Supreme Court dismisses appeal against High Court's damages assessment for firefighter's soft tissue injury case.

THE SUPREME COURT

S.C. No. 303 of 2004

DENHAM J.

GEOGHEGAN J.

FENNELLY J.

BETWEEN

DEREK CURLEY

PLAINTIFF/RESPONDENT

AND

THE RIGHT HONOURABLE LORD MAYOR ALDERMEN AND BURGESSESS OF DUBLIN

DEFENDANT/APPELLANT

Judgment delivered on the 26th day of November, 2004 by Denham J.

1. This is an appeal by the Lord Mayor, Aldermen and Burgesses of the City of Dublin, now Dublin City Council, the

defendant/appellant, hereinafter referred to as the appellant, from the assessment of damages by the High Court (Gilligan J.) on

the 9th July, 2004, in the sum of €350,461.72. The appellant seeks an alternative assessment or an order directing a re-trial in

the High Court on the issue of damages.

2. Derek Curley, the plaintiff/respondent, hereinafter referred to as the plaintiff, was a firefighter by occupation and was born

on the 6th May, 1960. He is married with three children. He was employed by the appellant and had eighteen years of service at

the time when he was involved in the accident the subject matter of these proceedings which occurred on the 16th January,

1998.

3. The circumstances of the accident were that the plaintiff was a passenger on a bench seat immediately behind the driver in

a fire tender which, while responding to an emergency situation, was involved in a collision with two parked cars at traffic lights

at the junction of the Naas Road and Killeen Road, Clondalkin, Dublin.

4. The case was one of assessment, with a plea of contributory negligence.

5. The High Court assessed damages as follows:

“1. General Damages €75,000.00

2. Special Damages to date €21,000.72

3. Loss of earnings to date of retirement €22,000.00

4. Loss of earnings from date of retirement to date €25,000.00

5. Future loss of earnings €142,500.00

6. Future loss of pension entitlement €47,285.00

7. Future loss of gratuity entitlement €17,676.00

Accordingly IT IS ORDERED AND ADJUDGED that the plaintiff do recover from the Defendant the sum of €350,461.72

together with the costs of the Action when taxed and ascertained.”

6. The appellant filed a notice of appeal setting out fifteen grounds of appeal. The appellant submitted that the trial judge erred

in assessing damages, and that the assessment was excessive and against the weight of the evidence. Further it was

submitted that the High Court erred in its application of s.34 of the Civil Liability Act 1961. The nub of the appeal was that the

High Court erred in the assessment of future pain and suffering and in the assessment of future loss of earnings, the latter

being the main issue. Counsel for the appellant submitted that the key issues were the loss of pension and loss of gratuity, that

the cessation of the employment was not connected to the accident, and that the plaintiff had walked out of the post. Counsel

for the appellant stressed that the High Court having accepted the medical evidence of Mr. Sheehan and Professor Clery rather

than the medical experts called on behalf of the plaintiff, there was an inherent contradiction in the High Court then awarding

the future damages as it did, in light of their evidence.

7. The appellant did not dispute the primary findings of fact of the High Court. Issue was taken with the inferences that the

High Court took from them. In particular, having accepted all the medical evidence on behalf of the appellant (in preference to

that of the plaintiff’s orthopaedic surgeon, Mr. Bruce Bough) namely that the plaintiff had suffered relatively minor soft tissue

injuries of the neck and left shoulder in respect of which three years post-accident there were no objective signs of injury or

disability; the learned trial judge ought not to have awarded any substantial sum in respect of future pain and suffering and

ought not to have awarded any sum in respect of continuing or future loss of earnings on the basis that the plaintiff’s loss of

employment as a firefighter was not caused by reason of any injuries sustained in the accident the subject matter of these

proceedings; that the root cause of the acceptance by the learned trial judge of the plaintiff’s claim for damages for future pain

and suffering and employment was the disinclination of the learned trial judge to reject the plaintiff’s claim in that regard

entirely, notwithstanding his misgivings concerning the plaintiff’s own testimony; the preferred evidence of Professor Clery and

Mr. James Sheehan, and the circumstances leading to his loss of employment. It was submitted that on any objective

assessment of the facts as found, it must be inferred that as of January, 2001 (three years post-accident) the plaintiff was as

fit as he needed to be to maintain his position as a firefighter indefinitely and that insofar as the plaintiff was asserting

otherwise this was not supported by any credible evidence. Counsel brought the court to many passages of the evidence in the

trial and to the wording of the judgment. The issue of exaggeration by the plaintiff was also raised and reference made to

Shelly-Morris v. Bus Átha Cliath [2003] 1 I.R. 232. It was also submitted that the plaintiff had not made out a case that his

employment was terminated as a result of injuries sustained in the accident and the issue of mitigation was debated, as was

that of contributory negligence. Counsel also raised the actuarial evidence and the conclusion reached by the learned trial

judge.

8. The written and oral submissions were detailed and I have considered them carefully. I have also read closely the reserved

judgment of the High Court.

