The recent case of Walsh v Tesco Ireland Limited 2016 IEHC 322 resulted in an award of 1.4m for the plaintiff and is interesting insofar as the court looked in particular in detail at the area of general and special damages.The judgement was delivered by Mr Justice Barr on 6th May 2016. For the purposes of this post, we have used extensive excerpts from the judgement as reported on the courts website.
The plaintiff in this case was aged 48 and ran a stud farm with her husband in County Clare. On 28th August, 2012 she slipped on grapes on the floor of the defendant supermarket at Kilrush, Co. Clare. As a result of the fall, she suffered an injury to her lower back. It was the plaintiff’s case that, as a result of the fall, she suffered a serious back injury, which required extensive surgery and other treatment, culminating in the insertion of a spinal cord stimulator in her back in 2015. The plaintiff also suffered significant injury to her bladder psychiatric sequelae. Whilst the defendant accepted that the plaintiff had suffered a significant injury, they didn’t accept that, in the absence of the accident, there was any reality to her rejoining the workforce at an executive level in 2018 due to commitments both in the home and on the farm. Amongst the areas for contention between the parties included a claim for future medical/care costs, the costs of aids and appliances and the real rate of return which should be used when calculating the appropriate multiplier to be used in respect of the various heads of future loss.
General Damages and Medical Expert Opinion
On 28th August, 2012 the plaintiff slipped on grapes in the Defendant supermarket and when the ambulance arrived, the plaintiff was strapped onto a spinal board. She was taken to the Accident and Emergency Department of Ennis General Hospital. She was then transferred to Limerick Regional Hospital. The plaintiff stated that she was in extreme pain at this time. The plaintiff was discharged from hospital on crutches. She stated that she had very severe pain at that time in her back and legs. She also had tremors and was on a large number of painkillers. The plaintiff was admitted to the Mater Hospital on 25th February, 2013 and had surgery. The plaintiff stated that initially after the operation, there was considerable decrease in her symptoms but gradually the pain became unbearable again. She had been told to do nothing for a number of weeks after the operation and she followed those instructions. In January 2014, the plaintiff was admitted to the National Rehabilitation Hospital in Dun Laoghaire for intensive treatment. She remained there for a period of eight weeks. The plaintiff also travelled to the United Kingdom to seek the opinion of of a Consultant Orthopaedic Surgeon.
The plaintiff’s various medical experts gave lengthy evidence in relation to the plaintiff’s condition and prognosis including the need to self-catheterise and that it could be said the plaintiff had a catastrophic outcome from her injury.The defendants various medical experts also gave lengthy evidence in relation to the prognosis.
Assessment of General Damages
The court looked at the defendant’s argument that in assessing the quantum of general damages, the court should have regard to the decision of the Court of Appeal in Payne v. Nugent  IECA 268. Irvine J. in that case had stated the following in relation to the approach that should be taken by a trial court when assessing general damages:-
“16. Needless to say it is regrettable that people get injured due to the negligence of others given that an award of damages for pain and suffering cannot restore the victim to the physical or mental status they enjoyed prior to the infliction of their injuries. In this context it is important that compensation, when awarded by the court, in respect of pain and suffering should be reasonable and proportionate in all of the circumstances.17. I am mindful of the fact that while it cannot be stated that there is a cap on general damages for pain and suffering, from the awards made in recent times there is at least a perception that the very upper range for compensation of this type rests in or around the €400,000 mark. The most catastrophically injured members of society who suffer great pain and distress and who may never work or enjoy the benefits of a loving relationship and who may remain dependant on the care of others for fifty or sixty years or indeed for the whole of their lifetime are regularly awarded general damages for pain and suffering in the region of €400,000. So one of the questions I ask myself when considering whether the award made in this case was reasonable or proportionate is whether the trial judge could have been within the appropriate range when he awarded the plaintiff a sum that placed her injuries in terms of value approximately one sixth of the way along an imaginary scale of damages for personal injuries which ends at €400,000 for the catastrophically injured plaintiff. In my view, thus assessed, the award which he made to the plaintiff was not reasonable or proportionate. That is not to say that this is a formula that must be applied by every judge when assessing damages for pain and suffering but for me at least it provides a type of benchmark by which the appropriateness of the award made may helpfully be evaluated.
