated that having regard to the facial and other injuries suffered by the plaintiff the probability was that he had not been wearing a seat belt. He went on to say that had the plaintiff been wearing a seat belt the chances of his sustaining the appalling injury which he suffered would have been reduced by about 25%. In the light of this evidence, if the jury had found that there was no contributory negligence on the part of the plaintiff such finding would have been perverse. The jury apportioned only 2% on the plaintiff. This Court has frequently stated that in no case can such a small percentage as 2% be warranted. The evidence in this case, in my view, justified and required a finding of at least 15%. I would substitute this percentage for that recorded by the jury.”

33. The foregoing conclusion and the basis upon which it is made contrasts with the dissenting judgment of McCarthy J. who found it impossible to understand how the wearing of a seat belt could have lessened the physical movement of the plaintiff’s neck in the car associated with his injuries. In that event he held that the defendants had not discharged the onus of proof that the plaintiff’s failure to wear a seat belt had a bearing on the injuries sustained.

Section 34(1) of the Civil Liability Act 1961 establishes as a precondition to a finding of contributory negligence that (inter alia ) a want of care on the part of the plaintiff is shown to have caused the damage. The approach of McCarthy J. requires a defendant to establish a cause and effect chain between the want of care and the injury before contributory negligence is established. The approach of the majority, in contrast, accepts that a finding of fault (blameworthiness) can be laid at the door of a plaintiff if his want of care enhances the risk that in the event of an accident his injuries will be serious. Evidence of a statistical reduction of chances of serious injury by 25% if the plaintiff had been wearing a seat belt translated into a finding of 15% fault in that case.

34. The requirement that want of care on the part of a plaintiff be shown to have caused (in part) his damage was satisfied in Sinnott -v- Quinnsworth by establishing that his want of care enhanced his risk of injury. A somewhat similar approach was adopted by Lynch J. in Conley -v- Strain [1988] IR 628 at pages 632/633. This was a case where the plaintiff was not wearing a seat belt and had been thrown out of the car. Lynch J. said:-

“The plaintiff’s surgeon gave evidence that a person thrown out of a motor vehicle is thirty times more likely to suffer serious injuries in a road traffic accident than a person who remains in the crashed vehicle. This evidence together with the evidence that the plaintiff was lying under the Opel motor car when it finished its journey upside-down in D’Alton Drive leads me to the inevitable conclusion that the plaintiff’s failure to wear the seat belt which was available to him contributed to the gravity of his injuries. I find therefore that the first defendant has discharged the onus of proving that the plaintiff was guilty of contributory negligence within the meaning of that term as used in S.34 of the Civil Liability Act, 1961, and I must therefore establish the degrees of fault of the first defendant’s son and the plaintiff respectively .”

38. As I have indicated it seems to me that a driver of a car at 10 miles per hour in excess of the maximum national speed limit without appropriate excuse is guilty of a want of care for his own safety in that he thereby incurs an enhanced risk that the consequences of any unforeseeable accident will be worse by reason of this excess speed. Notwithstanding the absence of evidence comparable to the statistical evidence given to the Court in Quinnsworth and Conley it seems to me within the competence of a court to assign fault as between the plaintiff and the defendant in the circumstances of this case. The foregoing reasoning appears to me consistent with the decision of the Supreme Court in Reeves -v- Carthy [1984] IR 348 and particularly the observations of Griffin J. at pp. 366/7 where he said:-

“On behalf of the plaintiff, Mr. McGrath submitted that, once damage of a type which is foreseeable occurs, the full extent of that damage is the liability of the defendants although the extent of the damage might not have been foreseeable ... Since the Wagon Mound (1) and Burke -v- John Paul and Co Limited, the law has not required that the precise nature of the injury must be reasonably foreseeable before liability for its consequences follows. In Salmond on the Law of Torts (16th ed., para. 202 at p. 564) Professor Heuston, with his customary clarity, has concisely and conveniently summarised this branch of the law as follows:-

“Type of damage must be foreseen . It has been made plain that the precise details of the accident, or the exact concatenation of circumstances, need not be foreseen. It is sufficient if the type, kind, degree, category or order of harm could have been foreseen in a general way. The question is, was the accident a variant of the perils originally brought about by the defendant’s negligence? The law of negligence has not been fragmented into a number of distinct torts.”

40. If this applies in relation to allegations by a plaintiff against a defendant I cannot see why it does not apply the other way round. If I am correct in identifying an enhanced risk of serious consequences should an unforeseen accident occur as a type of damage for which an excessively speeding plaintiff must accept responsibility then the extent of that damage (namely the actual injuries suffered) must also be part of his responsibility. This is because his injury is of such a kind as the reasonable man should have foreseen to use the test adopted by the Supreme Court in Burke -v- John Paul and Company Limited [1967] IR 277 from The Wagon Mound (1 ) [1961)A.C. 388.

42. As already indicated the evidence is that the plaintiff shot backwards out through the rear window, ending up face downwards some ten feet away from his car. Mr. Romeril says that in those circumstances even if the plaintiff had been wearing a seat belt it would have done nothing to interfere with his trajectory or reduce his injuries. The suggestion has been made by counsel for the first defendant that if the plaintiff had been wearing a seat belt he would have probably ended up hanging out of it like Ms. McCaughey whose injuries were relatively minor. However, Mr. Romerill says that this does not follow at all because the impact at the rear corner of the car meant that the forces were askew and not parallel, that the weight of the driver and his holding the steering wheel established quite different physics to those applying to Ms. McCaughey’s case and that these physics are quite complex and it would be impossible for him to say whether the plaintiff sustained the injury to his back by bouncing off the car as suggested by counsel for the first defendant or not.

43. His evidence was that as a matter of probability the plaintiff shot clean out of the back of his seat causing it to be flattened and through the rear window and that a seat belt if worn would not have prevented that happening. In the absence of any other evidence on this topic, I cannot speculate and I hold that the first defendant has not discharged the onus on it to establish that the plaintiff contributed to his injury by not wearing a seat belt. The medical evidence was agreed and submitted by way of written report with the exception of Dr. Patrick Murray, consultant with the Rehabilitation institute and the plaintiff’s general practitioner, Dr. Clarke, who gave evidence which will be referred to later. It was not suggested to Dr. Murray or to Dr. Clarke that the wearing of a seat belt would have affected the plaintiff’s injury. In these circumstances there is no evidence before me which suggests that conclusion and accordingly I hold that the plaintiff was not guilty of contributory negligence on this count.

44. It may be worth noting here that the difference in the context of the contributory negligence allegation in this case between the speed and safety-belt issues is that there was no evidence to rebut the inference that the plaintiff’s excessive speed contributed to his injuries whereas there was evidence to rebut the inference that a seat-belt could have reduced them.

47. There is no agreement as to the cost of care which the plaintiff will require from now on; there is evidence that the cost of care has risen at a rate of 3% higher than the general rate of inflation (itself put at some 3%) coupled with the suggestion that the court should factor this into its assessment of future costs of care and care related expenditure. There is agreement between the parties as to the particular aids and appliances which the plaintiff will need in the future and as to the cost of these. However, in relation to all future ascertainable losses (by which I mean loss of earnings and future costs) the plaintiff challenges the conventional basis upon which actuaries compute future losses by reference to an assumed 4% real rate of interest, it being submitted that a calculation on this basis under- compensates a plaintiff because the real rate of interest is approximately 2%.

48. Furthermore it is submitted that the equivalent of the figure in the region of £150,000 indicated by the Supreme Court for general damages in the case of a quadriplegic in Sinnott -v- Quinnsworth [1984] I.L.R.M. 523 at page 533 would in June 2001 (some 17 years later) be considerably more, being somewhere between £230,000 and £600,000 depending upon the criteria used.

