Neutral Citation Number: [2016] IEHC 338
THE HIGH COURT
[2014 No. 406 P.]
BETWEEN
JULIE GREENE
PLAINTIFF
DEFENDANT
JUDGMENT of Mr. Justice Barr delivered on the 9th day of June, 2016
Introduction
1. The plaintiff was born on 1st August, 1961. She is separated and has three children. She is employed as a care worker, working with children with autism. On 15th August, 2012, she alleges that she slipped on a wet floor in the Dunnes Stores shop in Ennis. As a result of the accident, it is alleged that she suffered injury to her right shoulder and lower back. The shoulder injury settled fairly quickly, but the injury to the lower back has persisted down to the present time. The defence filed by the defendant puts liability and quantum in issue.
Liability
2. The plaintiff’s evidence was that on 15th August, 2012, at approximately 10:30hrs, she had purchased items in the defendant’s shop premises. While proceeding towards the exit doors, her feet went from under her due to the fact that the floor, just inside the entrance door, was wet. The plaintiff stated that she could see footprints in the wet surface of the floor.
3. The plaintiff stated that the weather had been very wet that day. She stated that it was clear that rainwater had been brought into the shop on the soles of peoples’ shoes. The plaintiff stated that she slipped on an area of flooring just inside the entrance/exit as shown in photograph No. 4 of the engineer’s book of photographs.
4. The plaintiff stated that there was no mat or warning signs in this area.
5. The defendant, through its counsel stated that it did not stand over the absence of the mat. In this case, there was no record of the accident at the defendant’s premises. So while a full defence had been filed, the only issue was whether the accident happened.
6. The plaintiff stated that immediately after the fall, an elderly lady who was coming into the shop came to her assistance. Then a female and a male member of staff came to her and brought her a chair to sit on and gave her a cup of water and a bandage to place on a cut to her leg. She stated that they gave her reassurance that everything was all right. The plaintiff stated that she told the members of staff that the floor was wet due to the rain. She said that they agreed with that.
7. The plaintiff stated that she remained sitting for approximately 30 minutes. Then a member of staff escorted her to her car. The plaintiff could not explain why the defendant had no record of the accident. She said that the staff were definitely aware of her fall.
8. When the plaintiff proposed to call Mr. Foy, a consultant engineer, the defendant’s counsel stated that it was accepted that if the floor was wet, the floor was slippery and dangerous. It was also accepted that a mat should have been put in place.
9. Notwithstanding these concessions, the plaintiff’s counsel thought it prudent to call Mr. Foy. The witness stated that he had done a micro-surface roughness test on the wood effect vinyl floor covering just inside the entrance doors. The micro-surface roughness is measured in microns. This gives a reading in microns which is designated as the Rz value. On this area of flooring, the average Rz value was 9 microns. Mr. Foy stated that the UK Slip Resistance Group categorised slip potential as follows: a Rz value of less than 10 microns, has a high slip potential; a Rz value of 10 to 20 microns, has a moderate slip potential; and a reading above 20 microns, means the floor has a low slip potential. Thus, the floor surface at the locus had a high slip potential when wet.
10. In these circumstances, Mr. Foy was of the view that if it was raining, there should have been a mat placed just inside the doors as shown in his photographs No. 3A, 4, 5 and 6. The floor was very slippery when wet, hence the need for the mat when it was raining outside. On a wet day, the area just inside the doors would need constant supervision to ensure that the mat was in situ and that the surrounding area was kept dry. Given the absence of the mat, he was of opinion that the area was unsafe on the day of the accident.
11. Mr. Foy was not cross examined by the defendant.
12. The key issue for determination is whether the locus was in the condition as described by the plaintiff on the day of the accident. Having observed and listened to the plaintiff, I am satisfied that she has given a truthful and accurate account of what happened on the day of the accident. I accept her testimony that it had been raining on the day in question. I accept her account that she slipped as she approached the exit doors, due to the fact that there was rain water on the wood effect vinyl floor covering. I accept her evidence that there was no mat in situ.
13. I also accept the plaintiff’s evidence that this accident was brought to the attention of two members of the plaintiff’s staff, who came to her aid after the fall. Those members of staff got the plaintiff a chair and gave her reassurance and a bandage, while she sat down for approximately 30 minutes, before escorting her to her car. Why no written record was made of the incident, remains a mystery. However, I am satisfied that the plaintiff’s accident was due to the negligence of the defendant in failing to place a mat just inside the entrance doors, having regard to the weather conditions pertaining at the time. In these circumstances, the plaintiff has established liability against the defendant.