18. For my part I fear there is a real danger of injustice and unfairness being visited upon many of those who come to litigation seeking compensation if those who suffer modest injuries of the nature described in these proceedings are to receive damages of the nature awarded by the trial judge in this case. If modest injuries of this type are to attract damages of €65,000 the effect of such an approach must be to drive up the awards of those in receipt of the more significant middle ranking personal injuries claims such that there is a concertina type effect at the top of the scale of personal injuries. So, for example, the award of general damages to the person who loses a limb can be little different to the award made to the quadriplegic and that simply cannot be just or fair.
19. So for my part, while I accept that the damages awarded for pain and suffering must be reasonable having regard to the injuries sustained they must also be proportionate to the awards commonly made to victims in respect of injuries which are of significantly greater or lesser import. Modest injuries should attract moderate damages.”
The court looked at the decision of Nolan v. Wirenski  IECA 56, where the court held that the current maximum award endorsed by the Supreme Court for the most serious injuries was in or about €450,000. The court again reiterated that when assessing the quantum of damages in a personal injuries case, the trial court should have regard to the scale of damages ranging from a very low figure up to €450,000. By reference to that scale, the judge should decide where on the scale, the plaintiff in the case before him stands. The Court of Appeal gave the following helpful guidelines:-
“40. As to where on the spectrum of awards the injuries of an accident victim such as Ms Nolan should be located will be determined by the nature and extent of the physical or psychological trauma induced by the defendant’s wrongdoing and the extent to which they may be expected to recover therefrom. There is no template or formula to be applied. Judges, I suggest, tend to look to the presence or absence of particular factors and features to guide them as to the seriousness of any particular injury. They might have regard to the likely answers to the following questions;-Was the incident which caused the injury one which was traumatic and caused distress? Did the particular plaintiff require hospitalisation and if so for how long? What did they suffer in terms of pain and discomfort or lack of dignity during that period? What type and number of surgical interventions or other procedures did they require during that period? Did they need to attend a rehabilitation facility at any stage and if so, for how long? While recovering in their own home, were they capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependant in all or some respects? If the plaintiff was dependant, why was this so? Were they, for example, wheelchair bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependant? What if any limitations had been imposed on their activities such as leisure or sporting pursuits? For how long were they out of work? To what extent was their relationship with family and friends interfered with? Finally, what was the nature and extent of any treatment, therapy or medication required? These are all matters that might be relevant to considering the seriousness of the injury and the amount that ought to be awarded in respect of pain and suffering to date.”
Irvine J. further stated that, as Denham J. advised in M.N. v. S.M.  IESC 17, damages can only be fair and just if they are proportionate, not only to the injuries sustained by the plaintiff, but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs, who have sustained injuries which are of a significantly greater or lesser magnitude. The court went on to make the following observations in relation to the awards made in personal injury cases:-
“As she stated at para. 44 of her judgement ‘there must be a rational relationship between awards of damages in personal injuries cases’. Thus it is important that minor injuries attract appropriately modest damages, middling injuries moderate damages and more severe injuries damages of a level which are clearly distinguishable in terms of quantum from those that fall into the other lesser categories. In this regard, just because a judge describes an injury as significant this does not mean that the damages must be substantial. Any injury to an otherwise healthy individual is significant. However, when it comes to assessing damages, what is important is how significant the injury concerned is when viewed within the whole spectrum of potential injuries to which I have earlier referred.”