50. The plaintiff said he is now 28. His father works in the St. John of God’s residential unit in Drumcar and also as a forester: his mother works full time at home. He trained as a mechanic, qualifying in 1993 then he took a job driving a van for C.K. Foods, for which he was paid £180 a week and also did about £70 worth of work per week at home as a mechanic for friends and acquaintances. Prior to the accident he was involved with the GAA and was in fact captain of a team on the morning of his accident. He was interested in motor sports and socialising.

51. I have already summarised his account of the events leading up to the accident. The plaintiff said that he remembered his car coming off the road around the bend and going out of control and seeing lights. He remembers his father and his brother, Terry, at his bedside in the theatre in Monaghan Hospital and knows that he was taken by ambulance to the Mater Hospital Dublin. There was a lot of unbearable pain in his back. His fractured jaw was not really sore, his chest was sore. In the Mater he remembers wanting the nurse to knock him out and give him something for his pain. He cannot remember being asked whether he had drink taken. He remembers being told by a doctor in the Mater that he wouldn’t walk again and that was a blow.

52. He was operated on twice in the Mater, once to deal with his back and next to deal with his jaw and a third time later in the Rehabilitation Institute, to remove the wires from his jaw. His chest and ribs were very painful but his jaw was not sore. He got a chest infection in the Mater Hospital and was very uncomfortable. In the Rehabilitation Institute he got a viral illness and was ill for the next six weeks with a high temperature and perspiration, which was very uncomfortable. During his time in the Rehabilitation Institute he trained on the wheelchair and sat up for the first time on St. Patrick’s Day, 1994. He was very stiff but managed and began to go home for weekends in May. He was re-trained in the use of his bowel and bladder and had to empty his bladder every four hours. He got a kidney infection and eventually was put on a Convene drainage bag system. He was discharged from the Rehabilitation Institute in September. When he went home his friends had arranged fund-raising for an adapted car and alteration to his house. They raised £26,000. He was coping well in the Rehabilitation Institute and now returned to live at home with his parents rather than with his grandmother where he had been living before. He moved into his sister’s bedroom which was adapted to provide a shower, toilet, a small kitchen and a small living room as well as a bedroom for himself. He went to a FÁS course in Dundalk on computerised mechanics.

53. Coming up to the anniversary of his accident he got depressed because this was his own target date for walking again and he failed to reach that target. He went back to the Rehabilitation Institute for a few days and was then committed to St. Davnet’s Psychiatric Hospital in Monaghan, where he was very low and depressed, and he was in and out of St. Davnet’s for the next year or so. It was a bad year. He couldn’t believe that he would have to face the rest of his life in a wheelchair. At the end of 1995 he got a clot in his right leg which swelled up and he had to go to hospital. He was there for about three weeks but it was not painful. In the first half of 1996 he attended a course in Dundalk for computers, driving himself daily. In August he was put on placement in a garage where he worked as a mechanic and with computers. He was able to manage and the experience was “just o.k.”. (Catherine Logan, occupational therapist, reports that in October of 1996 he began employer based training for twelve months in Dundalk, working in a garage as a workshop clerk, four days a week.)

54. The plaintiff said that he went to Spain with friends in 1997 for a holiday. The heat got to him and the holiday did not work out and he was sent back. It is clear that the plaintiff returned from Spain suffering from an interruption in his regime of medication and general health management. The plaintiff said he returned to his job in 1997, working on computers, earning £20 per week and receiving disability benefit of £85.50. However he was “ just let go ” from this job. Later he went to Newry to follow another course on computers and in fact the plaintiff has earned four computer awards all of which are, it seems, fairly basic. He was trying out everything he could. In 1998 he went on a disabled course to the United States of America. This course was beneficial. He had not been in the States before. He was impressed with the public buildings, especially in Pittsburg. The plaintiff is now secretary to the Access Committee for the disabled in Castleblayney. (It is instructive to contrast the plaintiff’s account of his U.S. trip with his G.P.’s account. Dr. Clarke recalling this trip said that the plaintiff had major problems in the United States and ended up in a psychiatric institution. The plaintiff rang him (Dr. Clarke) several times. He was going with a group of people and he had been strongly advised to strictly supervise the medication that he was on).

55. The plaintiff said that in 1999 he was not too bad mentally. In 1999 he got work with a computer and engraving for a short time in a factory but he was let go as there was no work for him at the time. He thought that there would be maybe in the future. When this was over he had a job with a friend of his who operated his own garage in the vicinity. The plaintiff said that he was able to sweep the floor, rub down the bumpers and bonnets of cars, strip down door panels and do a certain amount of polishing. He was very happy doing this job. He loved working with his hands and he said he did heavy work sweeping the floor every morning and that this work did not burden him. His hours were from 9 a.m. to 3 p.m. His friend did not put him under pressure and he accepted that this was more in the line of occupational therapy. He found it very therapeutic physically and mentally. He did computerised estimates on a spreadsheet for the damages to a car and he managed well with the numbers. In this context he said that he rang the manager of a Toyota garage in Castleblayney in response to a job advertisement and the manager told him, “ You couldn’t do the work.” He said that his friend, James Connor, was keeping the job open for him and he thought maybe he would be able to earn £50 or £60 a week. At present he is supposed to be in bed for most of the day (to take him away from his wheelchair in the context of curing the pressure sores to which I will refer later). But once this period is over (by next September, hopefully) he would hope to take up this or some other job.

56. Once again it is instructive to contrast the plaintiff’s evidence in this connection with the evidence given by his friend, James Connor. Mr. Connor said that he does have a garage in Castleblayney and he is self-employed there for 3 years, having worked in a Toyota garage. He is a qualified mechanic. The plaintiff used to call into him for some “craic” and he told him that he could come and try and work there. The plaintiff came in when it suited him. He could polish a bonnet if the bonnet was put on the table for him. He tried some sweeping but the plaintiff was “in the dirt more often than out of it ”. Mr. Connor said that he let the plaintiff feel that he could do the work. He would have to check the work after the plaintiff and go over the job. He might have given him £50 one week, but not two, but more often it would be £10 a week. There was “very, very little that he could do ”. The plaintiff did not do all the things that he said he did. He could not get into a car to do any work. He would come in between 9.30 and 10 in the morning and Mr. O’Connor would have him out by 1 or 2 o’clock. He did prepare a computer estimate but it was all set out for him by Mr. O’Connor and all the plaintiff had to do was have it typed. He liked the plaintiff for his company but it was not profitable for him to pay him anything like £50 a week and the plaintiff was not fit for the garage business. He couldn’t give him a reference. He could answer the phone and he could drive off and get a message, providing there was somebody at the other end to meet him when he arrived.

57. The plaintiff said that in January, 2000 he got a clot in his leg which developed into a pressure sore and he has been in bed more or less continuously as a result of that for the period leading up to the date of the hearing. He suffered from temperatures, sweating and being in bad form. He got a hospital bug and suffered from high temperatures and when at home he had to rely on his mother all the time, particularly with heavy sweats and the changeover of linen and clothing. He would have accidents with his bladder and bowel and he became very depressed during this time. At times he wanted to drive his car away to get it all off his mind. Before Christmas he went to Belfast to a consultant and was admitted to Monaghan Hospital for ten days and then Navan for four weeks, to have an operation for the septic arthritis in his left hip. In March he had two operations and the problem is still there but he is hopeful that by September next (2001) he would have cured the infection from his left hip and would be able for some job.

59. Regarding the next few years he hopes that he might take on a part-time job which would be nice and easy with no pressure. He said his sexual function is not working now and he would have liked to have had a family. His mother and father are a tremendous help to him during his low periods because he needs someone to talk to. He has not socialised since the millennium and he would like to have his own house some day. He said he is young and wants to live a bit. At present his normal day requires him to stay in bed for most of the time. When he was attending the course in Newry (which lasted twelve months) he would get up at 7.30 in the morning, leave the house at 9 a.m. for the course at 10 a.m. and drive home for 5 or 6 p.m. It was an hour’s drive.

