O'Longaigh v. Minister for Finance [2000] IEHC 48 (14th April, 2000)

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1. The Plaintiff is a 39 year old member of An Garda Siochana and was at all material times attached to Anglesea St. Garda Station Cork. He is a married man with 3 children. Following his schooling, which concluded with the Regional College, he entered An Garda Siochana in December of 1982 and thereafter served in a number of different locations until he was posted to the above station in the city of Cork.

4. The Applicant was initially refused leave to seek compensation under the provisions of the aforesaid Compensation Acts, by decision dated the 6th day of January, 1997. Following the institution of proceedings by way of judicial review this leave was granted to him by letter dated the 22nd day of April, 1998 in accordance with the Acts.

6. In support of his application the Applicant filed an Affidavit dated the 26th day of June, 1998 deposing as to the events which occurred resulting in serious injury to him. In that Affidavit he also tendered exhibit "A" 9 containing medical reports named and dated as follows:-

7. Dr. Michael Molloy dated the 5th of October, 1992, Dr. Con Murphy dated the 19th October, 1992, Mr. J.C. Marks the 18th February, 1993, Dr. Michael Molloy the 1st June, 1993, Mr. J.C. Marks the 11th March, 1994, Mr. J.C. Marks the 11th November, 1994, Dr. Michael Molloy the 24th November, 1994, Dr. Con Murphy the 8th December, 1994 and Dr. Michael Molloy the 28th November, 1997.

10. One of the essential issues in the case concerns an injury sustained by the Plaintiff on the 31st August, 1999 when, using a small set of steps for the purposes of clearing a gutter over his front door he fell from same causing himself serious injury (the Second Accident). The Plaintiff alleges that this fall was caused by virtue of a weakness in his right leg which existed from the first accident sustained on the 25th June, 1992.

11. The Plaintiff gave full evidence in relation to the cause of his injuries suffered on the 25th June, 1992 and I accept that evidence and further accept that he suffered a frightening experience and sustained injuries as detailed in the medical reports that is to say that he injured his right hip, low back and right shoulder.

Lumbar spine: movements good with discomfort in forward flexion and pain radiating down the back of his right leg on that moment. Lateral extension uncomfortable. Tenderness at L3/4/5 along the para-spinal muscles, most marked on the right side. Straight leg raising was reported at 80 ⁰ on both sides. No muscle wasting, weakness, reflex or sensitivity changes in either of the lower limbs."

"He had sustained a soft tissue injury to his right shoulder which continues to be very painful and will continue to do so for months. However his main problem is his back which is suggestive of a lumber disc lesion. Because of the seriousness of this I have referred him to Dr. Mick Molloy for further treatment and investigation.

"he saw the Plaintiff in December 1992 at the request of the aforesaid Dr. Con Murphy. This neurosurgeon again saw the Plaintiff at the request of Dr. Molloy on the 18th November 1993. The Plaintiff's further history taken at that date was that he was much improved in the early part of 1993 and was back at work in the spring although he never got back unto the motorcycle. He never lost the dead, numb feeling in the right leg and subjectively he felt that the leg remained slightly weak. He could not sit for long periods. In October, he developed recurrent back and right leg pain going down to the foot, principally in the big toe. His walking distance is now limited to a quarter of a mile and he is back on analgesics.

The previous CT scan had in the neurosurgeon's view shown only relatively small disc bulges at both L4/5 and L5/S. He therefore had the Plaintiff re-scanned on the 29th November 1993. At L4/5 he had a generalised bulge of the disc but there is more obvious encroachment on the left exit foranen rather than on the right side. At L5/S1 there is very little to note.

Given that he (the Plaintiff) has little in the way of hard neurological signs and that the CT scan does not show very obvious right sided nerve root compression I really don't feel that surgery stands any more than a 50% chance of making him substantially better. I really don't feel that I should be offering to operate on him at this stage but I would gladly review him again in February in (of 1994) and reconsider the matter if this current episode fails to settle".

