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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Daly v. Murphy [1999] IESC 72 (29th October, 1999)
URL: http://www.bailii.org/ie/cases/IESC/1999/72.html
Cite as: [1999] IESC 72

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Daly v. Murphy [1999] IESC 72 (29th October, 1999)

Keane J.
Murphy J.
Barron J.
354/97
THE SUPREME COURT

SEAN DALY
Plaintiff
and

ERIC MURPHY
Defendant
JUDGMENT delivered on the 29th day of October 1999 by BARRON J. [Nem Diss.]

1. The plaintiff was at all material times the skipper of a fishing trawler which was involved in a collision with another vessel on the 2nd of February, 1993. He was at that date aged forty-eight years. As a result


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of the collision he says that he was thrown about the wheel house and struck his back against the instrument panel. His action for damages for personal injuries was heard in October, 1997 and at that date he complained of continual and continuing pain and stiffness in his back which was getting worse.

2. The collision occurred in the early morning and when the vessel returned to harbour a marine surveyor who had been notified of the collision was at the dockside. He told him no one had been injured in the collision. Later that evening the plaintiff consulted his doctor from whom he received a prescription for tablets for his nerves. The plaintiff did not again consult his general practitioner. Subsequently, he obtained a medical card and was assigned a different general practitioner whom he has attended since from time to time.


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3. The boat was laid up for up to eight weeks for the purpose of repairs.


4. At the end of that period he returned to sea in the boat as its skipper and continued in that position for a further five months. Thereafter he ceased work and maintains that he is now unable to carry out his pre-collision employment. He does accept that he is fit for some work as an inshore fisherman.


5. In April, 1994 the plaintiff was apparently referred to Mr. Byrne an orthopaedic surgeon at Beaumont Hospital for an investigation of his condition. A CT scan was taken which showed a prolapse of the L4/L5 disc in his spine.


6. Previous to this referral the plaintiff had consulted a solicitor for the first time on the 28th January, 1994. As his solicitor was unable to obtain a report from Mr. Byrne he referred the plaintiff to another orthopaedic surgeon, Mr. Thakore, who saw the plaintiff on three separate occasions;


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27th July, 1994, 1st April, 1996 and 29th April, 1997 solely for medical legal purposes.

7. The plaintiff gave evidence at the hearing that he was unable to carry out his pre-accident work and was able only to carry out intermittent inshore fishing. The medical evidence called on his behalf was solely that of Mr. Thakore. His evidence was to the effect that the prolapsed disc was caused by the collision and that the pain which the plaintiff was suffering was caused by pressure on a nerve root.


8. The defendant’s case was that the prolapse of the L4/L5 disc was not caused by the collision and that there was gross exaggeration by the plaintiff of his injuries. It was suggested to Mr. Thakore and agreed by him that surgeons routinely meet persons with mild prolapsed discs as in the present case and that they were able to get on with their lives albeit with some pain. It was suggested to him that Mr. Byrne in his reports


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had suggested that there was only a possibility that the prolapsed disc related to the accident. In addition, it was also put to him that it was Mr. Byrne’s opinion in March, 1994 that the plaintiff was fit and healthy for his age and had normal straight leg raising.

9. It was unsatisfactory that no other medical evidence was called on behalf of the plaintiff. Neither the general practitioner who saw the plaintiff on the night of the collision nor his subsequent general practitioner who has been treating him nor Mr. Byrne were called to give evidence. It had been intimated by counsel on his behalf that Mr. Byrne was to be called as a witness. In fact the hearing was adjourned for a short time on the second day to enable counsel to consult with Mr. Byrne. Having done so he indicated to the Court that Mr. Byrne would not be called as a witness.


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10. In December, 1991 the plaintiff had complained of problems with his back and an X-ray at that time had disclosed deterioration of the L4/L5 disc. Again no evidence was called on behalf of the plaintiff nor on behalf of the defendant as to the condition of the plaintiff immediately preceding the collision.


11. In the result, there was no evidence as to the medical condition of the plaintiff at the date of the collision nor was there any evidence of his condition immediately thereafter or subsequently by any medical person who had treated him. Nor was Mr. Thakore apparently aware of what treatment the plaintiff had received and could only express his opinion as a result of what he had been told by the plaintiff.