Quantum
14. The plaintiff stated that after the accident, she had bruising and cuts to her right side, which healed quite quickly. Her main problem was her lower back. She stated that after the accident, she had severe pain in this area. She never had back pain prior to the accident.
15. The plaintiff stated that she still experienced back pain on a fairly constant basis. She manages it with anti-inflammatories and painkillers. The pain can ease off for a while, but it returns later.
16. Sitting for any length of time is uncomfortable. She cannot do any sudden bending as this will cause a severe pain in her back. Her physiotherapist has given her a support belt, which she wears frequently, particularly when doing housework. The plaintiff’s job involves desk work and moving around. She is limited in how long she can sit. She has had a significant amount of physiotherapy treatment, initially a number of times a week, and subsequently she had physiotherapy treatment in Limerick. Her driving is limited due to pain. She can manage up to an hour in the car. On occasion, she needs to take anti-inflammatories.
17. Prior to the accident, the plaintiff had done yoga, but she has not returned to it yet. Mr. Rice, the Orthopaedic Surgeon, has said that she can try returning to it. The plaintiff stated that housework, including hovering, and emptying the dishwasher was difficult due to low back pain. She takes medication to help her get through it. She bought an orthopaedic mattress which is helpful. She can walk approximately one to one and a half hours at a time.
18. As to her present condition, the plaintiff stated that there had been no change in the last year. She is concerned about the future. The constant pain is a problem. Her doctors have said that she might need injection treatment.
19. In cross examination, it was put to the plaintiff that she first saw her GP after the accident on 2nd October, 2012. The plaintiff agreed that that could be correct. She waited for the bruising to settle and then went to her GP. She accepted that the bruising to the hip and shoulder cleared within approximately a week to ten days. She went to her GP due to low back pain. He recommended physiotherapy treatment. She accepted that by the end of October, she could walk up to one hour. She stated that she could walk that distance within approximately three to four weeks of the accident. Her GP was optimistic about her recovery at that stage.
20. She stated that in the past few months, she had returned to her GP due to the side effects of the medication that she was taking. Her doctor changed her medication. She sees her GP every couple of months. She last saw her in February 2016. Her doctor gives her prescriptions for medication.
21. The plaintiff stated that she came under the care of Mr. Rice, Consultant Orthopaedic Surgeon. At that time, she had done exercises in the form of swimming, approximately once per week. She had tried yoga but found it painful. The plaintiff confirmed that she did not miss any time from work. She accepted that she had a full range of movement when seen by Dr. Spillane on behalf of the defendant in May 2013. However, she told him that she had constant lower back pain. She could not do yoga, or drive for longer than one hour. She accepted that initially the doctors thought that her injuries would settled quickly. She agreed that now she could walk for one to one and a half hours, but she could not do hiking, which she had done prior to the accident.
22. The plaintiff accepted that when she saw Dr. Spillane in March 2014, she complained of low level soreness in the lower back area on the right side. It was a background pain which was aggravated by sudden bending. She accepted that she had not seen her GP or had physiotherapy recently.
23. She had been reviewed by Dr. Spillane on 6th June, 2016. Her condition had remained the same. She can do housework, as long as she wears her support belt. She hopes to be able to return to yoga as soon as she locates an appropriate teacher or trainer.
24. The plaintiff stated that she had to consider having injection treatment. She had not been referred for that yet. She had to think about it.
25. Evidence was given by Mr. John Rice, FRSCI. He stated that he first saw the plaintiff on 4th November, 2013, which was approximately one year post accident. She had tenderness in the muscles around her spine and at her sacroiliac joint. He had an MRI scan performed which revealed a tear in the ligamentus portion of the disc, which was consistent with the fall. The central portion of the disc had not prolapsed. He was of opinion that the plaintiff was suffering from discogenic back pain.
26. The plaintiff was reviewed by Mr. Rice on 6th February, 2015, at which stage she had made some progress, but she still had considerable pain and complaints. She had difficulty doing housework and working at a computer. He stated that on examination, he felt that there was pain on forward flexion which was consistent with the diagnosis of discogenic back pain.