60. In cross-examination he said that prior to his accident he was earning £250 a week on average between his pay as a driver and as a mechanic. None of this was taxed. He had been thinking of acquiring a HGV licence though he was happy doing what he was doing. Since the accident he has had three cars and has driven approximately 75,000 miles up to the beginning of his illness in hospital at the beginning of the year 2000. He travelled to Dundalk for a course, which is 15 miles away and Newry which is 20 miles away and in Newry he would have put in a full day. He would be happy to get a 5 day a week job with the weekend off and he would love light assembly work. He did not want to be stuck at home watching television but rather he would love to work in the open market.

61. His father has offered him a site, which would be some 200 yards away from home. His father’s holding is 36 acres. He would like his house to be as normal as possible and it would be great to be independent. He might require nursing care for one hour in the morning and one hour in the evening, or more when he had a particular problem but hopefully “ next year ” he would not need a nurse. In thirty years’ time he might, when his is 55. The Health Board have provided him with a number of aides and facilities including wheelchairs and a mattress for his bedsores. He gets this through the local chemist and he is not charged. He has gone out since the accident (but not since the millennium because he has been more or less continuously in hospital). He would go out on Friday or Saturday night to a local pub and enjoys talking with his friends. They talk about football, motor vehicles, girls and sport. He keeps himself fit and goes to the gym and looks after his upper body. If he got a job he would require toilet facilities and access facilities but a job would do an enormous amount for his depression. He said he was well motivated regarding training and work. He hoped to get a HGV licence for continental driving as a break but did nothing before his accident about getting one.

62. The plaintiff’s mother, Helen McEneaney, said that in the first year since the plaintiff’s accident he had spent a large number of months in hospital and coped pretty well. Coming up to the anniversary he was on a high because he thought he would walk. He asked her to hold him up and was very depressed when he could not walk. He became angry and aggressive and they were worried about him when he was like that because, for example, on one occasion he took off to Kerry and they had to alert the Gardai. At times they had to try and keep the keys of the car away from him. He has had bad pressure sores during the last 18 months. His mental condition (depression) flares up about twice a year for maybe six weeks. She would notify St. Davnet’s Hospital when this happened. Typically it would happen in February and in the summer. Then he would get aggressive and angry, couldn’t sleep, couldn’t be reasoned with and would go up and down the hall at night in his wheelchair. In between these bouts, even when he was well, he could fall when transferring from the chair or in the shower and she would have to help him. There would always have to be somebody to look out for him. He has three sisters at home.

63. When she went away they arranged for her sister-in-law to be in the house but she did not tell Brendan because she likes to let him think that he is independent and not a burden. He can’t look after himself when he is ill or depressed and there must be always someone for him to ring or call. When he is ill his symptoms are high temperature and perspiration. There had to be two dryers working full-time in the house when he was ill, due to the sweating and washing. During the last one and a half years there were only two months when he was not in hospital. The times when he is “ well” are very few now. She said she thought his hope of working next September is not realistic. He is still very positive and they keep him like that but in the seven-odd years since his accident he has not got open work. The reality is employers would not want to employ him. If he has a bladder accident when away he rings and says he is coming home. He asked her to put in for a carer’s allowance so that she could give him £30 per week to finance a car for him.

64. She thought it would be better if he had a home further away from the house so that he could be more independent. She did not think he could look after himself given his record of illnesses. She was unable to give enough time to her youngest daughter who is aged fourteen because of looking after the plaintiff. She agreed that the plaintiff is independent minded and determined to make a go of whatever he can do and that he is happiest when he is at work. He enjoyed doing the courses in Dundalk and Newry and when he can be out of the house he feels better physically and mentally.

65. She thought he would require more than assistance for one hour in the morning and one hour in the evening. She leaves the Convene bags out for him and everything ready for him, gives him physiotherapy on his back in the morning and during the day, checks his medicine three times a day, cooks and does his laundry, collects medicine at the chemist (he can do this himself on occasion) and does the shopping. This could not be done in two single hours in the day. The plaintiff is not really aware of the things that are done for him. He can get depressed at any time. He did have a period of unemployment before his accident (but this was not quantified). His post-accident work was arranged by friends, James Connor in his garage but also in the other garage where he had a friend there as well. She believes he is at high risk of further pressure sores and that he is not a candidate for full employment.

66. Seamus McEneaney, the plaintiff’s father, said that the plaintiff was a good worker before his accident and very pleasant. He was into football in the Gaelic club and he encouraged him to do that. In the evening he would work at home on the car or on the farm for a neighbour and he liked driving a tractor. He was friendly and people knew him and liked him. He never stayed at home watching t.v. because he was anxious to make a few pounds. Regarding his aspiration to get a HGV licence he had told the plaintiff that this was a tough job and it was not a great job. Since his accident they had tried to get the keys of the car from him on five or six occasions. They encouraged him not to look back and to stay positive and he agreed that the plaintiff was better doing something even if it was only driving the car. He thought he would be better living further away from the house than a couple of hundred yards away but he could have a site for a house if he wanted it. He thought that he would probably have continued driving a van and doing repairs if he did not have his accident. He did not think his son was cut out to be a computer wizard but that garage work and driving was nearer to his heart.

67. Oral medical evidence was given by only two doctors, namely Dr. Patrick Murray from the Rehabilitation Institute and the plaintiff’s G.P., Dr. Clarke. Dr. Murray said that the plaintiff had tried very hard indeed to cope. It was almost impossible for a young man who was paralysed and doubly incontinent. He was doing reasonably well given his double problem. It was desirable that his attitude and optimism regarding employment should be kept alive but the reality in the market is a problem. It was not untypical that he hadn’t had a steady job since his accident. Given his mental illness it was also difficult for him and he would need to be watched and helped from the point of view of his mental health. His life expectancy was 39 years from now. He had no sexual sensation. He should be able to live on his own independently but it would be extremely difficult to look after himself from a wheelchair and he would need home help. When he is mentally ill his attitude is not under his control and when he is mentally ill he would need more help than at other times. He might not be able to get out of bed at these periods.

68. Dr. Clarke, the plaintiff’s G.P., said that he attended on the plaintiff four or five times a year since his accident. He had a urinary tract problem involving infection in the beginning until he was put on a Convene system. He would suffer from fevers, sweating, loss of appetite, nausea, weakness and couldn’t get in or out of bed. He had a thrombosis in his lower limbs which exposed him to the risk of clotting in his deep veins. He has been on Warferin since that happened at the beginning of last year (2000). He needs constant care because he would not recognise this condition at an early stage. A trained carer would be needed to recognise it. He would be on high risk for another episode of thrombosis. He has had pressure sores during the last year and a half and has been in hospital with them. He has been on oral antibiotics and had a major operation in Navan hospital where part of his pelvis and hip bone was removed due to deep infection from this pressure sore. He is at high risk for a recurrence of this. He is on a special mattress at present and even when he gets over the present infection episode he would need to be on this special mattress for probably two hours a day into the indefinite future. He could never see him spending a full day in a wheelchair and would be at high risk for bed sores or pressure sores. This had “huge implications ” regarding his holding down a job. If he tried a five or six hour a day job he would in a short time become incapable of working.

69. He had seen the plaintiff when he was depressed and then he would stay in bed would not eat or sleep or would not see other people and was withdrawn. He understood that he would be aggressive as well. He was stabilised after his 1995 depression but since then he has had manic episodes on and off in the years between 1996 and 2000. His mental health will require close management into the future involving observation and checking his medication. At present he is being closely monitored by his mother regarding his medication and the pressure sores. He is taking up to six different kinds of drugs daily at present. His work expectations are “totally unreasonable ” as being over optimistic. He is unemployable given his psychosis on top of paraplegia.

