Future pain and suffering damages increased for chronic respiratory condition; past anxiety damages dismissed.

THE SUPREME COURT

No 251/00

Denham J.

Hardiman J.

Fennelly J.

BETWEEN

ANDREA NEWELL (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND MARIE NEWELL

Plaintiff/Appellant

and

Bus Eireann/IRISH BUS

Defendant/Respondent

JUDGMENT of the Court delivered the 10th day of July, 2001 by FENNELLY J.

This is an appeal by the plaintiff against the parts of the assessment of general damages awarded to her by Johnson J, concerning

(a) Pain and suffering to date of trial £30,000

(b) Pain and suffering in the future £25,000

The plaintiff complains that these figures are too low and should be increased.

The plaintiff was born on 22nd January 1986. In October 1993, when she was seven, she was on a school bus run by the defendant

and was on her way to school. The bus filled with black smoke apparently as a result of an engine fire, though the bus did not catch

fire. The plaintiff breathed in a lot of smoke. She started to cough because it was coming down her throat. Even after leaving the

bus, she felt in shock. She was distressed and crying, her throat was sore with coughing and her chest felt tight. She was on the bus

for some minutes before it was cleared of all its passengers.

For some time after the accident, the plaintiff suffered nightmares about the incident. She would wake up in distress, shaking,

sweating and with her heart pounding. There were a few incidents of sleepwalking. She became very nervous, clung to her mother

and did not want to go to school. She had abdominal pains. She also recommenced bed-wetting, from which she had suffered

previously as a result of certain distressing incidents, but from which she had recovered.

The bed-wetting occurred almost every night with occasional daytime incidents for a year and continued for several years but

eventually resolved itself, though with occasional persistent problems of loss of control, when she was ten or eleven. All of these

symptoms were explained by a psychiatrist, who gave evidence, as being the result of an acute anxiety disorder. They were resolved

to a large extent after some five months, but some symptoms persisted even up to the time of the hearing in the High Court. The

psychiatrist thought that her continuing psychological problems were more associated with the respiratory problems to which I now

turn.

The most serious aspect of the plaintiff’s injuries was that she developed respiratory difficulties. At first, however, it was assumed

that she simply had a bad cold - she coughed up a lot of mucus - and she was put on antibiotics by the family doctor several times

over a period of months. After more than a year, she was referred to a specialist who diagnosed a condition akin to asthma, called

reactive airways dysfunction syndrome. She had signs of airway inflammation with gas trapped behind closed airways. Such long-term

damage can be due to brief exposure to noxious fumes. The symptoms are, as in asthma, breathlessness and wheezing. They are

accompanied by a lot of coughing, especially in winter. While previously the plaintiff was the fastest runner in her class at school, she

found that she was no longer able to run without distress and wheezing. Eventually she lost interest. She was fond of dogs, but is

now conscious that close proximity to animals risks setting off her wheezing. Her condition has varied up and down over the years.

Periods of improvement have been followed by relapse. The expert opinion suggests that her chances of recovery are somewhat less,

forty per cent, than a normal asthma sufferer, where the chances are said to be about fifty per cent. The age of fourteen was said

to be a sort of watershed. She was just over fourteen at the time of the High Court hearing. Her ongoing drug regime involves taking

inhaled steroids at relatively high dosages morning and evening, with several daily applications of a reliever inhaler. In winter she

needs an antibiotic cover.

In considering the appeal against the two parts of the assessment of damages by the learned trial judge, I think it is also necessary

to separate so far as possible the cluster of symptoms described by the psychiatrist as acute anxiety disorder. The general burthen of

the evidence and the finding of the learned trial judge is that these symptoms had largely, though not totally, resolved within the first

six months, though the bed-wetting problem persisted for three or four years. The continuing symptoms of stress are more, though

perhaps not entirely, associated with the respiratory problem, which has both a past and future element.

On the basis that the sum of £30,000 in question is largely for the consequences of the acute anxiety disorder, I consider the

assessment of damages for pain and suffering to date to reasonably compensate the plaintiff for the undoubted distress which she

suffered over a period of several years but which were diminishing during that time. It certainly has not been shown to be in error to

the standard that would be required before this Court would disturb it. Therefore, I would dismiss the appeal insofar as it concerns

the sum of £30,000 awarded under that heading.

On the other hand, I think the sum of £25,000 allowed for future pain and suffering falls significantly short of adequate compensation

for the fact that the plaintiff has effectively acquired a condition akin to asthma. It is true that the evidence establishes that the

symptoms of the condition are effectively controlled. That result, however, is achieved by a notably comprehensive programme of

drug treatment. The need for the plaintiff to take a reliever inhaler several times daily as well as before exercise is indicative of the

active state of her condition. It appears to be common case that the chances of the plaintiff’s recovering from this condition are

assessed at rather less than fifty per cent, though such a prognosis is necessarily more in the nature of a conjecture than any real

evaluation of probability. The correct approach must be to take this element into account as amounting to a very real possibility that

the plaintiff will continue to suffer from this condition all her life. An obvious consequence is that she will, on that hypothesis, have to

follow a heavy daily drugs programme. Apart from the inconvenience of that course, it cannot be entirely devoid of risk of side

effects. The plaintiff has also lost a significant element of enjoyment of life in no longer being able to pursue athletic pursuits. Her

innate enjoyment of animals has been curtailed. There is some restriction of her employment possibilities consequent on the need to

avoid inappropriate environments.

I would allow the appeal in this respect and increase the figure for future pain and suffering to £50,000.