THE HIGH COURT
1985 No. 5936 P
BETWEEN/
JOHN O'CALLAGHAN
PLAINTIFF
AND
SITE SERVICES LIMITED
DEFENDANT
Judgment delivered the 25th day of January, 1989, by O'Hanlon J.
The Plaintiff, John O'Callaghan, was born on the 15th November, 1945, and is now 43 years of age. He is married. There are six children of the marriage, some of whom are still in their early infancy, and he has two step-children from an earlier marriage of his wife, so the family numbers ten in all.

The Plaintiff left school at age 14/15 and worked as store-boy with an engineering company, later as helper to a van driver, then found his way into labouring work, and he has worked in this capacity with several different employers in England and Ireland until the occurrence of an accident in which he was involved on the 16th May, 1985, while in the employment of the Defendants.

He was at that time assisting in the construction of the new Hibernian Bridge, which provides a pedestrian walk-way over the main road leading from Cork to Kinsale. While helping to carry a heavy metal acetylene cylinder along the partly-constructed bridge, for use in welding work, he lost his footing and claims that when he fell forward the metal cylinder fell against his lower back and injured him. He was taken to hospital and allowed home after examination in the Out-Patients Department. He was admitted to the South Infirmary shortly afterwards, under the care of Mr. Cahill, Consultant Surgeon, and had traction treatment which lasted for about ten days.

Since that time the Plaintiff has had various forms of treatment all of which, he deposes, were of little avail, and gave him only temporary relief. He had courses of physiotherapy, and a further course of three epidural injections over a three-month period at Mr. Cahill's suggestion, between November, 1986, and January, 1987. He continues to complain of pain in his lower back with pins and needles extending down into his left leg. He has been taking pain-killing tablets since the accident and was supplied with a surgical corset which he says he wears constantly except at night.

Another major complaint is one of psychiatric disorder which the Plaintiff claims has evolved over the years since the happening of the accident and which is said to have been brought on by the traumatic experience of the accident, and the pain and suffering caused him by his injuries, with consequential disruption of the way of life formerly enjoyed by him.

Liability for the accident was initially denied by the Defendant, but is no longer in issue between the parties, and there only remains for decision the assessment of damages to which the Plaintiff is entitled in respect of the accident in which he was involved.

The Plaintiff claims that he has been incapacitated at all times since the accident - that he was totally unfit for work for about three years, and only fit for light work during the last year or so. It is claimed that he will never be fit for his pre-accident work or for any work involving heavy lifting, or work on heights and that his field of possible employment must be confined for the future to jobs which would not involve him in any strenuous activity. He also says, that as far as recreation is concerned, he was still actively involved in football prior to the accident, but is now unable to engage in any form of exercise other than walking for short distances.

Mr. Cahill, who was responsible for treating the Plaintiff as a Consultant Surgeon has, unfortunately, died during the past year, and evidence in respect of the Plaintiff's physical injuries was given by Dr. Cashin, who examined the Plaintiff on one occasion in the year 1988, and by Dr. Whelan, who has been treating the Plaintiff as his family doctor at all relevant times both prior to and subsequent to the accident. Dr. Walsh, an anaesthetist, gave evidence about administering the epidural injections in 1986/87. Dr. Magirr, a Consultant Psychiatrist, gave evidence about the Plaintiff's psychiatric condition over the last few years.

For the Defence, medical evidence as to the Plaintiff's complaints of physical disability was given by Mr. St. John O'Connell, Consultant Surgeon, and as to his psychiatric complaints by Dr. Patrick Murray.

It appears to be agreed among the medical experts that the nature of the injury sustained by the Plaintiff was a soft tissue injury in the region of the lower back, of a kind which would normally be expected to clear up within a relatively short period. Tests carried out under Mr. Cahill's direction by X-Ray and Myelogram failed to show up any more serious injury.

Dr. Cashin felt that if the Plaintiff's psychiatric disorder could be resolved it would probably bring about a concurrent resolution of his complaints of physical disability. Mr. O'Connell concluded that any physical disability resulting from the accident had cleared up long before the case came on for trial. He examined the Plaintiff on five occasions, commencing on the 9th September, 1985, and found him uncooperative in submitting to any tests which would give a clear indication of his physical condition from time to time.

His impression when he examined the Plaintiff on the 19th February, 1986, was that the Plaintiff was exaggerating his symptoms and should go back to work, while continuing to wear a surgical belt for some further time by way of precaution. He said, however, that the appearance of the belt, on any occasion when he examined the Plaintiff, was not consistent with its having been worn constantly, as claimed by the Plaintiff.

On the psychiatric front the Plaintiff's case was strongly supported by Dr. Magirr, a Consultant Psychiatrist, who has treated the Plaintiff from November, 1985, and again by his General Practitioner, Dr. Whelan, whereas Dr. Murray, who examined the Plaintiff in February, 1988, found virtually no signs of psychiatric disorder, and could see no reason why he should not go back to work as soon as possible.

It emerged in the course of the evidence that in the years preceding the accident the Plaintiff had been admitted on no less than five occasions to a Psychiatric Hospital for treatment for nervous disorder to which alcohol abuse and marital friction were contributing factors.

From a consideration of all the medical evidence and my impression of the Plaintiff as witness in his own case, I believe that the Plaintiff has been exaggerating his symptoms since the time of the accident; that he is not now suffering from any serious degree of physical incapacity attributable to his injuries, and that the depression and tension and stress of which he complains are in all probability caused to a very large extent by the same factors which brought them on in the years prior to the accident. If there were family problems already affecting him before the accident, they would certainly be compounded by sitting around idle at home all day instead of occupying his mind and his body with some form of useful activity or even in the search for suitable employment. On the Plaintiff's own evidence he does not appear to have done anything whatever, while waiting for his case to come to trial, to seek out any work which would have been within his capacity from time to time. Unfortunately, there may not have been much incentive for him to do so as the income he was deriving from Social Welfare on a year-round basis, does not appear to have been far below the income he could have hoped to earn in the course of a year, allowing for possible periods of unemployment, and when deductions for income tax and PRSI are taken into account.

I have come to the conclusion that a reasonable approach to the claim for damages would be to conclude that the Plaintiff was incapacitated to a greater or lesser degree as regards his ability to work and to earn his living, by reason of the injuries he sustained in the accident, for a period of about two years after the accident, by which stage all treatment prescribed by Mr. Cahill, the Consultant Surgeon who was supervising his case, had come to an end, and that any
psychiatric overlay of his physical injuries which could be attributed to the accident was not of such an order after that time as to render him incapable of going back to work. I accept that since that time he has continued to have some symptoms which bother him and that this situation will continue into the future - for how long it is impossible to determine - but I believe that these symptoms were not, after the initial period of two years or so, and are not likely to be in the future, of such a character as to be incapacitating to a serious degree, or to prevent the Plaintiff from enjoying life to the extent that he did before the accident.

On this basis I assess damages in the case as follows:
(1) Loss of earnings over a period of two to three years, making some deduction from the gross figure to allow for the fact that the Plaintiff's employment with the Defendant was due to come to an end shortly after the date of the accident, and he had no guarantee of continuous employment-
	      £12,000.	
Thereafter -		
(2) Pain and suffering to date -	£20,000.	
(3) Pain and suffering for the future 	£10,000.	
Total:	£42,000	

R.J. O'HANLON 
25th January, 1989