"he moved very freely without obvious discomfort. There was only mild impairment of lumbar flexion. Other lumber spine movements were normal. Straight leg raising was 80 ⁰ right and 90 ⁰ left. The sciatic stretch test was negative on both sides. The power and tendon reflexes were normal in both legs. There was a rather patchy subjective impairment and pen prick sensation in the right leg which it did not conform well with any known anatomical distribution of sensory loss. Mr. Marks reviewed a lumbar CT scan which in his opinion showed relatively minor abnormalities of the lowest two lumber discs at L4/5 and at L5/S1. At both levels there was evidence of bulging of the annulus or outer casing of the disc with some encroachment on the nerve root exit foramina on the right side at both levels. As a result he would judge that there was no actual prolapse or slip of central disc material, merely annular bulging. He concluded that surgery was most unlikely to help his symptoms. He recommended a course of physiotherapy and an exercise program to relieve his symptoms."

"based on the history it would seem obvious that the accident in June of 1992 was the cause of his neck and right shoulder symptoms. It is perhaps less certain that his low back pain and right leg pain are due to the accident although the fact that his back became locked in flexion only a week after the accident makes it seem relatively certain that this was the cause of his symptoms. In my opinion, he is suffering from some damage to the annulas or outer casing of the lowest two lumber discs rather than a true disc prolapse. This is a very common problem in the general population and, in the large majority of patients, symptoms settle spontaneously over a period of a few months. Physiotherapy and an exercise program will sometimes speed up the resolution of symptoms. There is no indication for surgery at present.

19. Lumbar spine: good range of movement in all directions. Straight leg raising on the right 75 degrees and on the left 90 degrees. Muscle, tone, power, reflexes of the lower limbs normal. Some diminished response to pin prick in the outer aspect of the right ankle and foot. No definite motor weakness. At that stage he concluded that the Plaintiff's symptoms persist in the back and down his leg and at present he was on light duties and his scan shows as reported by Mr. Marks aforesaid. The Plaintiff was unable to return to motor cycle duties.

"Thanks for your letter of the 9th March 1994. I feel that you are asking me to make precise predictions about the outcome of degenerative lumbar disc disease, something which is almost impossible. Some of my patients get back to full activities, both at work and in their sporting lives. Others are left badly incapacitated by back ache and a feeling of weakness in the low back. When I last saw him on the 10th February 1994, he was symptomatically improved compared to our previous meeting in November 1993. He was off all pain killers and his level of pain was generally much diminished. If he continues this improvement, it may well be that he will get back to work as a motor cycle garda. I doubt that he will become entirely pain free for another two years but, if he is prepared to tolerate a small amount of pain, I suspect that the chances of him getting back to his old job are better than evens."

"I last saw this man on the 10th February 1994. I enclose my letter to his G.P. following that visit. I also enclose a copy of my letter to Dr. Molloy of the 21st June 1994. Dr. Molloy has written to me, requesting that I consider Mr. O'Longaigh for disc surgery. I felt that such surgery was not warranted in this man's case.

My final conclusion about this Plaintiff is that he is likely to have ongoing symptoms referable to his lumbar disc disorder for the foreseeable future. The severity of his injury and his degree of incapacity are both moderate rather than severe. I would expect some continuing improvement in his symptoms with the passage of time but he is unlikely to become entirely pain free for the foreseeable future.

22. Some weeks later, on the 24th November 1994 Dr. Molloy furnished a further medical legal report to the Plaintiff's solicitor. Therein he sets out details of two examinations conducted by him dated June 1994 and the 16th September 1994.

23. Lumbar spine: movements in the lumbar spine were significantly restricted with para-vertebral muscle spasm and a straight leg raising of 75 on the right and 85 on the left. There was however no significant weakness but some slight diminished sensation of the L5 distribution on the right side.

25. Lumbar spine: good movement. Straight leg raising was normal but somewhat restricted on the right at 75 degrees. There was no muscle wasting, weakness, reflex or sensory changes in either of the lower limbs. He did mention tingling in either the left or right ankle but there was no sensory findings on clinical examination.

"This man's symptoms in the back and down his legs persist and though he has improved, has still not recovered and has seen a neuro-surgeon who felt that surgery was not indicated for him and now that he has improved a little I feel this is the case. There is no guarantee that surgery would improve the situation to any significant degree for him and the importance of his own exercise programme which includes swimming and walking and exercising has been emphasised. He has a chronic back problem and will always have to be careful with it in the future and should the situation change or worsen or indeed should his symptoms become disabling he may need physiotherapy, pain relieving drugs or indeed surgery. At the present time however surgery is not considered necessary for him though he will have to exercise caution at all times and should be able to carry out his work at present with care and caution at all times. In view of the history of his present complaint it is likely that he will get symptoms intermittently into the future but one would hope for a good long-term prognosis though this cannot be guaranteed in his case."