12. The case was heard before Laffoy J. in October, 1997 over two days. Liability was not in issue and the only question was the amount of the damages which should be awarded to the plaintiff. The learned trial


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judge found that all the issues in relation to injuries raised turned on the credibility of the plaintiff. The case had been opened upon the basis that the plaintiff had been offered surgery for his injury by Mr. Byrne and had been told that there was only a fifty/fifty chance of success. The plaintiff gave evidence to this effect. Mr. Thakore did not suggest that the plaintiff needed surgery at the date of the hearing. As Mr. Byrne was not called to give evidence the learned trial judge drew the inference that surgery was not indicated. She added by way of general observation “I conclude that the reference to surgery and the possibility of a wheelchair existence was just one manifestation of a gross over statement of his case by the Plaintiff”

13. The learned trial judge made certain findings. She found (1) that it was probable that the prolapsed disc was attributable to the collision; (2) that the plaintiff was fit for work around the beginning of September, 1995; (3) that because of his injury from the collision he would have


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suffered more pain and discomfort in the course of performing his duties than if he had not been injured; (4) that the plaintiff’s pre-existing condition had to be taken into account.

14. So far as the amount for the loss of earnings was concerned she accepted that all she had were broad uncorroborated estimates of income. In the event she awarded the plaintiff £2,000 for loss of earnings until the repair of the boat being £250 per week for eight weeks. She then allowed £200 per week over a two-year period from the 1st September, 1993 to 30th August, 1995 which amounted to £20,800. In regard to pain and suffering she awarded the sum of £20,000 to the date of the hearing and the sum of £30,000 for the future. In all the award came to £72,800.


15. The defendant has appealed to this Court on the basis that the award of damages was excessive.


16. The grounds of appeal set out in the notice of appeal were as follows:


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“1. That the Learned Trial Judge’s findings that the Plaintiff/Respondent was entitled to the sum of £20,000.00 for pain and suffering to date and £30,000.00 for future pain and suffering and the weight of the evidence and was unsupported by any credible evidence.

2. That having regard to the Learned Trial Judge’s findings that:-

(a) all of the issues raised turned on the credibility of the Plaintiff/Respondent;

(b) an unfavourable inference was to be drawn from the failure of the Plaintiff/Respondent to call his treating surgeons;

(c) that the Plaintiff/Respondent had grossly overstated his case;

(d) that the Plaintiff/Respondent had exaggerated his symptoms to Mr. Thakore, his medical expert; the amount of £20,000.00 for pain and suffering to date and £30,000.00 for future pain and suffering was excessive and unreasonable.

3. That the Learned Trial Judge’s findings with regard to loss of earnings were unsupported by any credible evidence and failed

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to take into account that the burden of proving these figures lay with the Plaintiff/Respondent.”

17. The learned trial judge found in her judgment that all the issues in the case depended upon the credibility by the plaintiff. The learned trial judge found that there was gross exaggeration by the plaintiff of his case. As one reason for so finding she accepted the negative inference from the failure to call Mr. Byrne that he would not have supported the plaintiff on the question of the desirability of operative treatment.


18. In my view once a trial judge regards a witness’s evidence as an exaggeration, not alone a gross exaggeration, then before any of that evidence can be accepted there must be corroborating evidence from which it can reasonably be inferred where the line of exaggeration occurs. Normally. a trial judge has t~. decide upon conflicting evidence. The trial


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judge can decide to accept either evidence in full or make a finding somewhere between the conflicting stances.

19. In the present case there is no such evidence called by either party. The learned trial judge did not accept the alleged opinion of Mr. Byrne put to Mr. Thakore on behalf of the defendant though she could well have taken the additional negative inference that by not calling Mr. Byrne it was likely that he would have supported the allegations put to Mr. Thakore as coming from him.