70. He admires and approves the attitude of the plaintiff’s parents in encouraging him to remain positive but on an ongoing basis into the future he will need intermittent attention throughout the day and night and should have somebody to call at all times for the periods of his depression amounting to some 16 weeks a year (2 episodes of about 8 weeks each). A low percentage of paraplegic patients ever return to meaningful employment and given his additional psychosis the position was worse for the plaintiff. It would not be a nurse’s role to supervise medication but rather the role of a carer. The plaintiff needs help with meals, showers, laundry, medication, checking his limbs, checking his psychological health, supervision to ensure that he moves from side to side frequently and regularly and help when he will fall moving from the chair to the bed or in the bathroom. It is not a question of 10 minutes’ checking 3 times a day or checking twice for an hour a day. It requires much more care and supervision than that. On occasion he will not take his tablets and needs very close supervision.

71. There is no problem with him driving a car so long as he is taking his medication in a compliant way. In Dr. Clarke’s opinion the plaintiff was not likely to make a huge improvement in the future. Regarding his attitude to work the plaintiff blows hot and cold in that he can be very determined to work one day and fed up with it another day. Since he has had the convene drain he has not had a recurrence of his bladder infection. There was some mention some years ago of the plaintiff taking illicit drugs but not in association with one of his more serious psychological episodes. Whilst his psychotic condition is independent of his injuries from his accident (there is no history of psychological illness in his family) he believes that in all likelihood it was precipitated by the accident.

72. Mr. Maloney County Surgeon, County Monaghan reported that the plaintiff was admitted to the County hospital at about 2 a.m on the 14th of February, 1994. He had a broken lower jaw bone without loss of teeth, fracture of the breastbone and some (apparently two) ribs, also a fractured dislocation of the dorsal spine at TV 5-6 with paraplegia below. He was transferred to the Mater hospital Dublin.

73. Mr. Martin Walsh confirms a fractured dislocation of the 5th/6th thoracic vertebrae with no level of spinal cord function below. There were fractures of the lamina of his 4th, 5th, 6th and 7th thoracic vertebrae and a metal implant was extended from his 1st to his 9th thoracic vertebrae in the Mater hospital. He had a respiratory tract infection while there and also a fracture to his left jaw. He later refers to “ old” fractures to his 6th and 9th ribs. He will be left with long term paraplegia and prone to further episodes of skin pressure. Mr. Mark Dolan reported that in February 2000 the plaintiff developed a pressure sore over the left greater trochanter leading to infection of his underlying femur and hip joint subsequently developing septic arthritis with a dislocation of the left hip. He had an operation in January 2001 involving removal of one quarter of the femur and of part of his hip because of the septic arthritis and osteomylitis of his left hip and proximal femur.

74. He will require constant review to monitor his paraplegia and the change in his seating arrangements. He could get a recurrence of the infection at any stage in the future and whilst he did not suffer pain because of his paraplegia he did suffer significant sweating which discomforted him significantly. He will have to have careful alteration of his wheelchair following this operation and will require in the future to be constantly vigilant; this applies to himself, his family and other personnel to ensure that he does not get any further ulcers in the areas at risk (around his buttocks and hips).

75. Mr. Ronald Grainger, Consultant Urologist, reported that the plaintiff was first put on self catheterisation but he developed infections and was subsequently started on convene drainage being an external urinary collection device. As a result of his accident he has not normal bladder control and has not normal sexual function. He will require a follow up visit by a urologist once a year.

76. Doctor Bereen Chief Psychiatrist of St. Brigids hospital Ardee says that after the accident the plaintiff suffered symptoms of depression more severe than those of tension and anxiety requiring medicine and psychotherapy. He had a further severe bout of psychiatric symptomatology in 1995 and three later admissions because of this. He reported that “other than the road traffic accident and the ensuing injuries and subsequent dysfunction no other precipitating factors are in evidence .” He is probably vulnerable to further psychiatric illness and the prognosis is guarded. He is now on long term medical therapy and he coped well with the trauma of having his left hip removed due to infection by treatment resistant bacteria. His symptomatology is recurrent on a regular basis and this is probably going to be so in the future. The prognosis continues to be guarded.

77. Dr. Owens Chief Psychiatrist of St. Davnetts hospital Monaghan reports that he examined the plaintiff in June 2001. He refers to his physical injuries, and says he presented with an episode of psychotic mania in February 1995. He was admitted to St. Davnett’s in 1995 and had three further admissions to St. Davnetts Hospital in that year. He was diagnosed as having a mixed affected psychosis with schizo affected disorder and psychotic mania and psychotic depression. He had a further episode of florid disturbance in January 1999. There is no family history of psychiatric illness. The plaintiff has a fairly typical bipolar mood disorder (manic depressive illness). After 1999 he apparently had a more recent further manic relapse. Bipolar mood disorder is essentially biological in origin and episodic in nature. One of the plaintiff’s relapses was thought to have been associated with the use of illicit drugs.

78. There is no specific relationship between paraplegia and bipolar mood disorder; it is more likely to be a separated unrelated illness. It is possible, however, that the emotional trauma of the accident and in particular the resulting lifelong disability could be a factor in inducing the illness in one already predisposed to this disorder. Further in the report Dr. Owens says that the treatment of mood disorder has been already and will likely continue to be compromised by his physical abnormality. The major life restriction due to his physical abnormality will likely have effects on his psychiatric rehabilitation. Mr. Whelehan for the plaintiff has submitted in this connection that even if I accept that the plaintiff’s depression is unrelated to and uncaused by his post accident injuries it is clear that the treatment of this depression has been compromised by these injuries so that the plaintiff is entitled to be compensated for the effect of his depression on his lifestyle and in particular during the serious bouts of his depression which on the evidence occur twice yearly.

79. The impression of the plaintiff’s history since his accident from this evidence is of a man who is highly motivated, outgoing and determined to get work suitable to himself and to do any training necessary in that regard. He has had the enormous difficulty of paraplegia coupled with depression and further debilitating lengthy episodes in hospital for thrombosis and bed sores. His family co-operate to keep his hopes up but realistically it must be said that his hopes of work and for his future are significantly over-optimistic and unrealistic.

80. From the evidence it was quite clear that the plaintiff himself would do almost anything to train himself or to get work and that he retains hope of a job from his friend James Connor which is quite unrealistic or in the open market which again is unrealistic. He has battled continually and repeatedly with ill health and disappointment and on the evidence this is likely to remain his lot for the rest of his life. Given this evidence and the evidence of the Doctors who gave evidence and whose reports were furnished my conclusion is that the plaintiff is not likely to work again in the open market or otherwise so as to achieve any kind of significant wage. In this connection there was a suggestion that he might after the case is over possibly acquire and operate his own garage business. His father seemed to me not to think this likely and given the plaintiff’s own academic ability (he left school aged fifteen with a mediocre Intermediate Certificate except in metal and wood work where he achieved an A and B respectively) and his serious health problems, I do not think it likely that this will happen. Accordingly the case must be approached on the basis that the plaintiff’s earning capacity has been eliminated by his injuries.

82. I do not think on the evidence to which I have referred that the plaintiff is likely to have worked as a intercontinental truck driver for any significant period. He was thinking about it, his father discouraged it, he did nothing about it before his accident. He was a very social man involved in his locality and interested in sports, socialising, cars and garages. He may indeed have tried the somewhat monastic life of a HGV intercontinental truck driver but I do not think he would have made a career of it in a way that would have had a significant impact on his earnings.