"By now you are familiar with Fachtna O'Longaigh's history. He is having constant pain in his lower back. This is due to disc problems. He is attending Dr. Charles Marks, neuro-surgeon, and Dr. Michael Molloy, Rheumatologist on a regular basis. They are of opinion that he is unsuitable for surgical intervention.

This is an extremely serious situation for Fachtna as he is in constant pain and has not made any progress since the accident. He is also on DF118 for pain. This is a serious pain killer and it worries me that he still requires them and will in the future. I don't hold out much hope for him returning to his previous duties; I feel he will only be fit to work indoors."

28. There is a further medical legal report dated the 28th November 1997 from Dr. Molloy to the Plaintiff's solicitor based on his previous notes and reports. In it he concludes by stating that he can confirm that the event which resulted in his injury, at least one of them as described, was a significant one and would not be described by him as minor injury or event.

29. This concludes the medical evidence adduced on behalf of the Plaintiff to describe his condition up to the 8th December 1994 bearing in mind that Dr. Molloy's report of the 28th November 1997 was issued without examination. I shall refer to the Plaintiff's evidence of his situation from 1994 to August 1999 when he sustained the second accident in due course.

30. The Defendant submitted two medical reports dated the 2nd February 1996 and the 31st July 1997 dealing with the consequences of the accident on the 25th June 1992. These were furnished by Mr. G. McCarthy consultant physician, who having dealt with the medical history of the Plaintiff, turned to the injuries as follows:-

31. He (the Plaintiff) sought treatment from Dr. O'Regan who happened to be in the Garda Station in Cork at the time. She referred him to the emergency room of the Regional Hospital Cork. His injured parts were x-rayed. No bony injury was detected. His injuries were eventually followed up by his G.P. Dr. Murphy. He in turn referred him onwards to Dr. Molloy, consultant Rheumatologist in Cork, because he was still complaining of severe pain in his lower back area and in the right shoulder area and in the right leg.

32. Progress: Dr. Molloy has been seeing him for the last four years intermittently. An M.R.I. scan was performed on his instructions, which revealed bulging of disc at L4/L5 and L5/S1. Dr. Molloy had him examined by a neuro-surgeon, who decided that surgery would not help his condition. His back pain has improved considerably from the time of the incident, up to the moment of formulating this report. However it is subject to exacerbations at varying times of the year. He still complains of permanent numbness down his right leg and he still complains of pain intermittently in his left heel. It is my opinion that Garda O'Longaigh sustained minor disc injury to the lumbar lower back area, which was the cause of his lower back pain and the numbness of his right leg and probably the intermittent pain of his left heel. He also complained of pain on movement of his right shoulder immediately after the accident. This was also treated by Dr. Molloy. From what Garda Fachtna O'Longaigh informs me, it is my opinion that he strained a tendon called Supraspinatus tendon of the right shoulder which is a tendon of a muscle which participates in right shoulder movement. He still complains of "clicking" on movement of the right shoulder, but he does not have pain. This "clicking" is basically just adhesions of the lining membrane of the tendon and is of no serious consequence.

"It is my opinion that Garda O'Longaigh sustained mild disc damage to the lower lumbar area. With care and maintenance of physical fitness and activities this should cause in the long term very little pain or discomfort to Garda O'Longaigh. It is my opinion that Garda O'Longaigh will be able to continue in his occupation as a garda. At the present moment he is in sedentary indoor duties. It is my opinion that the present limitation of activities will greatly diminish over a period over the next two years.

The second report from Mr. McCarthy is dated the 31st July and is headed "Garda Surgeon's final medical report". He states that physical examination of the Plaintiff on the 31st July 1997 was essentially normal apart from some slight limitation of flexion of his lumbar spine. His straight leg raising test was normal. He had a bazaar sensory loss over the right thigh area not consistent with any distinct nerve root distribution for sensation.

