Neutral Citation no. [2001] NIQB 7
Ref:     
COGC3351

 
Judgment: approved by the Court for handing down
Delivered:
16.02.2001
(subject to editorial corrections)

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
QUEEN’S BENCH DIVISION
 
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BETWEEN:
 
SINEAD THERESA MAGILL (A MINOR) BY ROBERTA MAGILL,
HER MOTHER AND NEXT FRIEND
 
Plaintiff;
 
and
 
1-2-3 HOUSE COMPANY LIMITED
 
Defendant.
 
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COGHLIN J
            I gave judgment upon an ex tempore basis in relation to liability in this case on 31 January 2001 when I held in favour of the plaintiff upon the ground that she had established negligence on the part of the defendant in relation to the supervision of the plaintiff as a member of a playgroup and I made no finding in respect of contributory negligence.  I reserved my decision in relation to damages.  
Damages
            It is alleged that the plaintiff, who is twelve years old at the date of the hearing and seven-and-a-half years of age at the date of the accident on 2 August 1996, suffered a dislocation of her left elbow together with some damage to the ligaments of her right ankle.  The plaintiff, who had fallen from the lower branches of a tree, immediately complained of severe pain and discomfort in the region of her left elbow and the real issue was whether the plaintiff had established, on the balance of probabilities, a causal connection between the injury to her right ankle and the accident.  In the course of determining this issue I have taken the following into account:
(i)         The medical reports and original notes and records
            The plaintiff attended the Accident and Emergency Department of the Royal Belfast Hospital for Sick Children within approximately two hours of injury.  The notes record that she was suffering from a painful and swollen left elbow but “no other injury”.  The plaintiff was admitted under the care of Mr Cowie FRCS and she underwent a manipulation under anaesthetic to reduce the dislocation.  The plaintiff was discharged on 3 August 1996, the day following the accident.  The discharge summary sent by the hospital to the plaintiff’s GP made no reference to any injury other than the dislocated left elbow and the hospital notes indicate that she was comfortable on discharge.
            Mr Cowie FRCS conducted a review of the plaintiff’s case from the case notes and he recorded that the plaintiff was reviewed on 12 August when she was also complaining of pain in her right ankle.  Mr Cowie noted that there was no history as to how she received this injury.  He said that he was “not certain” that it was related to the accident because of the previous history from the casualty notes and the in-patient notes and it appeared that the injury had happened between the original date on 2 August and the review appointment on the 12th.  On 17 December 1996 Mr Cowie examined the plaintiff in the presence of her mother and, at that time, he noted that the plaintiff did not recall the actual details of the fall and was unable to say whether she had landed on both feet and fallen over onto her out stretched left arm or whether she had fallen directly onto this limb.  On 16 November 1999 Mr Cowie wrote to the plaintiff’s solicitors and concluded his letter in the following terms:
“From these notes the problem would be is that the child complained of no pain in her right ankle at the time of the fall.  It is not unreasonable that the elbow was sore that she ignored the ankle and it only came on once the elbow was relocated and she started to mobilise again.  One would presume that when she fell off the tree stump she went over on the right ankle and annoyed that area and I presume this is how the injury was obtained.  With the MRI scan findings it certainly would appear that she has had a chronic ligamentous injury and my opinion about her long term is unchanged with these notes.”
 
(ii)        The medical evidence
            Mr Cowie FRCS was called to give evidence on behalf of the plaintiff.  In his direct evidence Mr Cowie confirmed that the original notes did not mention any injury to the plaintiff’s ankle and he stated that he connected the injury with the accident because there was “no other way of explaining the injury to her ankle”.
            In cross-examination by Mr Ringland QC, Mr Cowie agreed that the plaintiff appeared to have suffered a significant ligamentous injury to her ankle and that, in such circumstances, he would have expected immediate pain at the time of injury.  He was prepared to accept that, upon occasions, pain from one injury might serve to “mask” pain from another injury but agreed that, when discharged, the elbow would have been “relatively painless” and the records indicated that the plaintiff was “comfortable on discharge”.  Mr Cowie stated that swelling would develop within twenty-four hours of this type of injury and he would have expected the plaintiff to notice pain when she got out of bed and began to walk about and, ultimately, out of the hospital.
(iii)       Other witnesses
            Corina Magill, the plaintiff’s sister, gave evidence that, after Sinead was discharged from hospital the family went to Donegal for a holiday and the day after they arrived, which was the day of discharge, she heard Sinead complain of pain in her ankle which she saw was swollen.  In cross-examination Corina told Mr Ringland QC that when the family arrived in Donegal on the evening of Sinead’s discharge from hospital, there had been no complaint about Sinead’s ankle.
            The plaintiff herself gave evidence and, in cross-examination, she maintained that she had not been aware of any problem with her ankle on the day of the accident and that the first time she became aware of any difficulty was the day when she “woke up” in Donegal.  She agreed that, upon the family’s arrival at Donegal, she had walked to and from the car and had walked around to examine the cottage accommodation.  At that time she had not felt even a “twinge” from her ankle.
(iv)       The mechanism of the plaintiff’s accident
            The plaintiff herself had no clear memory of her fall, but Mr Fenton, who was an assistant after school’s officer at the time of the accident, saw the accident.  According to Mr Fenton:
“Sinead fell with her elbow hitting the ground first – her feet were towards me”.
 
This evidence was not developed by the plaintiff’s senior counsel, Mr Comerton QC, nor was it explored in cross-examination by Mr Ringland QC.  In the circumstances, I do not consider that it would be fair for me to place any great deal of weight upon this aspect of Mr Fenton’s evidence.
            I have given careful consideration to this issue bearing in mind, particularly, that the plaintiff is, and was at the time of the accident, a minor.  I am also very much aware that no alternative trauma, apart from the fall from the tree, has featured in the evidence.  However, having done so, I have not been persuaded on a balance of probabilities that the plaintiff has established a causal connection between the swollen and painful ankle discovered on 4 August and the accident which befell her on the  3rd.  Indeed if anything, the evidence of the plaintiff and Mr Cowie FRCS, in my view, tends to disprove such a connection.
            Accordingly, I propose to compensate the plaintiff only in respect of  the dislocation of her left elbow.  There is no doubt that this was an extremely painful and frightening injury for this young girl and, as I have already noted above, it required manipulation under anaesthetic.  The plaintiff wore a plaster of Paris on her elbow for approximately four weeks and then she was provided with a broad arm sling.  Gentle mobilisation of the left elbow started and the joint had virtually recovered by December.  According to Mr Cowie FRCS, the elbow would have been “relatively painless” once the joint had been re-located.  There does not appear to have been any long term consequence of significance resulting from the elbow injury.
            In the circumstances, I award the plaintiff £9,000 by way of damages.  

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
QUEEN’S BENCH DIVISION
 
------------ 
 
BETWEEN:
 
SINEAD THERESA MAGILL (A MINOR) BY ROBERTA MAGILL,
HER MOTHER AND NEXT FRIEND
 
Plaintiff;
 
and
 
1-2-3 HOUSE COMPANY LIMITED
 
Defendant.
 
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JUDGMENT

 
OF

 
COGHLIN J

 
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