9. This case raises one of the most difficult areas for decision in personal injuries actions – that of soft tissue injuries. Soft

tissue injuries often do not give rise to proofs such as are available when, for example, bones are broken. There are usually no

useful x-rays or scans. There is no setting of bones and plastering of limbs.

10. The doctors and medical staff attending on such injuries rely on the symptoms as stated by the patient. Similarly, when

medical reports are written of such injuries there is more relating of symptoms than of objective factors such as x-rays etc.

11. It is a difficult area for assessment by doctors. As a consequence of the type of injury, it is also a difficult area for legal

assessment. However, just because difficulties arise does not mean that they cannot be addressed. It means that a court will

take care in considering the issues, especially when it is pleaded that there is no credibility, there is exaggeration, or in other

ways the character of a plaintiff is under review.

12. The trial judge in this case, being very experienced in the area, brought to the case time and analysis. The case was before

the High Court for eight days. The learned High Court judge heard evidence from the plaintiff, including cross-examination. The

learned High Court judge saw the plaintiff’s demeanour when giving evidence and when sitting in court during the hearing.

13. Critical evidence was given as to the plaintiff’s future pain and suffering and consequential loss which was contradictory. On

this pivotal evidence the High Court held with the evidence offered on behalf of the appellant stating:

“Insofar as the plaintiff’s physical injuries are concerned it appears to me that the essential difference between Mr. Bough

and Professor Clery and Mr. Sheehan is one of emphasis and prognosis but insofar as there is conflict on the evidence I

prefer the views as expressed by Mr. Sheehan and Professor Clery. I take the view that Mr. Bough’s future prognosis is

much too pessimistic and I prefer the view of Mr. Sheehan that in the future the plaintiff’s situation could very well ease

up and while he may be left with some degree of intermittent parasthesia this could be relatively well controlled.”

14. Thus the learned trial judge decided that the evidence proffered on behalf of the plaintiff was too pessimistic, that in the

future the plaintiff’s situation could well ease up, and that while he may be left with some degree of parasthesia this could be

relatively well controlled.

15. There is no question of a determination that the plaintiff was lying or exaggerating. The learned trial judge finds a degree of

injury and loss into the future.

16. The judge came to an overall view on the evidence as follows:

“The overall view which I take on the evidence adduced before me is that the plaintiff suffered a relatively mild whiplash

injury superimposed on pre-existing degenerative changes and that he suffered a degree of nerve root irritation. He also

suffered a post traumatic stress reaction to the circumstances of the accident, from which he recovered within a few

months, and he is left with a mild degree of depression most of which is related to his perceived inability to carry out his

duties as a firefighter, which situation clearly was not helped by his being retired on grounds of ill health in December

2001. A combination of the physical and psychological injuries appear to have brought about a situation where the

plaintiff had difficulty in carrying out his full duties at work and he received extensive medical treatment and while there is

a difference of opinion as regards the nature of the treatment afforded to the plaintiff, I take the view that the treatment

as performed by Mr. Bough for the plaintiff and the treatment as advised by him was done so by him using his best

professional judgement. In this regard I prefer the views as expressed by Professor Clery and Mr. Sheehan and in all the

circumstances I take the view that any future treatment will be minimal and insofar as a claim is made for future

treatment I propose to build in a small allowance for this treatment into the figure for future general damages. The basis

upon which I do so is that the plaintiff may require some level of physiotherapy in the immediate future and analgesia from

time to time. My overall conclusion is that this plaintiff suffered a mild whiplash injury and minor psychological trauma. I

appreciate that the plaintiff is certified as 40% disabled by the Department of Social Welfare but I take the view that I

have to decide this case on the evidence adduced before me. I take the view that Mr. Bough has been unduly pessimistic

as regards the plaintiff’s future and my view on the evidence is that the plaintiff may be left with some intermittent

discomfort in his left arm but this condition could very well ease up.”

17. In these circumstances, he awarded the plaintiff €35,000 general damages to date and €40,000 general damage into the

future which included a small allowance for any potential future treatment and medication, to a total of €75,000. The learned

trial judge also awarded €21,007.72 for miscellaneous medical hospital expenses, and loss of earnings, being a net of €22,000.

18. The learned trial judge then turned to the post 10th December, 2001, situation and said it was ‘very far from straight

forward’. The trial judge recognized the complexities of the case which included the nature of the injuries, soft tissue injuries,

the demanding job of a firefighter, the rather remarkable practices as to the employment of firefighters on light duties, and the

path taken by the plaintiff from March or April, 2001, that would lead him to be retired from the fire service. The trial judge

considered possible alternative motives of the plaintiff. He said:

“It may be that he took the view that if he was retired from work he would recover a full loss of earnings into the future

together with any loss of pension rights and gratuity entitlements. It may be that he felt that he was a burden on his

colleagues and he preferred simply not to continue at work.”

19. However, the trial judge decided, on balance, to accept as a matter of probability that the plaintiff was not fit for the full

rigours of everyday firefighting duties and that he could not do very heavy physical activity. However, he could have remained

working on lighter duties.

