THE HIGH COURT
		1995 No. 7383P
BETWEEN
JOHN MCDERMOTT
		PLAINTIFF
AND
VAL GARGAN
		DEFENDANT

Judgment of Mr. Justice Feargus M. Flood delivered the 24th day of January, 1997.

	The Plaintiff in this matter is now a 52 year old man.  He is married and has three adult children.
	Since 1965, he has been employed by the Dublin District Milk Board and it's successors as an Artificial Inseminator Technician.  This work involves considerable driving, lifting and carrying of weights of about 25lbs.  It also involves climbing in and over fences and gates and in and out of cattle crushes and dealing with animals for the purposes of artificial insemination.  It is in my opinion a job which comes into the category of heavy work.
	On March 6th, 1992, the Plaintiff was on the Defendant's premises carrying out an artificial insemination when he was kicked by one of the Defendant's cows in the small of his back.  I have already expressed my view that the circumstances under which this incident occurred are such as to render the Defendant 85% liable to the Plaintiff in damages for the personal injuries he has sustained.  
	On the day in question, in the immediate aftermath of the incident, he went on to make another call some five or seven miles away and in the course of his drive to his destination, he found his back getting more and more sore and painful.  That evening, he went to see his local G.P. who records that on examination he had an area of tenderness in his left loin lateral to the body of L4 and was in severe pain.  His G.P. diagnosed a soft tissue injury.
	He continued to complain of the said symptoms.  His discomfort persisted and he claims that it prevented him from going to work.  His G.P. referred him to Surgeon McGrath, an orthopaedic surgeon at Our Lady's Hospital, Navan.  Mr. McGrath, in a report dated January 14th, 1993 (10 months after the accident) notes that he was quite tender over the left side of the lumbosacral junction.  X-rays showed mild arthritic changes in the facet joints in the lower part of the lumbar spine.  He had reviewed him three times in the year 1992 namely, 7th March, 1992, 7th October, 1992 and 4th November, 1992.  He recorded that in spite of intensive treatment, the Plaintiff was still complaining of pain in the left side of his lumbosacral spine.  He concluded that he was not fit to return to work at that date.  He advised that he be fitted with a corset and that when this happened, he should attempt to return to work.  He was subsequently seen at his General Practitioner's request by Professor Timothy O'Brien, another orthopaedic surgeon.  Professor O'Brien first saw him on the 5th July, 1993.  He found that he had a 20% reduction in all movements of his lumbosacral spine.  There was evidence of degenerative disease in this area.  He came to the conclusion that the appropriate diagnosis was acute strain of his lower back aggravating  degenerative changes to his lumbosacral spine.  He admitted him to Cappa Hospital for an epidural injection which did not have any really beneficial effect.  In his view, the complaints by the Plaintiff were consistent with suffering an aggravation of an underlying degenerative change in his lumbosacral spine.  He subsequently saw him in February 1994 and expressed the view that he believed he could do the work of an Artificial Inseminator but would complain of significant pain whilst performing this work.  He saw him again in December 1994 and confirmed his earlier diagnosis and that the patient's lower back remains symptomatic and that every time he tries to return to a reasonable level of activity, his back becomes painful.  On this occasion, he expressed the view that

	"I would regard this man as unsuitable for any job involving heavy lifting activities and I advised him to limit his activities to light work in the future.  ....His back is likely to remain symptomatic for the foreseeable future."

	Subsequently, in January 1996, he expressed the view

	"that this man is unfit for the type of work that he was performing with the level of disability in the region of 10% overall."  

	He was subsequently seen by Mr. Frank McManus, another orthopaedic surgeon who noted, on examination, that he appeared to have one quarter of normal range of movement in his back though he had no evidence of muscle spasm.  In his opinion,

	"this man has classical symptoms of symptomatic degenerative disease of the lumbar spine.  These symptoms would appear to have been precipitated by the accident at work when he was kicked by a cow.
	In my opinion, however, the long term prognosis is reasonably satisfactory.  When these symptoms arise spontaneously, as they do in the majority of people, then the prognosis is reasonably satisfactory, insofar as the older one becomes less disabling the symptoms are and they eventually settle down to all intents and purposes.  
	In my opinion, one of the major difficulties in this clinical situation is that the patient himself, Mr. McDermott seems more than reluctant to actively rehabilitate himself.  I had great difficulty getting this man to understand the concept of rehabilitation.  I personally do not think he would ever aggressively rehabilitate himself and I therefore feel his disability, as it stands, will persist for the immediate future and then gradually improve as one would normally expect under other circumstances.........  I cannot anticipate this man returning to work as an Artificial Inseminator 
	(a)	because he has got a pain in his back
	(b)	because he will not rehabilitate himself aggressively
	(c)	I think basically he would be quite apprehensive doing this sort of work again."

	He was seen by Mr. F. G. Kenny, orthopaedic surgeon on behalf of the Defendant who reported in March 1993

	"this man got a very severe kick which has caused him a great deal of discomfort and bruising in the muscles to the left of his lumbosacral area.  I feel that this is a soft tissue injury and should heel up in the not too distant future."

	He noted that it was taking an unusually long time to do so but would expect him to continue to improve and to make a full recovery.  He ultimately saw him on the 28th May, 1996 and records

	"on examination - he was a miserable man who very definitely indicated to me today that his main problem was beneath his left rib cage in the area of the dorsal upper lumbar spine to the left side.  He is very tender in this area but he had very little movement of his lumbar spine, indeed, I could not illicit movement beyond 30º."

	"Impression - once again it amazes me that this man is still complaining bitterly of problems with his back which was caused by a direct blow in the area of his lower chest and upper lumbar area."  

	The case made by the Plaintiff is that he had to take early retirement from a job which was undoubtedly secure employment to age 65 and pensionable thereafter, because he was quite unable to do it and was showing no signs of recovery.  He makes the case that consequent upon his being obliged to give up this job, he is sustaining a very substantial loss of wages and that even on retraining to a secondary type job, he would still suffer considerable loss.  Further, it is noted that at his age, he would find difficulty in finding employment in another category of work.
	In my opinion, there is no evidential foundation that the injury he sustained would have such long lasting consequences.  On the contrary, all the medical evidence would indicate that he should be back at work but he was personally claiming that he could not do this work.  The suggestion is that this is basically in his own psychology but I do not think that any person would simply abandon ship because they think they are not fit to do the task.  I am not satisfied that that case has been made out in this instance.  Accordingly, I propose to award
(a)	general damages to date at £24,000.00
(b)	general damages in the future in the sum of £10,000.00 to cover a period of approximately two years within which I accept that he will have a degree of pain but that this will be a reducing matter as he becomes more active.
	With regard to special damage, I am advised by Counsel that the agreed special damages amount to £1,487.50.  In addition to that, Counsel has advised that it is agreed that he has suffered an actual loss of earnings to date of £44,824.00.  On the assumption that that figure is net of tax, I would award the Plaintiff those two sums by way of special damages to date.  
	I am further advised by Counsel that it is agreed that if the Plaintiff were in employment today with his former employers, he would be in receipt of £250.00 per week net.  This works out at £12,000.00 per annum and I will grant him a sum of £18,000.00 being one and a half years loss of future wages.  After the expiration of that period, I would expect that he should be capable of resuming active gainful employment.  Accordingly, I award him a total sum of £83,564.77 and the costs of the proceedings.

_____________________
FEARGUS M. FLOOD