Top personal injury general damages not confined to catastrophic cases

 

Nicola Connolly (plaintiff) v Bus Eireann, Tegral Metal Forming Limited and Kevin Doyle (defendants).

Negligence - Personal injuries - Brain damage - Contributory negligence - General damages - In assessing sum objective is to be fair and reasonable - Regard to 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 - Yard stick of a reasonable nature to be applied if reality is to be retained in the assessment of such compensation.

The High Court (Mr Justice Barr); judgment delivered 29 January 1996.

THE primary objective in caring and providing for a person who has suffered grievously disabling permanent injuries is to try to create as much normality as possible in the life of that person and to provide, where feasible, the means whereby this might reasonably be achieved. In assessing general damages in such a case, the objective of the court is to be fair and reasonable. Some regard must be had to the ordinary living standards in the country, to the general level of incomes, and to things upon which the plaintiff might reasonably be expected to spend money. It may be that in addition to the facts of a particular case other matters may arise for consideration in assessing what, in the circumstances, should be considered reasonable. However a yard stick of a reasonable nature must be applied if reality is to be maintained in the assessment of such compensation.

The capping of such damages by the Supreme Court in Sinnott v Limited [1984] should not be regarded as a pinnacle to be awarded only where the injuries and the consequences thereof are appallingly catastrophic, but applies in all cases where major permanent injuries have been sustained which render the injured party dependent on others to maintain a viable way of life and where he has suffered a grievous permanent change in pre accident capacity to lead a normal existence and to enjoy the normal pleasures in life which he might reasonably have expected to enjoy but for the injuries sustained. The true value of the amount fixed by the court in Sinnott was now £200,000.

Mr Justice Barr so held in assessing general damages at £200,000 with special damages of £1,068,746 where the plaintiff suffered brain damage as a result of a road traffic accident. The plaintiff was found liable for contributory negligence to the extent of 50 per cent and the damages were reduced accordingly.

Paul Gilligan SC and David Gilvarry BL for the plaintiff Henry Hickey SC and Gina Plunkett BL for the first defendant; Eamon de Valera SC and Jim McArdle BL jar the second and third defendants.

MR JUSTICE BARR, outlining the facts of the case, said that the proceedings arose out of a road traffic accident which occurred at about 5.00 pm on 8 May 1990 outside the plaintiff's home near the village of Cliffoney, Co Sligo, on the main Donegal Sligo road. The plaintiff, Nicola Connolly, had travelled home from school at Bundoran on a single decker bus owned and operated by the first defendant, Bus Eireann, and driven by Patrick Donagher. The bus was on a scheduled run from Ballyshannon to Sligo at the time. Nicola alighted from the bus opposite her home and walked along the near side of the vehicle to the rear as it remained stationary. The bus began to move off and as it did so Nicola appeared from behind the back of the vehicle. The third defendant, Mr Doyle, an employee of the second defendant company was driving a motor car, the property of the company, towards Bundoran from Cliffoney. A collision occurred between Nicola and Mr Doyle's car in consequence of which she suffered grievous injuries including substantial permanent brain damage which prevented her from giving evidence at the trial.

Mr Justice Barr said that there was a somewhat unusual background to the trial in that the plaintiff, through her mother and next friend, had originally issued proceedings as against Tegral Metal Forming Limited and Kevin Doyle. Subsequently proceedings were then issued against Bus Eireann and the actions were ultimately consolidated.

Shortly before the trial the plaintiff sought to discontinue her action as against Bus Eireann, to which the other defendants objected and it was held that it was too close to the trial to permit a change of parties. In the course of the trial there was a two sided contest on liability: first, the plaintiff's claim against Mr Doyle and his company with a counter claim relating to her contributory negligence; and secondly, a contest between the defendants as to their respective liabilities (if any) to the plaintiff in negligence.

Mr Justice Barr said that the plaintiff had at all material times resided with her mother and younger brother in the family home, part of which abutted onto the main Sligo Donegal road on the Bundoran side of the village of Cliffoney. She was just under 15 years old at the time and was attending a secondary school in Bundoran. School buses were provided for the benefit of primary school children in that area, but secondary school attenders travelled to and from by ordinary scheduled bus service.

Mr Donagher's bus served two secondary schools in Bundoran and on the evening in question he collected about thirty boys and girls including the plaintiff. He also had about twelve adult passengers on leaving town. He was familiar with the special problem of safety associated with children who he recognised were not always predictable in their conduct.

On the day in question he was acting as a relief driver on the particular route which was not his normal route. Mr Justice Barr said that there were three main witness in relation to the incident; namely Mr Donagher and Mr Doyle, and an independent witness who was following behind Mr Doyle's car at the time of the incident. The plaintiff was unable to give evidence.

In light of the evidence of the eye witnesses Mr Justice Barr was satisfied that Mr Doyle, having left the village of Cliffoney and returning to the straight open road on which there was no traffic ahead on his side, accelerated and was continuing to accelerate as he approached Mr Donagher's bus. He conceded that he may have been travelling at 50 mph at that point, but Mr Justice Barr felt that the probabilities were that he was travelling somewhat faster than that at the moment of impact. Mr Doyle first saw the stationary bus when it was 200 yards away. He took the view that it presented no danger to him and for that reason appeared to ignore it. Mr Justice Barr accepted the evidence of Mr Donagher and the independent witness that the former flashed his lights in sufficient time to warn Mr Donagher and for him to react but that the latter did not notice. He conceded that it did not occur to him that the purpose of the bus stopping as it did may have been to let down a passenger. His evidence indicated that his sole interest in the stationary bus was whether it might constitute a risk to him and thereafter paid no more attention to it and continued to accelerate.