20. The trial judge addressed the difficult issue of the retirement of the plaintiff. It is clear that the evidence as to work

practices of people on light duties or “applying” for posts such as instructors, were rather unclear. The trial judge held that this

whole area was unsatisfactory and that there was evidence upon which he could make such a determination. He found fault

with the plaintiff’s actions, or lack of them, in seeking other duties, and with the defendant. He found the plaintiff 40%

contributorily negligent on this factor. The learned trial judge factored in other matters and made an order of €25,000 from his

retirement to the time of trial. Treating these figures as round figures to cover a situation into which the learned Trial judge has

factored in relevant matters, I would not disturb this figure.

21. The learned trial judge then dealt with the future. He pointed out that the situation was less clear. On this he was correct.

However, a decision had to be made on the matter and this he did. He was satisfied on the evidence (and was entitled so to

determine in light of the evidence) that it was not certain that the plaintiff, then 43, could, because of his medical condition,

have stayed until the retirement age of 55, as a firefighter. The learned trial judge held:

“Doing the best I can on the evidence, I take the view that it is reasonable to come to the conclusion that the plaintiff

could have remained on in employment with the defendants for a further three years but then as a probability would have

lost his job by being retired on the ground of ill health because he was not fit for the full rigours of all firefighting duties.”

22. He approached the claim for future loss of earnings on the basis that for the first three years of the twelve years of service

left to him, he would have remained in employment with the appellants and he allowed a loss for this taking into account his

capacity to take up alternative employment and his own actions in bringing about his retirement. He did not make any 40%

reduction for the following nine years because he held, as a probability, that the plaintiff would have been let go following a

review. He applied Reddy v. Bates, at 5%. (I infer this was at such a low level because of the usually very secure nature of the

job of firefighter). The learned trial judge referred to the actuarial figure and to the probability of the plaintiff getting future

employment. He did not accept that the plaintiff would only be capable of earning €303 per week. He analysed at length why he

felt the plaintiff would be capable of taking up alternative work. While much of this analysis was raising issues as to the

evidence of the plaintiff and as to his capacity to do things and work, the trial judge does not hold that he plaintiff lied, or

misled the court, or exaggerated his claim. He rejected certain evidence. This he was entitled to do.

23. He pointed out that he had the benefit of certain agreed figures and an agreed actuarial multiplier. However, he held that

he did not have sufficient acceptable evidence to be in a position to apply the multiplier to any particular figure and that he

would use the multiplier as a guideline only.

24. In all the circumstances he allowed €150,000 for future earnings, from which he deducted 5% on the Reddy v. Bates

principle.

25. As to loss of pension and loss of gratuity, the learned trial judge referred to his determination that the plaintiff will probably

obtain future employment with consequent entitlements. He held:

“The maximum sum claimed by way of loss of pension is €99,548 and in respect of loss of gratuity €37,215. I take the

view in all the circumstances that it is fair and reasonable to allow the plaintiff €49,774 in respect of loss of pension

entitlement and €18,607 in respect of the plaintiff’s claim for loss of gratuity. I take the view that the Reddy v. Bates

factor equally applies to this claim and I propose to reduce these figures by 5% accordingly thereby allowing the plaintiff

€47,285 in respect of his claim in respect of his pension entitlements and €17,676.00 in respect of loss gratuity

entitlement.”

26. Accordingly, the High Court made the award of €350,461.72.

Conclusion

27. While this was not a dramatic crash or injury, it resulted in a soft tissue injury which had sequaelae which created serious

problems. In this complex case the learned trial judge heard the oral evidence and gave a carefully considered reserved

judgment. The case turns on the issue of the credibility of the plaintiff. The plaintiff gave oral evidence which was assessed

carefully by the learned trial judge, along with the other, sometimes conflicting, evidence. While casting some doubt on aspects

of the plaintiff’s claim, the learned trial judge did not disbelieve him. The learned trial judge accepted his evidence and the

medical evidence tendered by the defendant in this assessment. He concluded that the plaintiff had suffered a soft tissue injury

which had especially serious consequences because of the nature and demands of his job as a firefighter.

28. This was an injury of which there were little or no objective findings, but that is often the case with soft tissue injuries.

This is a case where the doctors and courts heard evidence of subjective symptoms. That is often the only evidence in soft

tissue injuries. The nature of the injuries may make objective findings virtually impossible. That does not mean there can be no

evidence. It means that the nature of the evidence is different to that of an injury, such as a broken bone, where there can be

objective findings. In this case there were no findings by the trial judge of lying or malingering by the plaintiff.

29. In all the circumstances, I would not interfere with the findings of the learned trial judge or his inferences. While the method

of achieving each of the figures for damages was not done in a precise actuarial fashion, the very nature of the case and its

circumstances leaves the choices as made by the learned trial judge open on the evidence. There was evidence upon which he

could make the determination which he did. The accident resulted in the injuries to the plaintiff and the steps taken, and not

taken regarding his retirement. As to the muddled and confused situation leading up to his retirement, the learned trial judge

determined carefully a degree of fault by the plaintiff and built it into his decision. There was evidence upon which he could

make such a determination. Consequently, I would uphold the order of the High Court and dismiss the appeal.