20. It is clear from her findings that the learned trial judge accepted that the video evidence as to the behaviour of the plaintiff on the 4th December, 1995 showed that he was more than able to carry out his pre-accident work on that date. Nevertheless, all the inferences are against making any particular findings. The learned trial judge was influenced by the fact that the plaintiff went to his general practitioner on the day following the


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collision - in fact he went the same evening - even though he had said that nobody was injured when the boat docked. This doctor did not give evidence so there was no independent evidence before the Court as to the nature of the complaints made by the plaintiff on that occasion. There is a negative inference that he did not consult the doctor concerning pain in his back. He says that he was given tablets for his nerves which suggest that he consulted the doctor because he was feeling the after effects of the shock brought on by the collision that morning.

21. Any claim which is made long after the event must give rise to suspicion as to its bona fides, a suspicion which is increased by the absence of any contemporaneous evidence of the effects of the alleged accident. In the instant case, it is further aggravated by the absence of evidence as to a known pre-accident condition and the lack of candour shown by the plaintiff both to Mr. Thakore and to the occupational therapist called to


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give evidence on his behalf. He told the former that he had made two attempts to get back to work and as regards the latter he did not tell her of his pre-accident history.

22. In the present case there was no medical evidence indicating a medical opinion as to the extent of pain and stiffness which might have been anticipated. There was, accordingly, no other evidence upon which the learned trial judge could have decided where the truth lay.


23. She accepted that on the probabilities the prolapsed disc was caused by the collision. There was, however, no evidence from which such a conclusion could have been reached. The only evidence was the evidence of the plaintiff himself and this the learned trial judge was not prepared to accept in full. However, the problem then lay that there was no evidence from which she could have adduced how much of that evidence to accept.


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24. Counsel for the defendant has submitted that the award of damages for pain and suffering would have been at the higher range if there had been no pre-existing back problem and if the entirety of the evidence for the plaintiff had been accepted. I would agree with this submission. Again, there was no evidence from which the learned trial judge could have distinguished the effects of the prior injury from the effects of any injury sustained by the collision. Admittedly, the plaintiff was able to do his work at the time of the collision but equally admittedly, there was no evidence to suggest that he was unable to do so immediately after the collision either.


25. The only evidence which exists and again it is dependent upon the credibility of the plaintiff is that he went to his general practitioner on the evening of the collision. However, unfortunately for him there is no evidence from that doctor as to his condition on that evening nor as to


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what his complaints were. The learned trial judge does accept his credibility on the issue that he went to the doctor but as with the other aspects of this case there is still no means of distinguishing between what may have been his injuries and what he said they were something which has been discounted by the learned trial judge.

26. Having regard to all these matters it seems to me that there is no evidence upon which any award of damages for personal injuries or for pain and suffering could have been awarded ‘other than. for shock. In my view once the learned trial judge found gross exaggeration there was no evidence upon which she could have made any finding as regards the following:


(1) Any period during which the plaintiff was unfit for his pre-accident work;

(2) that the prolapse of the L4/L5 disc was caused by the collision;

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(3) that he would suffer more pain and discomfort in the performance of his duties than if the collision had not occurred;

(4) the extent to which the plaintiff’s pre-accident condition would have contributed to his post-collision pain and suffering.

27. This view would result in a very small award to the plaintiff. Having regard to the payment of the sum of £32,000 by the defendant to the plaintiff as a condition of a stay such nominal award would work an injustice to the plaintiff. This can only be avoided by directing a retrial.


28. The question of loss of earnings places the plaintiff in the same position. There is or must have been documentary evidence indicating how much the plaintiff earned from time to time. The plaintiff has failed to produce such evidence and has instead given an estimate which cannot be verified as to what his earnings were. Undoubtedly, if a court is satisfied that a plaintiff was out of work by virtue of his injuries or by virtue, as in this


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case of the vessel being laid up for repairs, then it is reasonable to suppose that the plaintiff would have been out of pocket. However, unless the plaintiff indicates by credible evidence how much he would have been out of pocket there is no evidence from which the Court can determine any particular figure. That is the case in the present case and accordingly, the plaintiff having failed to establish his loss would not have been entitled to damages under this heading.

29. In the event I would allow the appeal and would remit the matter to the High Court for retrial on all issues.

© 1999 Irish Supreme Court

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