Dermot Brady (plaintiff) v James Joseph Doherty and Edward O'Leary (defendants).

Damages - Assessment - Personal injuries - Road traffic accident - Plaintiff suffering from myofascial pain syndrome - Future loss of earnings.

The High Court (before Mr Justice Barr); judgment delivered 31 July 1998.

The injuries that the plaintiff had sustained, including his psychological difficulties, were caused by his accident. Mr. Justice Barr so held in assessing general damages at £280,000.

Henry Hickey SC, Michael Gleeson SC, and Pearse Sreenan BL for the plaintiff; Liam Gaynor SC and Kevin Cross BL for the defendants.

Mr Justice Barr said that the plaintiff was 49 years of age and was married with twins aged 16. Prior to the road accident which was the subject matter of the proceedings, he was a very successful business man who enjoyed good relationships with his wife and children. While driving with his family one Sunday, 27 June 1993, his car was involved in a head-on collision with the second defendant's car, which was out of control. Liability was not in issue. The plaintiff and each member of his family were injured and were given emergency treatment in hospital. However, the plaintiff developed difficulties after a few days.

The primary injury sustained by the plaintiff was a soft tissue whip-lash injury in the area of the cervical spine. A few days after to the accident, the plaintiff returned to work but he was never again able for the full range of his pre-accident activities. He suffered substantial pain on a continuing basis. After seven months, his pain became steadily worse. He attended his GP and in November 1993 was referred to a specialist. Since then he had had courses of psychotherapy, acupuncture, hydrotherapy, reflexology and intermittent pain killing injections, but these achieved only temporary relief.

In addition to the neck injury, the plaintiff sustained high tone hearing loss and suffered from tinnitus. The plaintiff also developed psychiatric difficulties. The evidence of the consultant psychiatrist, Dr Broderick, was that the plaintiff was anxious, depressed and irritable with his family. His condition was deteriorating. His voice became high-pitched when under stress. Dr Broderick's opinion was that the plaintiff was suffering from severe post-traumatic stress disorder with serious depressive episodes. These were aggravated by the side effects from the wide range of medications which the plaintiff was taking for his injuries. Dr Broderick said that he did not believe that the plaintiff would ever be gainfully employed in the future. The plaintiff's condition had developed as a result of the accident and depression had set in when the plaintiff realised that he would suffer pain indefinitely.

The plaintiff continued at work despite increasing difficulties until September 1994. He was demoted from his position, which caused the plaintiff to leave and to bring successful proceedings for unlawful constructive dismissal. He was head-hunted twice for management jobs but was unable to take up the offers. Instead, he took up a FAS computer training course at home, which he was completing with difficulty since he was only able to work for about three hours a day.

The plaintiff's physical condition had also deteriorated. He was unable to dress himself or take a shower without assistance. His hands were subject to periods of coldness and reduction in feeling. He had become unable to care for himself. His children gave evidence that he had not had a happy day since the accident. He was unable to hug his wife or children or to have any close physical contact with them.

The evidence of the senior recruitment consultant with FAS and of a past colleague of the plaintiff was that if the plaintiff were uninjured he would not have any difficulty in getting a job as a general manager in a wide range of commercial activities, particularly in the hotel and entertainment business. He would earn £30,000 to £40,000 per annum in that business.

There was no conflict as to the on-going symptoms of pain suffered by the plaintiff, or in relation to the genuineness of his complaints, but there was some conflict between the parties as to its cause.

The primary professional evidence on behalf of the plaintiff was given by Dr Roiseen MacSullivan, who was a distinguished specialist in pain management. The plaintiff had attended Dr MacSullivan on 55 occasions. She had found him to be a typical case of non-resolution of cervical whiplash symptoms and the most serious she had encountered in a wide experience of such cases. She had diagnosed the plaintiff as suffering from myofascial pain syndrome. This constituted a large group of muscle disorders characterised by the presence of hypersensitive points, called trigger points, together with a syndrome of pain, spasm, tenderness and stiffness.

The plaintiff had always indicated the same trigger points of pain which were consistent with the type of soft tissue cervical injury sustained in the accident, thus establishing a positive causal connection between them. While Dr MacSullivan accepted that there might be an associated subsidiary psychological problem, the plaintiff's primary difficulty was not psychological in nature. Her conclusion was that the plaintiff had developed a chronic pain syndrome with significant soft tissue trauma. The plaintiff was unlikely to return to his pre-accident employment which involved a significant level of fitness. With retraining, he would have only a limited ability to embark on a fulltime occupation, even in a very sedentary way. He had maximised his own efforts to rehabilitate himself but was significantly disabled. There was no medication or treatment for the plaintiff's condition. His condition was deteriorating and would require continuing treatment.

The plaintiff's neurologist and rhematologist agreed with this opinion. The evidence of a general practitioner and of a consultant neurologist on behalf of the defendants' did not materially contradict that of the plaintiff's doctors.

Mr Justice Barr said that he fully accepted the evidence of the plaintiff and of his doctors. According to the occupational therapist, the plaintiff would need to have his house adjusted so as to provide for a bedroom and a bathroom downstairs and hydrotherapy pool should be installed. He would need a year's further training before he could work in telemarketing from home and would need an assistant.

Mr Justice Barr said that the plaintiff's life was dominated by pain. He assessed general damages at £80,000 to date and £200,000 into the future, having regard to the principle in Sinnott v Quinnsworth [1984] ILRM 523.

In relation to future loss of earnings, the plaintiff had shown considerable determination in undertaking retraining, but his earnings were unlikely to exceed £200 net per week. Since his earnings if uninjured would probably amount to £30,000 net, his net annual loss was £20,000. Mr Justice Barr, in applying the principles in Reddy v Bates [1984] ILRM 197 assessed the capital value of this loss from 1 September 1999 at £200,000 with a further £30,000 net loss of income during a period of further training from the date of the judgment to that date.

The plaintiff was also entitled to £40,907 for continuing medical expenses, plus further sums for special damages, past loss of earnings, house modifications, payment of a carer, etc. In total, Mr Justice Barr gave judgment in the sum of £759,804.

Solicitors: Ernest J. Cantillon & Co. (Cork) for the plaintiff; Coakley Moloney (Cork) for the defendants.