Mary Curran (plaintiff) v John Finn (defendant).

Tort - Damages - Assessment - Personal injuries - Whether plaintiff's multiple sclerosis aggravated or exacerbated by a fall at defendant's premises.

The High Court (Mr Justice O'Neill); judgment delivered 29 January 2001.

Where the plaintiff had been suffering from progressive multiple sclerosis which had been aggravated by a fall at the defendant's premises, the plaintiff had to be compensated for all pain and suffering resulting from the fall, the development of the thoracic disc, the surgery, the multiple sclerosis symptoms for a defined period and also for an acceleration of symptoms of this disease which in due course would have afflicted her.

The High Court so held in awarding the sum of £329,158.00 as compensation.

John White SC and Patrick Horgan BL for the plaintiff; Denis McCullough SC and James Duggan BL for the defendant.

Mr Justice O'Neill said that this matter came before him pursuant to the order of the Supreme Court of 20 May 1999 allowing the appeal of the plaintiff against the judgment and order of Mr Justice O'Donovan of 27 March 1998 and in lieu thereof directing that the matter be remitted in the High Court for a retrial of all the various issues related to damages (excluding the issue of liability).

In the proceedings, the plaintiff sought damages for personal injuries as a result of a fall in the defendant's grocery shop on 9 March 1993. Mr Justice O'Neill said that the task in the trial before him was merely to assess such damages as the plaintiff was entitled to arising from the fall in question. The issue of damages had been further truncated by the concession of the defendant that a prolapsed thoracic disc which the plaintiff suffered was caused by the fall.

Mr Justice O'Neill said that the single issue which emerged in the trial was whether or not the plaintiff's multiple sclerosis (MS) was aggravated or exacerbated by the fall. In March 1992 she had attended her GP complaining of unpleasant sensations in her back and thighs and a cold sensation in her lower limbs. She was admitted to Cork Regional Hospital where a range of tests were carried out. Her doctor's opinion after all of this was that she remained a very difficult case to evaluate and he was of the view that there might have been a significant functional component contributing to the symptoms.

After the fall in the defendant's shop in March 1993, the plaintiff complained of headaches and of weakness, numbness and hot sensations in her lower limbs. Her doctor was of the view that she was quite incapacitated, having two pathologies, namely the thoracic disc and MS. In January 1994 the plaintiff was admitted to Cork Regional Hospital and was very ill with virtually no power in her lower limbs. On 25 January 1994, the plaintiff underwent surgery for the purposes of clearing the disc material. On 16 February 1994 the definitive diagnosis of MS was made and thereafter the plaintiff was commenced on steroids for five or six days. By November 1994 she had a considerable array of disabilities which rendered her wheelchair bound from then on and she became dependent in all aspects of daily living. Because of her state of health the plaintiff was unable to give evidence.

Mr Justice O'Neill said that a dispute of fact arose in relation to the state of the plaintiff's health between March/April of 1992 and the time of her fall in March 1993. He said that the state of the plaintiff's health as of April 1992 was to the effect that she made certain complaints and while she had some subjective symptoms there were no clear or objective neurological signs of disease at that time. Mr Justice O'Neill inferred from the fact that between April 1992 and March 1993 she did not seek medical attention for any of her complaints, that she was in good health but probably did have fleeting and mild symptoms of the kind she had complained of in April 1992.

Mr Justice O'Neill said that the main dispute in the case was whether or not trauma to the central nervous system could aggravate existing MS and whether, in the case of the plaintiff, her MS was aggravated by the effects of the thoracic disc on her central nervous system and/or whether her MS was aggravated by the surgery to decompress the thoracic disc. He said that the ultimate scientific resolution of this controversy was not something with which the court need concern itself.

Mr Justice O'Neill said that the weight of opinion was in favour of the view that surgical intervention in the brain or central nervous system on patients who had MS carried with it a substantial risk of making the MS worse. As a general proposition, he concluded that it was likely or probable that surgery on the central nervous system in patients who already had MS carried with it the substantial risk of making the MS worse.

Mr Justice O'Neill said that there was little or no controversy among the experts as to whether or not the plaintiff had a prolapsed thoracic disc at D6/ 7. There was controversy as to the extent of any compression of the spinal cord which was caused by this prolapsed disc. Mr Justice O'Neill said that the central question insofar as any exacerbation of the plaintiff's MS was concerned, was not the degree of compression of the cord (if any), but whether or not there was oedema present in the cord at this location. The presence of oedema would indicate a breach of the blood brain barrier (BBB) and thus would have created the mechanism which could be associated with development of further MS plaques. Mr Justice O'Neill said that the question of whether or not there was oedema and/or compression at this point came down exclusively to the interpretation of a MRI scan done on 28 May 1993. Mr Justice O'Neill said that he should determine this issue by reference to the evidence of the appropriate experts, namely the neuro radiologists who gave evidence. On balance he came to the conclusion that as a matter of probability, the scan demonstrated oedema at the site of the thoracic disc at D6/7.

It necessarily followed from this that there must have being compression of a sufficient degree to cause oedema which in turn meant that there was a breach of the BBB adjacent to thoracic disc D6/7. In assessing whether, as a consequence, there was an exacerbation of the plaintiff's MS, Mr Justice O'Neill said that the symptoms had begun to trouble her again to a worrying extent after her fall. He said that there would appear to have been a considerable progression between the end of April 1993 and beginning of June 1993 in the plaintiff's neurological symptomatology. On this issue the experts who gave evidence differed dramatically. Mr Justice O'Neill said that he had to resolve the question as to whether her MS from March of 1993 onwards was progressing naturally as progressive MS or was the rate or progression of her MS accelerated and brought forward in time by the fall. He said that there was undoubtedly a very strong temporal connection, between the fall and the rapid development of MS symptoms thereafter. In the light of the breach of the BBB caused by the fall there was a plausible biological explanation of a connection between the fall and the plaintiff's very rapid decline. The question that arose was whether this rapid decline from March 1993 onwards was to be regarded as the coincidental natural progress of the disease, and unconnected to the fall.