During the formation of my initial report on, (the Plaintiff) he did not emphasise the severity, duration and frequency of pain that he had suffered from his injury and the adverse impact of same on the quality of life and his attendance at work. On my subsequent examination of (the Plaintiff) I enquired in depth into these aspects of the pain he had suffered, and on consideration of same I came to the conclusion that this man's injuries were serious relative to the Garda Compensation Act and I amended my report accordingly.

34. Returning to the evidence of the Plaintiff given to me on the 27th March 2000, I observed the following. The Plaintiff gave an extremely detailed account of the events of the 25th June 1992 in which he greatly expanded upon the information contained in his affidavit aforesaid. He had an acute period for three weeks with his neck and shoulder and he detailed the problems with his back and I note that he went on to discuss the situation of his leg at every opportunity. He said the sensation in his leg was one of a yanking and drilling sensation. He thinks that it was sometime in or about October 1993 that he had intermittent pain on and off and he had a deadness and numbness in the leg which manifested itself at that time. He did some exercises and no swimming.

36. He considered he would have a difficulty in carrying out his motor cycle duties, in effecting an arrest, in being unable to bend or twist, in being unable to carry out household maintenance on his car. About this time he changed his car to an automatic. He had driven about 3,000 miles a year with his manual gear and was able to increase this to a figure of 13,000 miles a year driving the automatic. He had no sporting activity other than the cinema and walking. He engaged in two 6 mile runs. As of August of 1999 he thought he was getting better.

37. He then detailed a number of situations when his leg went from under him. On one occasion it was in Achill when he fell at the boot of his car. On a second occasion he had a similar difficulty at the garda station and in addition to that he had a couple of twisting experiences at home.

39. An analysis of this document indicates that in the five and a half months from the date of the first accident to the end of the year the Plaintiff attended for light duties for about seven weeks. For the same period he was absent for some 14 weeks. I note that he had reported for duty on the day of the assault complained of.

44. During the year 1997 he attended for light duties for some 45 weeks and was absent for the remaining 7 weeks. There may be some discrepancy on these two figures as the dates of absence referred to would indicate that he was absent for 3 weeks. In these circumstances I am treating him as having worked for 49 weeks.

46. During the year 1999 (up to the Second Accident) he attended for light duties for 20 weeks and was absent for 7 weeks. The record ends on the 26th July 1999. There is no record of work from the 26th July 1999 to the date of the second accident.

47. I stress that the above is a general, if incomplete, analysis of the Plaintiff's attendance record since the first accident and is therefore not definitive, nor does it take into account the annual leave the Plaintiff would have been entitled to. Nonetheless, as it is agreed evidence, I am treating this as significant.

48. As will be seen from the foregoing the Plaintiff's attendance record at work began to improve substantially from the year 1994, 1995, 1996 and 1997. It deteriorated in the year 1998 and 1999. According to the Plaintiff's own evidence as of the month of August 1999 he believed he was getting better.

"Lumbar spine: good range of movement in all directions. Straight leg raising 80 degrees on the left and 70 degrees on the right. There was no evidence of weakness or wasting of muscles in that right lower limb but there was some slight diminished response to pin prick on the L5/S1 distribution onthat side."

50. As of that stage Dr. Molloy says the Plaintiff needed further evaluation as his symptoms have not settled and the question of surgery still existed and the need for further evaluation was there. He had arranged for the Plaintiff to have an EMG carried out and also arranged for an M.R.I. scan which he comments on. His conclusion as of that date is as follows:-

"The Plaintiff's symptoms in the back and right limb persist. He has never got back to his pre-accident level of activity and has not gone back to full duties as a member of An Garda Siochana. The Plaintiff is concerned about his short-term future in terms of pain in the back and leg and his long-term future as a garda because of the persisting symptoms and his inability to go back to full time duties. Further surgery would have to be re-considered as a possibility. He has chronic on-going problems and is unlikely to make significant recovery at this stage and may well be a candidate for surgery sooner rather than later."

51. He therefore felt that there was a grave doubt about the Plaintiff's ability to continue his work. He then comments upon an M.R.I. scan dated the 12th May 1999 which showed some disc bulging at L4/5 but no significant nerve root or chord compression. At L5/S1 there is slight herniation to the right at this level with only mild pressure on the thecal sac with little change to the previous examination. The M.R.I. scan suggests that surgery is not a priority at the moment and management would be conservative.