83. Rather I think that he would have continued either as a driver or a mechanic (in both cases working for himself outside of this job). Given that the evidence is that a car mechanic would today earn £337.60 (since the 1st of April, 2001) and a van driver up to £450 a week I think the likelihood is that the plaintiff would today be earning approximately £450 per week from all sources which would, of course, be subject to tax in the ordinary way.

85. Between July and September of this present year (2001) she assesses that he will require the attendance of a carer for 7 hours for 5 days each week of this ten week period and also for 7 hours on each Saturday and Sunday and she sets out the appropriate costings. She allows for holidays, safety audits, the payment of PRSI plus administration costs on the basis that an agency would charge these, the alternative being that the plaintiff as direct employer would be himself responsible for the payment of PAYE as well as PRSI. It is agreed between the parties that the plaintiff will incur an additional 2% on whatever is the appropriate sum for carers as the cost of additional increments to his house insurance premium given that these employees will be continually at work therein.

86. The foregoing assessment is based on the evidence that the plaintiff will require constant attendance while he is on the pressure relief mattress until next September. The evidence is that he will require to be on this mattress for 7 hours a day. Ms. Roche said that a carer would be a mature person who would be trained by a nurse and would be somebody who would be compatible with the plaintiff and professionally capable of coping with his change of moods, psychological states, medication regime and other health requirements. A carer should have the support of a nurse and would be required to manage the plaintiff. In her opinion it would not work for a carer simply to walk in for an hour in the morning and an hour in the evening because this would be too autocratic a regime; nobody could be got to carry out duties broken up like this and in any event the plaintiff needs more from the carer than simple monitoring and medicine management. He requires somebody to turn him over, structure his life and take care of his domestic needs.

87. Regarding the long term, ideally a carer would be somebody who would be flexible, who would socialise with the plaintiff perhaps for example taking him off to a match to get him out of himself. The Health Board are “staff starved” and under pressure and if he is not entitled to a medical card it is unlikely that they will be able to provide significant services for him. (This was later confirmed by Kathleen Curry representing the Public Health Nursing Division of the Cavan/Monaghan Health Board). The carer would be trained to check for deep vein thrombosis but it would be essential that a nurse would check the plaintiff on alternate days as a carer given the best of intentions would not be fully competent to do this without supervisory checking by a professional nurse as well. No nurse would provide this service simply over the telephone; it would have to be a physical examination of the patient. The programme she envisaged is proactive involving monitoring the plaintiff’s calf for thrombosis, checking his medication, ensuring that he moves and shifts position regularly in order to avoid pressure, indeed giving him a pep talk and also taking care of his nutrition. The regime must be proactive so that what has happened before regarding his bed sores could not be allowed to happen again.

88. There is no room for lack of professionalism from a well intentioned volunteer where there could be a personality clash; carers and nurses are trained how to cope with patients such as the plaintiff. Ms. Roche said that she had last seen the plaintiff on the 3rd of April, 2001 and it became clear that he would require more care attendant cover than she had thought prior to that. He now had physical, psychological and supervision requirements. She thought that he would need 6 or 7 hours’ care a day during his current phase (to next September) because he had not improved as much as she thought he would have. He has had good nutrition recently and that is helping him. She would not agree that 4 hours’ care would be sufficient during this period. He had looked so emaciated on an earlier occasion and now he looks well given the proper care.

89. If the carer becomes ill it would be necessary to have access to an agency who have to make out cards for the employees and ensure that all the documentation concerning the revenue commissioners is in order. She also said that a 2% additional house insurance premium would be required given that professional carers would be working in the house in the future. An 8% additional allowance for holidays is required and she prepared her schedule for the future costs taking all this into account and allowing for carers for 12 hours a day for 16 weeks in the year to cover the anticipated twice annual deep depression episodes of 8 weeks each, together with all night call care for the remaining 36 weeks with 4 hours care a day. In addition there should be an allowance for nursing supervision on alternate days throughout the year and an allowance for food for carers should also be included. There must be provision for administration costs on the basis that an agency is employed or alternatively an allowance for the plaintiff’s responsibility for PAYE and PRSI deductions. She said in evidence that one must pay carers for a minimum of 4 hours a day to retain their services given that they are trained professional carers. She anticipated that carers would be drawn from a six to ten mile radius but she had not allowed for travel expenses or additional petrol. She thought the carers would require a car as there was not an adequate bus service. The carers had to be in for the “ long haul ” and in fact the plaintiff would require a team of 2 or 3 individuals to provide the caring service.

90. I have already indicated that no countervailing evidence was called by the defendants to oppose the case made by the plaintiff with the exception of Mr. Eugene Daly the hydrogeologist already referred to. In these circumstances the court is left with the assessment of future care needs presented by the plaintiff’s witnesses which is not seriously challenged on behalf of the defendant. This is clearly a very large element of the claim for future expenses and whilst the court must scrutinise the evidence with care I do not think the absence of countervailing evidence should induce the court to be unduly sceptical or unreceptive in a way which it otherwise would not be.

91. With regard to Ms. Roche’s assessment of the plaintiff’s needs until the end of next September (totalling £5,933.49) my view is that this estimate is a little excessive given that the judgment in this case will only be available after one or two of the 10 weeks concerned have elapsed. On the other hand I have the distinct impression that the plaintiff’s mother, Helen McEneaney, has been working very hard and has been under pressure because the plaintiff has not had carers available to him and I think it is particularly desirable that her wish to be more available to her 14 year old daughter should be accommodated as soon as possible. I think a realistic figure in light of the evidence for this element of future care is £4,000.

92. By far the most significant part of Ms. Roche’s evidence relates to the future regime following next September 2001. She has provided for round the clock (day and night) care for 16 weeks on the basis that the plaintiff is likely in the future to have two eight week episodes of deep depression where he will be totally dependant on the care of others. He will require round the clock monitoring for the reasons already indicated during these periods.

93. Dr. Clarke said that during some of the equivalent episodes in the past the plaintiff was unable to get out of bed and was prone not to take his medication. Generally it should be recalled that Dr. Clarke’s evidence was that the plaintiff will require assistance with his meals, showering, laundry, clothes management, medication, checking for the onset of thrombosis, continual reminders to change position in his wheelchair, supervision for moving from his wheelchair and help to be available at all times in case he falls unexpectedly when moving from his wheelchair. These are the needs for the plaintiff when he is not in deep depression. In light of Dr. Clarke’s evidence and the evidence of Ms. Roche against the background of the general medical evidence in the case I do not think it is unreasonable for Ms. Roche to assess the plaintiff’s care needs at the level at which she has done and of course I must accept her cost estimates and evidence in relation to administration overheads and insurance since there is no evidence on these aspects to the contrary. Her evidence is that for the years following September, 2001 and annually thereafter the plaintiff under this head will incur an overall annual total cost of £51,088.73.

96. I turn now to consider the evidence upon which these submissions are based and note in so doing that, once again, no countervailing evidence was advanced on behalf of the defendant, although it was clear at one point that it was intended by one or other of the defendants to call a well known economist who attended in court, presumably to respond to the evidence of Mr. Moore McDowell who gave evidence for the plaintiff. However, such evidence was not in the event adduced. The evidence on these topics tendered on behalf of the plaintiff was furnished by Mr. Moore McDowell, senior lecturer in economics, University College, Dublin and Mr. Desmond Peelo, chartered accountant with experience as non executive director of a large fund managing company.