Mr Justice Barr was satisfied that Mr Doyle should have anticipated that the purpose of the bus being stationary on the road was to allow a passenger to alight or dismount and that, if the latter, a passenger at that time of the day may have been a child returning home from school. In those circumstances he should have slowed down and pulled over as has practicable to his left before starting to pass the bus. Even if there had been no flashing lights, he ought to have appreciated the risk of danger and should have reacted accordingly. The additional warning of the flashing lights should have emphasised the potential danger of the situation. In those circumstances Mr Justice Barr had no doubt that Mr Doyle was negligent.

However, he said that it was well established on the evidence that Mr Doyle was at all times at least two feet on his side of the hatched white line when the impact occurred. The plaintiff was nearly 15 years of age at the time, and though still a child, was an experienced bus traveller. The probabilities were that the car was overtaking the bus when she came out onto the road beyond the shelter of the bus. She could have avoided the accident either by waiting until the bus had moved off and she had a full view to her left or by looking out to her left before fully emerging from behind the bus. It was evident that she must have moved out about four feet or more to the point of impact, although there was no evidence that she ran, and in those circumstances Mr Justice Barr had no doubt that she was also negligent. In all the circumstances he took the view that fault should be apportioned on a 50/50 basis as between Mr Doyle and the plaintiff.

In holding that Bus Eireann were not negligent, Mr Justice Barr rejected the submission advanced on behalf of the other defendants that there should have been some suitable sign or writing to indicate that the bus was in part school transport and disagreed that Bus Eireann owed a duty to other road users to do so. He further rejected a submission that Mr Donagher should have availed of the field entrance to his left near the plaintiff's house for the purpose of setting her down. He took the view that Bus Eireann took reasonable care for the plaintiff's safety and that Mr Donagher behaved in an exemplary way in reminding hear that she was alighting onto a busy road and warning her that she should take care. In all the circumstances the second and third defendants' claim for contribution or indemnity from the first defendant failed.

Turning to the question of damages, Mr Justice Barr said that the plaintiff suffered grievous injuries as a result of the accident. She was deeply unconscious and was removed to Sligo General Hospital from which she was promptly transferred to Beaumont Hospital in Dublin. A CAT scan indicated diffuse brain swelling. She had a fracture to her left humerus, abrasions on her thighs, fracture to her pubic bone, ligamentous injury to her ankle and dental damage. A tracheostomy was carried out. In mid September she was transferred to the National Rehabilitation Hospital in Dun Laoghaire where she remained until August of the following year. On the Glasgow coma scale of 1 to 15 she was assessed at scale 6 which indicated serious brain injury. She had resultant disablement of the left side of her body and although he had not suffered from post traumatic epilepsy, the risk of this complication was significant and required continuous medication. The medical evidence was to the effect that she would remain totally dependent for the future.

Mr Justice Barr was of the opinion that the primary objective in caring and providing for a person who has suffered grievously disabling permanent injuries, such as the plaintiff, was to try to create as much normality as possible in the life of that person and to provide, where feasible, the means whereby this might reasonably be achieved.

He considered each of the items of special damage claimed and awarded a total sum of £1,068,746 to include the net cost of providing a new suitable home for the plaintiff, various medical expenses, the capital value of the future net loss of earnings of both the plaintiff and her mother to the age of 65, and their loss of earnings to date, the provision of a care attendant who would come to the plaintiff's home for five hours a day, seven days a week and on a full time basis for four weeks of the year, an electrically operated wheelchair and the provision of a motor car and the reduced capital cost of replacing it every four years.

On the question of general damages for pain, suffering, disablement and loss of amenities and enjoyment of life to date and in the future Mr Justice Barr referred to Sinnott v Quinnsworth Limited [1984] ILRM 523, in which the Supreme Court laid down, inter alia, that in a case broadly similar to that of the plaintiff, unless particular circumstances suggested otherwise, general damages should not exceed a sum in the region of £150,000 as compensation for permanent injury per se, excluding special damages. He referred to a passage of the judgment of the Chief Justice, Mr Justice O'Higgins, in which he stated that in assessing damages for such an injury regard must be had to the fact that every single penny of monetary loss and expense which the plaintiff has been put to in the past or will be put to in the future has been provided for and would be paid to the plaintiff in capital sums calculated on an actuarial basis. What is provided in addition by 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 is to be fair and reasonable. Some regard must 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 to 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 yard stick of a reasonable nature must be applied if reality is to be retained in the assessment of such compensation. He had regard to contemporary standards and money value when assessing such damages and stated that he was conscious that there might be changes and alterations in the future.

Mr Justice Barr took the view that the Supreme Court in Sinnoti had not laid down that a cap on general damages of £150,000 should be regarded as a pinnacle to be awarded only where the injuries and the consequences thereof are appallingly catastrophic as they were in that case. Mr Justice O'Higgins had referred to such a cap on general damages "in a case of this nature". Mr Justice Barr interpreted that phrase as meaning all cases where major permanent personal injuries have been sustained which render the injured party dependent on others to maintain a viable way of life and where he/she has suffered a grievous permanent change in pre-accident capacity to lead a normal existence and to enjoy the normal ranges of pleasure in life which he/she might reasonably have expected to enjoy but for the injuries sustained. He had no doubt that the plaintiff's grievous personal injuries put her within that category.

Mr Justice Barr said that it was now over eleven years since the Sinnott cap was fixed at £150,000 and he took the view that its true value was now £200,000 and he awarded the plaintiff that sum for general damages for pain, suffering and disablement, past and future. The total assessment of damages therefore amounted to £1,268,746 and, having regard to apportionment of degrees of fault, the net amount due to the plaintiff was £634,373.

Solicitors: Alfred McMorrow & Co (Bundoran) for the plaintiff; Michael Carroll (Dublin) for the first defendant; J. P. Redmond (Dublin) for the second and third defendants.