Justice Barr stated in summary that it was clear that the plaintiff has suffered a serious injury to the muscles and ligaments of her lower back which caused her to experience severe pain radiating into her left leg. Initial treatment comprised the administration of injections and the prescription of strong pain relieving medication. When this did not improve the plaintiff had extruded disc fragment removed from her lower back in February 2013 which only provided limited relief of some six weeks in duration. In 2014, the plaintiff obtained treatment from the National Rehabilitation Hospital, where she was an inpatient for eight weeks. During this time, she had extensive physiotherapy, occupational therapy and hydrotherapy. In the summer of 2014, she went to the UK and came under the care of Prof. Jeremy Fairbanks who noted that she was disabled in all aspects of her life and recommended that consideration should be given to implantation of a spinal cord stimulator which was inserted in February 2015. The court noted that the plaintiff continues to have constant pain on a daily basis and whilst she can use the spinal cord stimulator to regulate this pain she is not able to eradicate the pain completely. The plaintiff also suffered urological injuries in the accident. She has not been able to empty her bladder efficiently and is obliged to self-catheterise three times per day. The plaintiff also suffered psychological sequelae in the form of PTSD and more recently an adjustment disorder and/or a grief reaction. The plaintiff is required to take antidepressant medication. She also receives counselling on an ongoing basis. Dr. McInerney has stated that she is likely to have to stay on antidepressant medication for the rest of her life.
As a result of her injuries, the plaintiff had been rendered disabled in all aspects of her life and based on the medical evidence before the court, Justice Barr found that on the balance of probabilities the plaintiff would not be fit to return to work again and is also disabled in the social and recreational aspects of her life. In terms of the future, the court observed that the injuries to the plaintiff’s back and to her bladder were permanent in nature.
The court also had regard to the fact that the plaintiff suffered an injury to her back in 2008, when she fell in the yard while chasing cattle and noted the uncontested evidence of the plaintiff was that she had had lower back pain for a number of months after this accident, but that thereafter the pain resolved completely. The plaintiff’s medical records were consistent with these assertions and therefore that injury was not relevant to the assessment of general damages in this case.
Justice Barr commented “Taking all of these factors into account, and having regard to the fact that the plaintiff continues to suffer pain in her lower back and leg and has continuing bladder problems, all of which will be permanent and which have rendered her grossly disabled in the ordinary aspects of her life, I award the plaintiff the sum of €125,000 for general damages to date. In addition, as the plaintiff will have significant symptoms for the rest of her life and will require ongoing treatment, and as her disability will be permanent, I award the plaintiff the sum of €135,000 as general damages for pain and suffering and disability into the future”
Special Damages – Past
The court noted that the parties agreed the amounts claimed in respect VHI, GP fees, loss of wages and consultants fees in the sum of €71,182 but that a number of items of past expenses hadnt been agreed including farm expenses. Here the court observed that no extra expenses were incurred by the plaintiff’s absence from the farm, or due to the absence of her husband from the farm for any given period. In terms nursing costs/past cost of care, given the level of disability, the court allowed the sum of €29,000 in respect of past nursing costs and care costs. The court also allowed travel and subsistence expenses in the sum of €10,805. In total the court awarded the sum of €110,987, in respect of past special damages.
Special Damages – Future
Before turning to the items claimed in respect of future special damages, the court considered the defendant’s argument that when considering the appropriate multiplier to be used in respect of future special damages, “this should be based on an assumed real rate of return of 3%“. The defendant argued that the decision of the Court of Appeal in Russell v. Health Service Executive  IECA 236, should not be applied by the court, because that case dealt with a plaintiff who had suffered catastrophic injuries at birth. It did not apply to the circumstances which arise in this case, where the plaintiff was not catastrophically injured and where the damages awarded would not be her sole means of income and support in the future.