97. Mr. Moore McDowell, in evidence, described the principle of an annuity, and then said that once the rate of loss per annum has been determined (in “rate of loss ” he includes future annual costs) the key elements to be considered are firstly the length of time for which the plaintiff is expected to live (in this case 39 years) and secondly the relevant interest rate which is used to translate the expected loss into a capital sum equivalent. The real rate of interest (i.e. the nominal rate less the rate of inflation) had traditionally been taken by actuaries calculating these sums at 4%. This is referred to as the discount rate. To provide for future loss, therefore, it is necessary to predict future inflation or more relevantly the difference between future nominal yields and inflation. This is in general done by examining what the real interest rate had been in the past on the basis that these provide a good estimator of long term stable values for the real return on financial assets in the future. The economist expects nominal interest rates to adjust in the future as they have in the past to take account of future inflation. Any departure from expected rates in the future will only be temporary because nominal rates will be adjusted to take account of unexpected levels of inflation. Accordingly an examination of the level of real return on securities over a period of years in the past will enable conclusions to be made as to the future if and in so far as these remain reasonably constant or at least vary predictably.

98. Mr. McDowell said that the value of 4% which has been used in the past appears to be an arbitrary figure based on what was felt to be an appropriate value for the return a prudent person might expect after inflation on a relatively risk free portfolio in the early 1980’s. He then considered the speech in the House of Lords of Lord Lloyd of Berwick in Wells -v- Wells [1998] 1 AC 345 to the effect that an injured party should not be obliged to accept non negligible risk in the portfolio of assets in which the capital underpinning his annuity was to be invested. I have been invited by Mr. Whelehan SC for the plaintiff to adopt the principles set out in Wells -v- Wells and accordingly I will return to this at a later point. Sufficient for present purposes to note that Mr. McDowell has incorporated these principles into his evidence to the court. He notes that plaintiff investors require income certainty over the period of the annuity as they cannot, for example, postpone the choice of spending. Thus if the capital value and yield of the fund are variable a plaintiff investor may be required to eat into capital to maintain a constant revenue flow which would impact on future flows. In the case of Wells -v- Wells the House of Lords had available to it a risk free investment in the form of the Index Linked Government Securities issued by H. M. Government in the UK. (Irish plaintiffs cannot purchase these on the same basis as English plaintiffs because of uncertainties in the exchange rate). The return on these had been fairly constant at around 3% and accordingly the House of Lords applied a 3% discount rate in computing the award in that case. Prior to that the UK Courts had been operating on a conventional discount rate of 4.5%. In fact, the rates returned by the ILGS appear to be somewhat lower in recent times.

100. On the 15th March, 2001 the nominal redemption yield on Irish Government securities (now denominated in euros) was between 4.5% and 5.2%. The relevant inflation rate to use to calculate a reasonable value for the real rate of return is not now the current Irish CPI value but rather the expected Eurozone average inflation rates. He assumed that Eurozone inflation is likely to be in the range of 2% to 3% in the medium term, the conclusion being that the prospective real rate of return on Irish Government securities is in the range of 1.5 % to 3.2% with a mean value of 2.4%. The equivalent figure in respect of German Government bonds is 2.3% and in the case of US Government bonds 2.4%. These figures give an indication of what is implied for real rates of return on the basis of current nominal rates and expectations as to inflation.

101. It is also useful to examine what has happened in the past, to see what was actually earned by way of real yield on investments in “ risk free ” assets on the basis that this is an indicator of what may well happen in the future. He provided the court with a table setting out nine different types of fixed interest securities over different time periods ranging from 1926 to 1998, which show that a value of 2% for the real rate of interest is conservatively high. In fact only two, UK corporates (low risk) (1926-1983) and UK long dated gilts (1945-1998) attained 2% with five yielding between 0.4 and 0.7, the remaining two yielding 1 and 1.6 respectively. He concluded that in the context of a long term compensation package assets in long term gilts should provide both the required degree of certainty and produce an income stream valued at approximately 2% which was observed for the UK long term gilt holdings to which he referred.

102. In this country (with the possible exception of the years 1979 to 1982 during which real rates of return were high reflecting higher risk due to exchange rate volatility) long term real returns on gilts have not been near the 4% level favoured by actuaries and adopted by the Irish Courts. From 1993 onwards Irish interest rates fell sharply, the current prospective real rate being in the order of 1% or less but it is likely to rise to around 2% over the next year as inflation falls and nominal rates rise. Mr. McDowell’s conclusion is that if the court accepts the principle adopted by the House of Lords in Wells -v- Wells that a plaintiff’s damages should be calculated on the basis of minimum risk exposure then the appropriate real rate should be the real rate of return on long term government debt paper in respect of which historical evidence and the generality of economics opinion indicates a real rate of around 2%.

103. Mr. McDowell said it is well known that the cost of health care services has tended to rise more rapidly than most other commodities of service in the representative bundle used to calculate the inflation rate by means of the CPI. In Ireland he said the CPI rose by approximately 65% between 1983 and 2000, an annual average rate of increase in the overall price level of approximately 3%. The medical care component rose by about 160%, an annual average rate of increase of nearly 6%. There were several reasons for this. Firstly, health care is labour intensive thereby reducing the degree to which productivity increases can offset rising input costs. Secondly, health care services are characterised by intense technical change which is associated with rising costs of research and development. Thirdly, there are specific problems in determining the level, intensity and quality of health care arising from the manner from which it is generally financed: he said “free” or insurance financed health care has endemic difficulties arising from defective incentives facing both service suppliers and service users. Finally, he said that the extension in scope and depth of the threat of litigation has resulted in both rising insurance costs and increased costs associated with the delivery of care on a basis designed to minimise exposure to insurance claims.

104. He said that as a result a consumption pattern which is heavily biased towards the use of health care services will experience a higher inflation rate than a statistically “normal” pattern. He said that if it is accepted that medical cost inflation could exceed general inflation by about 3% (this he says was borne out by the rate of increase in VHI premium charges) the appropriate discount rate for calculating a capital sum in the context of future care provision would approach 0. He concluded by saying this consideration reinforces the proposition that the discount rate adopted to arrive at a capital sum should be much lower than the 4% figure which has been customary in Ireland for over a decade. In his opinion a court would be well advised to consider the degree to which future medical care costs are the basis for which the award is to be made. He conceded it would be asking perhaps too much to ask a court to accept a shift from 4% to 0%, however, he submitted that all these considerations point towards the court choosing a lower rather than an upper value for the appropriate discount rate in implementing the principles enunciated in Wells -v- Wells . The figure of 2% in his view was far from unreasonable.

106. Evidence as to the discount rate was also given by Mr. Desmond Peelo. He presented a report, the purpose of which was to challenge the assumption that a 4% real rate of return was appropriate. He explained the annuity approach and with reference to the usage of a 4% per annum real rate of return having had its origins in 1985 pointed out that a comparison of then deposit rates and inflation does show that a real rate of return of 4% per annum could be earned from risk averse investments at that time. Accordingly in order to attain a real rate of return of 4% in the mid 1980’s a plaintiff did not have to invest in equities.

107. Whilst he acknowledged that under the Finance Act of 1990 permanently incapacitated plaintiffs were designated free of income tax, capital gains are not exempt in their case from capital gains tax except for gilts. Until recently the accepted view was that trustee type investments for incapacitated persons should not involve risk. The Wards of Court office, for example, was bound by legislation to invest only in gilts and bank or building society deposits with the addition of the AIB and Bank of Ireland. This policy was relaxed by Order in 1998 allowing the office freedom to invest in equities subject to certain conditions.

108. The relevant parameters (being investment conditions, interest rates, inflation and related circumstances) have changed markedly in recent times compared with those prevalent in the mid 1980’s. In recent times those with large awards to invest must receive professional investment advice given that many professional persons such as solicitors, accountants and stockbrokers will not now give advice in trustee type investment situations. This advice together with a fee for fund management (involved in the pooling necessitated by the required diversification needed to protect a plaintiff’s lump sum from the high degree of risk involved in concentrating an investment into a small number of shares) would involve a cost of 1% per annum on a fund of up to say £2.5 million and perhaps negotiable above that figure. This implies that the traditional 4% real rate assumed should be reduced by as much as 1% (depending on the proportion invested in equities) to take account of such fees.