52. I now turn to the Plaintiff's second accident which occurred on the 31st August 1999. In evidence the Plaintiff informed me that he brought out a small set of steps, possibly four in number, and placed them outside his front door with the intention of clearing the gutter above the door. The gutter was "just out of hand's reach". He commenced to climb the steps and on the second step his leg went from under him. It gave way and he fell helplessly and broke his wrist and seriously displaced his right hip. According to the history taken by Mr. Maha Lingam, Orthopaedic Surgeon,

"This gentleman alleges to have fallen outside his front door on the 31st August 1999 when his right leg went from under him. He tells me that he fell against the wall and subsequently pushed himself back, falling on the brick paving. In the process he sustained an injury to his right hip and right wrist, he was admitted under my care on the 31st August 1999 in Cork University Hospital."

"This man relates that he fell outside his front door. As he attempted to climb up some steps, his right leg 'went dead', causing him to stumble and fall against a wall. He then fell backwards injuring his right wrist and right hip. He was unable to wait there. He was taken to CUH where he was admitted under Mr. Maha Lingam's care."

54. However one views the history of how the accident occurred there is no doubt that it did in fact occur on that date with a serious hip injury and wrist injury. The first question for consideration by the Court is whether this second accident was caused as a result of the injury sustained by the Plaintiff in the first accident.

"It is unusual that an otherwise able bodied 37 year old should fall on steps, causing the type of fracture which Mr. O'Longaigh sustained. It is reasonable therefore to accept that he must have had some level of inco-ordination associated with his leg symptoms. It is not possible to quantify the contribution of his leg symptoms to the cause of his fall. There are no objective measurements which can be applied."

58. As for the Plaintiff himself there was no mention of weakness in the right leg, as distinct from pain radiating down the leg until three to four years post accident. The Plaintiff stated that he had not noticed this until the fall in Achill. It was also put to the Plaintiff that neither the M.R.I. scan of 1996 nor the second one in 1999 offered any basis for the existence of such weakness as would cause him to lose control on the steps. This in-contra distinction to suffering a radiating pain, which I would describe as a sciatic pain, which would not so cause him to lose control of his leg.

59. Having regard to the Plaintiff's evidence as to his social and sporting lifestyle up to 1998 and his work record as set out, and the failure of any of the medical reports to deal with such a complaint and also having regard to the evidence of Mr. Maha Lingam and Mr. Barry, I am unable to conclude, on the balance of probabilities that the second accident is related due to injury sustained in the first accident.

60. I therefore propose to compensate this Plaintiff for the injury sustained in the first accident. In doing so I note that he had to maintain judicial review proceedings in order to be enabled to maintain these proceedings. I have no doubt that the refusal followed by the Court action must have greatly aggravated the Plaintiff and the upset which he clearly suffered in this regard will be taken into account by me. I am strongly of the view that the delay is enabling the Plaintiff to prosecute his claim for compensation in relation to the first accident was a major cause in precluding him from making a full recovery in the years '97, '98, and '99.

62. I therefore conclude that he had substantially recovered from his injuries by 1995. On the medical evidence I do take the view that these were not serious injuries i.e. the back injury was one that is suffered by the general population. However the refusal to grant the Plaintiff leave to maintain these proceedings clearly aggravated the situation.

63. As to the position from 1998 thereon I have read Dr. Molloy's report of the 14th May 1999 and conclude that Dr. Molloy is very sympathetic to the Plaintiff but the other medical reports do not seem to support a case that, by virtue of the injury suffered in the First Accident the Plaintiff would be unfit for his work for the rest of his life.

67. As a consequence of this decision it is clear that the Plaintiff will be entitled to some ancillary headings of damage such as loss of over-time and/or promotion. I propose to afford Counsel an opportunity of considering the position and I will then hear such submissions as they wish to make on those matters. Agreed Special Damages in the sum of £51,500.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Longaigh v. Minister for Finance [2000] IEHC 48 (14th April, 2000) URL: http://www.bailii.org/ie/cases/IEHC/2000/48.html Cite as: [2000] IEHC 48

High Court of Ireland Decisions

O'Longaigh v. Minister for Finance [2000] IEHC 48 (14th April, 2000)