Mr Justice O'Neill said that in the light of the effect of the thoracic disc in generating oedema associated with some degree of compression and the undoubted consequent breach of the BBB and the onset or re-onset of a set of symptoms that rapidly progressed, it seemed that this coincidence was an unconvincing explanation. He stated that as a matter of probability the fall resulting in the prolapsed thoracic disc did cause an aggravation of the plaintiff's MS.

Mr Justice O'Neill said that the next issue to be considered was whether or not the surgery carried out in January 1994 caused a further aggravation of the plaintiff's MS. He said that in the light of the very rapid development of very significant neurological symptoms so soon after her surgery and having regard to evidence about the contra indication of surgery for patients with active MS, it was probable that the symptoms of MS which the plaintiff undoubtedly developed in the aftermath of her surgery was an exacerbation of MS brought on by the surgery.

Mr Justice O'Neill said that the decision to carry out the surgery notwithstanding the above contra-indication was a reasonable one. While the surgery carried with it the risk of making the MS worse, nevertheless the prospect of curing the plaintiff's near paraplegia at that point, by relieving the compression, was a real one and justified the surgery. He said that it only became clear after the surgery that the real problem was the MS rather than the thoracic disc. However, given that the decision to carry out the surgery was at the time that it was made a reasonable and prudent one, the consequences of that surgery were inexorably connected back to the fall.

Mr Justice O'Neill said that the most difficult question to be decided in the case was the extent or duration of the aggravation of the plaintiff's MS both by the thoracic disc and subsequently the surgery. In approaching a resolution of this issue he said that the overwhelming weight of the evidence from the experts was to the effect that the plaintiff had primary progressive MS and in due course was going to end up with her present range of disabilities at some point in time. Insofar as the plaintiff's lower body symptoms resulting from the thoracic disc were concerned, he inferred, from the evidence, that it was likely that she would still be walking with the aid of a stick and that her bowel and bladder problems would be much less severe, but that she was likely to lose the ability to walk after a period of some 8 years from the first onset of symptoms, so that she would have arrived at the stage she was now at, within 10 years of first onset of symptoms.

Mr Justice O'Neill said he was conscious that in the intervening years the plaintiff had at times been quite ill and on occasions had required hospitalisation for active phases of her MS. However, there had been no evidence of the developing of a new range of different symptoms to that which were there when she emerged from hospital in October 1994. He said it would be reasonable to draw the inference, from this, that given that she still had the range of symptoms she developed at that time after surgery, and had not developed significant different symptoms since then, that the duration of the aggravation of MS by the surgery, as reflected by those symptoms should be considered to be coterminous with the symptoms that ensued following the thoracic disc, but before surgery.

Mr Justice O'Neill said that if it was the case that the symptoms resulting from the disc would have reached the stage they were at in October 1994 by early 2002, i.e. 10 years from onset, as a result of the natural progress of the disease, it was probable that the symptoms which occurred soon after the surgery would, in the natural course of the disease have occurred in a similar time frame. Indeed the fact that different symptoms had not emerged in the meantime, suggested that the disease had been less active in the intervening years, than in the period from March 1993 to October 1994. This gave rise to the inference that, the plaintiff, but for the thoracic disc, and the surgery, would have remained free of these symptoms, up to the present time. However, he said that if it was the case that the thoracic disc related symptoms were going to occur in the near future from now, it was reasonable to conclude that the natural activity of the disease would likewise produce the symptoms that occurred after the surgery, in a similar time frame.

As regards the symptoms resulting from the surgery, he said that to conclude otherwise would involve a consideration of a different period of duration. Having regard to the fact that the symptoms had continued to the present, and to the fact that significant different symptoms had not emerged in the meantime, the inference that the symptoms should have ascribed to them a duration similar to the symptoms from the thoracic disc was rational and reasonable.

Mr Justice O'Neill said that the plaintiff had to be compensated for all of her pain and suffering resulting from the fall, the development of the thoracic disc, the surgery, the MS symptoms for the period in question and in addition she was being compensated for an acceleration or bringing forward of symptoms of this disease which in due course would have afflicted her. But, he said, the consequence of this acceleration of the disease was a probable shortening of her life expectancy for which she was entitled to compensation in general damages for which the appropriate sum was £200,000.00.

Mr Justice O'Neill said that the evidence before him in relation to the care and maintenance and support of the plaintiff was that she had been cared for by her own family and by a home help. For the future, Mr Justice O'Neill said that the plaintiff's needs were likely to be similar to those at present and allowed £40,000.00. He said that items of equipment and the construction of an extension to the house which was beyond the period of assessments could not be allowed. Mr Justice O'Neill said that it was impossible to put an accurate monetary estimate on the real value of the care for the plaintiff from 1994 to the present and awarded the sum of £80,000.00. He said that the sum of £9,158.00 as a refund to the Voluntary Health Insurance represented the cost of the plaintiff's hospital care during 1994 and was due to the consequences of the fall and therefore recoverable.

Mr Justice O'Neill said that there would be judgment against the Defendant for the totality of the foregoing sums amounting to £329,158.00.

Solicitors: Timothy J. Hegarty & Son (Cork); Denis O'Sullivan & Co. (Cork)