109. Because of Ireland’s participation in the Eurozone interest rates are anticipated to remain low by comparison with historical rates. Large deposits are currently attracting rates of about 4%. Average inflation over the six years to 1999 was 2.3%, and while current higher rates (5.5% to 6%) are expected to decline, the achievement of a real rate of return of 4% in current circumstances will inevitably involve an investment in equities. The substantial growth in Irish equities since 1992 may not be repeated given that two relevant factors (namely lower interest rates and lower inflation both of which mean higher stock valuations) may have run their course and not be repeated. The downturn and lack of growth in values in 1999 and 2000 illustrates this. Again gains such as happened since 1999 may actually have been brought about by currency fluctuations (for example the downward trend in the euro exchanged against Sterling and the US dollar). The investment of a substantial proportion of available resources in equities may be suitable for a prudent long term investor but assuming the principles adopted by the House of Lords in Wells -v- Wells this would not be true for a plaintiff investor.

110. In the case of a plaintiff investor if there were a substantial fall in equities during the first 5 or so years during which the plaintiff will have to call on part of his capital to meet his needs in a depressed market then there is no chance of recovery because the money is spent. Therefore the plaintiff’s portfolio should be managed in such a way that he would not have to call on equities during an initial period of 5 years on the assumption that five years would be sufficient for the plaintiff to “ ride out ” any down turn in the equity market. Accordingly a plaintiff requires security of funding for his needs for at least an initial period of 5 years without appreciable risk of loss to the capital draw down in that period. This would entail holding a proportion of the available funds in non risk assets to cover this period.

111. The longer a plaintiff’s life expectancy the greater is the proportion of the fund that could reasonably be invested in equities. In the case of a plaintiff investor with a life expectancy of 30 years it might be reasonable to invest 70% of the fund in equities. (In the present case the plaintiff’s life expectancy is 39 years and given that no advisor appears to suggest a higher proportion than 70% investment in equities this ratio presumably applies to the plaintiff as well). During the last 10 years of any life expectancy period prudence would demand growing certainty as to available capital with the result that the equity proportion during the 10th to the 6th last years should be gradually reduced (by 20% per annum) and during the last 5 years of a plaintiff investor’s life expectancy the investments should comprise only non-equity investment.

112. Mr. Peelo then carried out a calculation to show that in the case of an investment over 25 years, given that 70% of the fund only would be invested be in equities and given an annual 1% management charge in respect of this portion of the investment and allowing for capital gains taxes of 20% and for the fact that during the last 10 year period the equities will be reduced in the manner already described the annual nominal return on the equities portion of the investment is required to be 12.1% to achieve an overall real rate of return of 4%. He conceded that this is not a precise calculation (and I assume that in the case of a longer term of life expectancy namely 39 years rather than the 25 in Mr. Peelo’s example the figure of 12.1% would be somewhat reduced). Mr. Peelo noted that based on historical experience where the return on equities were in the order of 5.7% to 6.5% and even allowing for expected higher returns given lower inflation in the future these returns are unlikely to exceed 7% to 8%, that is, well short of the 12.1% already referred to. This shortfall (in the order of 4%) implies that the actuarial discount rate should be 2.5% rather than the existing conventional 4%.

113. Before I turn to consider the legal principles applicable it is noteworthy that both expert witnesses adopted the approach of the House of Lords in Wells -v- Wells to the effect that a plaintiff investor should not be exposed to non negligible risk. In the case of Mr. McDowell he concluded that a figure of 2% is the appropriate one in the case of non medical related future loss with something like 0% in the case of medical future loss. Mr. Peelo speaking as an investment advisor suggested a figure of 2.5% as the appropriate one but in his case it is to be noted that he contemplates the Plaintiff entrusting a proportion of his award to the equities market.

114. It is remarkable that the only Irish case dealing with the appropriate multiplier (as it is called) is the decision of Hamilton J. (as he then was) delivering the High Court Jugdment in Cooke -v- Walsh [1983] ILRM 429 where he concluded that the appropriate calculation should be based on a real interest yield of 2.5% (see page 439). This decision was delivered in January 1983 at a time of high inflation and high yields but the plaintiff was clearly going to be made a ward of court and this is something which Hamilton J. took into account. On appeal this rate was not disturbed in the Supreme Court (Supreme Court 16th March, 1984) although there was a suggestion that in future cases a different rate might be justified. It is interesting to note that McCarthy J. observed that:

“If the learned trial Judge had based his assessment upon calculation of a real interest rate of 2 per cent rather than 2.5 per cent, I, for one, would not find possible to disagree with the calculation . In present days of high interest and continuing inflation, one is inclined to assume that high interest rates-interest rates running above 4/5 per cent and, indeed, up as far as 20 per cent - are, in some way, the norm. Such is not the case. The evidence given at the trial bears this out and one’s casual knowledge of the interest rates reflected in the older form of government borrowings (2-2½ per cent) lends ample support to this view. Having regard to the nature of the evidence called at the trial, it seems difficult to foresee any other view than that to which the Judge came; it may be that there would be compelling evidence in some other case to the contrary-pending it I would uphold the method of calculation adopted by the learned trial Judge.”

115. There is a clear and long tradition of Irish authority directing the Courts to accept and apply actuarial evidence in assessing future losses in these cases and as Griffin J. pointed out in Cooke -v- Walsh the rate of interest taken is of considerable importance as the multiplier (as it is called) in the case of 2.5% is substantially in excess of that in respect of 5%. It is surprising to find that the only explicit Irish authority on the method of assessment of the discount rate is the one to which I have referred.

The plaintiffs are not in the same happy position. They are not ordinary investors in the sense that they can wait for long term recovery, remembering that it was not until 1989 that equity prices regained their old pre-1972 level in real terms. For they need the income, and a portion of their capital, every year to meet their current cost of care. A plaintiff who invested the whole of his award in equities in 1972 would have found that their real value had fallen by 41% in 1973 and by a further 62% in 1974. The real value of the income on his equities had also fallen.

So it does not follow that a prudent investment for the ordinary investor is a prudent investment for the plaintiffs. Equities may well prove the best long- term investment. But their volatility over the short term creates a serious risk. This risk was well understood by the experts. Indeed Mr. Coonan conceded that if you are investing so as to meet a plaintiff’s needs over a period of five years, or even 10 years, it would be foolish to invest in equities. But that concession, properly made as it was on the evidence, is fatal to the defendant’s case. For, as Mr. Purchas pointed out in reply, every long period starts with a short period. If there is a substantial fall in equities in the first five or 10 years, during which the plaintiff will have had to call on part of his capital to meet his needs, and will have had to realise that part of his capital in a depressed market, the depleted fund may never recover.

While therefore I agree with the Court of Appeal that, in calculating the lump sum, courts are entitled to assume that the plaintiff will behave prudently, I do not agree that what is prudent for the ordinary investor is necessarily prudent for the plaintiff. Indeed the opposite may be the case. What the prudent plaintiff needs is an investment which will bring him the income he requires without the risks inherent in the equity market; which brings us back to the ILGS.”

“(2) Although this will result in a heavier burden on these defendants, and, if the principle is applied across the board, on the insurance industry in general, I can see nothing unjust. It is true that insurance premiums may have been fixed on the basis of the 4 to 5 % discount rate indicated in Cookson -v- Knowles [1978] 2 ALL ER 604, [1979] AC 556 and the earlier authorities. But this was only because there was then no way better way of allowing for future inflation. The objective was always the same. No doubt insurance premiums will have to increase in order to take account of the new lower rate of discount. Whether this is something which the country can afford is not a subject on which your Lordships were addressed. So we are not in a position to form any view as to the wider consequences.