The defendant relied on the judgment of Irvine J. and in particular on the dicta set out in para. 89 thereof:-
“For the purposes of clarity it is perhaps of importance for this court to state that we do not accept the albeit obiter view expressed by the High Court judge in the present case insofar as he indicated that a plaintiff with a claim for future pecuniary loss confined to loss of earnings might possibly be treated as less risk averse than a plaintiff who has a claim for the cost of future care. There appear to be a number of arguments against such a proposition. It would seem to admit of the adoption of a potentially higher real rate of return in the loss of earnings claim on the assumption that the plaintiff can necessarily absorb a greater risk when investing their award to secure their future income. While of course there may be the rare case where a particular plaintiff may not need their earnings to survive on a day-to-day basis and might thus be in a position to take risks in terms of the investment of their award, most plaintiffs do not fall into that category. A plaintiff who will never be in a position to work again and is dependant upon the investment of his lump sum for their own support and that of his family may be entitled be treated similarly in terms of the investment risk he should have to absorb, to the plaintiff who needs to cover the cost of their future nursing care on an annual basis. As this did not arise on the facts herein we consider that a decision on this issue should be left over to an appeal where it does so arise.”
Based on these dicta, the defendant argued that the Court of Appeal had left open the issue as to whether a plaintiff, who did not need the damages for their sole means of support, might adopt a more risky form of investment which would yield a real rate of return greater than that allowed for in the Court of Appeal judgment. The defendant further argued that where the Court of Appeal had specifically left this question open, the only decision therefore binding on the court was the decision of Finnegan P. in Boyne v. Dublin Bus  4 I.R. 47, where a real rate of return of 3% was set down.
Counsel for the plaintiff argued that the most recent binding decision was that of the Court of Appeal in Russell,which was delivered on 5th November, 2015 and that case unequivocally endorsed the judgment of Cross J. in the High Court, who, having heard extensive evidence and argument in relation to what rate of return should be allowed, determined that a real rate of return of 1% should be allowed for loss of earnings or future care costs and 1.5% for all other costs.
Justice Barr noted that the court must decide whether it should follow the judgment of Finnegan P. in Boyne v. Dublin Bus, or the judgment of the Court of Appeal in Russell v. HSE. Justice Barr concluded that the decision in Russell v. HSE, which was handed down by the Court of Appeal on 5th November, 2015, represented the current law in this jurisdiction.
The court then considered the plaintiff’s loss of earnings into the future and noted that in her evidence the the plaintiff stated that it was her dream to return to work in the supply chain management or purchasing areas. Justice Barr noted that the “onus rests on the plaintiff to persuade the court that on the balance of probabilities, the plaintiff would have sought and obtained the type of employment contended for at the trial of the action”. Justice Barr however noted:
“Taking all of these factors into account, I am not convinced that when the negative aspects of the plaintiff returning to work, were weighed against the net gain to the family’s finances, the plaintiff would have opted to return to work in the area of supply chain management or purchasing. However, I am satisfied that the plaintiff and her husband are anxious to do the best that they can for their daughters…….Therefore, I find that on the balance of probabilities, the plaintiff would have sought and obtained a full time clerical/secretarial position in 2018. This would have provided her with an income of in or about €26,000 per annum which would equate to €500 gross per week, giving a net weekly wage of €430……As the plaintiff would only be returning to work for approximately eighteen years in 2018, and having regard to the fact that she would probably have found it relatively easy to secure alternative employment if she were let go from her job as a receptionist/secretary, I do not think that it is necessary to make any deduction along the lines set out in the decision of Ready v. Bates. Accordingly, I will allow the sum of €373,030 for future loss of earnings.In addition, I will allow the sum of €20,000 being the loss of her part-time earnings at €200 per week for the next two years“.
The court then considered amounts claimed under a number of other headings including future urology costs, future home help, GP care, physiotherapy, counselling, aids and appliances.
The court summarised the heads of damages awarded in this case as follows:
General damages (to date) €125,000 General damages (future) €135,000
Past special damages €110,987
Loss of earnings for two years €20,000
Loss of earnings thereafter €373,030
Urology costs (future) €132,750
Home help €110,000
Other expenses €192,882
Aids and appliances €239,846