120. I find the foregoing reasoning compelling. On the evidence there is no equivalent in this country of the ILGS in the U.K. Accordingly I must approach the assessment of the sum required to produce the appropriate annuity for the plaintiff over the next 39 years on the basis that it will yield a reasonably secure and reliable stream of annual funding (comprising income and capital) and to that end that the investment of the award shall be as risk free as reasonably possible in the absence of an equivalent of the ILGS in the U.K.

121. Leaving aside medical related costs Mr. McDowell’s evidence is that the actuarial discount should be 2%. Mr. Peelo suggests a figure of 2.5% accepting a prudent element of equities investment. Given the conclusions that I am about to indicate in relation to medical inflation I consider that the appropriate rate for general calculation purposes (that is excepting medical and medical related future costs) should be 2.5%.

122. With regard to the evidence in relation to future medical and other care costs there is uncontroverted evidence that the annual average rate of increase of these costs is nearly 6% that is 3% in excess of the general annual average rate of increase over the period since Cooke -v- Walsh was decided. Reasons are given by Mr. McDowell as to why this should continue to be the case. There is no countervailing evidence in the present case. Accordingly I requested the actuaries to prepare figures upon the basis that the medical related future costs would continue to increase over the plaintiff’s expected lifetime at a rate of 3% over general inflation. It seems to me that upon the evidence in the present case this is the appropriate rate in regard to those future costs.

“What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation. In assessing such a sum the objective must be to determine a figure which is fair and reasonable. To this end, it seems to me, that some regard should be had to the ordinary living standards in the country, to the general level of incomes, and to the things upon which the plaintiff might reasonably be expected to spend money. It may be that in addition, on the facts of a particular case, other matters may arise for consideration in assessing what, in the circumstances, should be considered as reasonable. However, a yardstick of a reasonable nature must be applied if reality is to be retained in the assessment of such compensation...In my view, unless there are particular circumstances which suggest otherwise, general damages, in a case of this nature, should not exceed a sum in the region of £150,000. I express that view, having regard to contemporary standards and money values and I am conscious that there may be changes and alterations in the future, as there have been in the past.”

124. The plaintiff tendered the evidence of Mr. Moore McDowell to show what the equivalent figure to Chief Justice O’Higgins’ £150,000 would be in today’s money. Mr. Keane S.C. for the second defendant objected to this evidence upon the basis firstly that it would amount to telling the court how much general damages to award and secondly would be in breach of a convention that Counsel do not make such suggestions to the court. I resisted that objection on the basis that I did not think that Mr. McDowell was going to tell me how much to award but rather what Mr. Justice O’Higgins’ figure of £150,000 would have been in today’s circumstances and that accordingly no convention would be breached. I further said that I thought that I was bound to apply the Supreme Court ruling in Sinnott -v- Quinnsworth which clearly implied that if I was made aware of changes and alterations in living standards and money values I was obliged to take these into account. Indeed I consider this approach consistent with the approach adopted by Morris P., albeit in different circumstances, in Kealy -v- Minister for Health [1999] 2 I.R. 456 at p. 459 where he said:-

126. Firstly, to maintain the level of general damages at the nominal value indicated by the Supreme Court in 1984 would be to reduce it substantially in real terms having regard to inflation measured by reference to the consumer price index. The equivalent figure for the year 2000 using the CPI would be in the region of £236,000. A somewhat higher figure is produced by reference to the GDB deflator, a second measure of inflation, which includes a wider range of goods than those in CPI. Any measure of inflation can be open to criticism but in particular the CPI is criticised for the manner in which it treats housing costs. Secondly, in relation to the standard of living to which the Chief Justice referred in Sinnott -v- Quinnsworth , in the absence of any specific criterion, Mr. McDowell suggested several ways in which these changes can be measured. If a representative household’s standard of living is the appropriate comparator then average household consumption could be considered. If it is income level per head average industrial earnings could be used. If the overall wealth of society is to be measured reference could be made to the GNP per head. Mr. McDowell set out the relevant figures in a table which shows that the GNP per head increased by a multiple of 3.3 to 1999, consumption per head increased by 3.24 and average industrial earnings by 1.93. These figures suggest that broadly speaking wealth or living standards measured in this way increased by a factor of 3 over the intervening period. Having regard to the increase suggested by the inflation figure (at some £235,000) and these figures (at something approaching £600,000) and given the fact that the Supreme Court was indicating a sum in the region of £150,000 it seems to me that a reasonable equivalent to the £150,00 for general damages in Sinnott -v- Quinnsworth Ltd . in today’s money would be £300,000.

127. If I err in this figure I consider I do so on the side of conservatism, especially if I compare the income which £150,000 would have yielded in June 1984 (at say 10%) with that which £300,000 would yield (at 4%) some seventeen years later: I make this observation because O’Higgins C.J. had particular regard to the income which an award would yield in Sinnott -v- Quinnsworth .

128. I cannot accept, however, that a paraplegic no matter how aware he is of his condition or how long his life expectancy (and granted that the plaintiff’s condition is extremely distressing to himself and his family, that he will be prone to disappointment, lack of fulfilment, depression and most likely further physical ailments together with the enormous loss of amenity and enjoyment of life that applies to any paraplegic) is in the same category as a quadriplegic. In the circumstances of the present case I would assess general damages having regard to the very large sums that must be awarded to the plaintiff under the headings of ascertainable loss at £75,000 for pain and suffering to date and £125,000 for pain and suffering in the future being amounts in both cases very considerably less than I would have assessed had I been considering them on their own.

129. The Supreme Court in Reddy -v- Bates [1984] ILRM 197 directed in that case that in calculating future loss of earnings account should be taken of the fact that at the time of assessment of the award there was a high rate of unemployment not only in Ireland but in Great Britain and in most member states of the E.E.C. (as it then was). The numbers of redundancies and closures of firms led to the conclusion that there was no longer any safe much less guaranteed employment. That was a fact of which juries (and now judges) should be required to take into account in assessing future loss of earnings in any given case “ but the matter should be canvassed in evidence and in argument” - as stated by Griffin J. in Reddy -v- Bates at p. 201.

130. No substantial argument was advanced in relation to the possibility that the plaintiff might have been unable in the future to procure gainful employment: rather the argument focussed on whether he had established or not that he was likely to make a career as a HGV driver. On this aspect I hold with the Defendant. I can see no basis, therefore, for reducing the figure which I have allowed for future loss of earnings.

131. In this context, however, it does seem to me that in an appropriate case a reduction might be allowed under the general principles established in Reddy -v- Bates in respect of the cost of future care or other future outlay always assuming that evidence and/or argument is advanced in that regard. In the present case no evidence apart from that tendered on behalf of the plaintiff by Ms. Noreen Roche was advanced on the plaintiff’s future care needs nor was any substantial argument made in relation to her figures and evidence. Furthermore there was no evidence, as I have indicated, in relation to Mr. McDowell’s evidence to say that the costs of future medical care were likely to rise at a rate of 3% in excess of the general rate of inflation. In these circumstances whilst the amount for future care is very significant indeed it seems to me that I must act on the evidence which I have accepted. The only mitigating impact of this larger element of the award from the point of view of the defendant arises in the context of the principles established by the Supreme Court in Cooke -v Walsh (Unreported, Supreme Court, 16th March, 1984) whereby the Court will assess general damages by reference to the proposed sub awards in relation to ascertainable loss.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McEneaney v. Monaghan County Council [2001] IEHC 114 (26th July, 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/114.html Cite as: [2001] IEHC 114

High Court of Ireland Decisions

McEneaney v. Monaghan County Council [2001] IEHC 114 (26th July, 2001)