27. The plaintiff was reviewed on 7th April, 2016, at which time there was no great change in her symptoms. She still had pain in her lower back. There were two aspects to the pain, an aching pain caused by physical exercise and if she should turn or bend suddenly, she would get a sharp spasm of pain in her lower back. He noted that she wore a back belt when doing housework. The pain had caused an intrusion in her life, but she was coping with the recurring back pain. His prognosis was that as the plaintiff had had back pain for four years, she will have pain in the long term. She will need to adapt her life and take medication. He did not recommend any surgery.
28. In cross examination, he stated that there was a rupture to the disc, but the height of the disc had been maintained and there was no stenosis or narrowing of the foramen. He stated that she had a problem in her back, but she was coping well with it. It was put to her that by 26th October, 2012, she was back to walking for up to one hour and she could work. Mr. Rice stated that that was correct. She had made progress but has since plateaued.
29. In his most recent medical report dated 7th April, 2016, Mr. Rice gave the following conclusions and prognosis:-
“I believe that this lady sustained a significant soft tissue injury to her lumbopelvic region with an annular tear of her L5/S1 intervertebral disc in a fall over three and a half years ago. She reports recurring mechanical pain in relation to her lumbopelvic region. This pain has persisted in spite of her attempts to rehabilitate the muscles around her spine. At this stage, I believe she has an established pain pattern and will continue to experience recurring symptoms at her current level in the long term. I do not believe any surgical intervention is indicated and I have advised this lady on the importance of her daily exercises to help her cope better with her recurring lumbopelvic pain that I believe has occurred as a result of the fall in August 2015. (This should read 2012).”
30. Evidence was given on behalf of the defendant by Dr. Brian Spillane, Sports and Orthopaedic Physician. He first saw the plaintiff on 16th May, 2013, which was approximately nine months post accident. The plaintiff complained of soreness in her lower back radiating into her right buttock. Walking and driving long distances caused pain. Examination of her right hip was satisfactory. She had full movement of her back, with tenderness at the L5/S1 level. His opinion at that time was that the plaintiff had suffered a soft tissue injury to the lower back. She had improved, but had ongoing discomfort. He expected a full recovery in three to six months.
31. The plaintiff was reviewed on 20th March, 2014, at which stage she complained of low level soreness in her lower back. This could be aggravated by activity. She was taking paracetamol for the pain. She used to walk approximately 90 minutes per day pre-accident, but now she was not able to walk for more than one hour. Examination revealed full movement of the lower back but there was tenderness in the area. Straining the right sacroiliac joint caused pain. She was able for her work and did not need medical intervention. He expected that a full recovery would be made in six months if she were to adhere to an exercise regime.
32. The plaintiff was reviewed on 2nd June, 2016. She still had complaints of recurring ache in the middle of her lower back radiating into the right buttock, caused by driving for longer than one and a half hours or walking more than one hour. Sudden movement also caused a sharp pain in her back. She was all right if she took it easy. She wore a support belt when doing housework.
33. Dr. Spillane stated that he saw an MRI scan of her pelvis on 8th April, 2014, and it showed no obvious changes in the pelvis or sacroiliac joint. He had seen a second MRI scan and based on this, he thought that the plaintiff strained her lower back and sacroiliac joint. Her pain was now from the area of the sacroiliac joint. She continued to be symptomatic. He was of the view that the plaintiff needed physiotherapy, swimming and pilates exercises.
34. In cross examination, Dr. Spillane accepted that the plaintiff was genuine. He accepted that she had ongoing complaints in relation to her lower back. She will have to be careful of her back in the future.
35. In his final report dated 2nd June, 2016, Dr. Spillane, came to the following opinion and prognosis:-
“This lady continues to suffer with recurring low back and right buttock pain. She minimises this by avoiding certain activities. Her symptoms do not appear to be very severe and she requires only very occasional analgesia. She has continued working without interruption since my last assessment.
She has not had any recent physiotherapy treatment mainly for financial reasons. I feel that this would be of benefit. In the long term, she may also benefit from a local steroid injection to the sacroiliac joint. It is now almost four years since this accident, however, and at this stage it would seem that full recovery is unlikely.”
Conclusions on Quantum
36. I am satisfied that the plaintiff has given a truthful account of the injuries she sustained in the accident. She has not tried to exaggerate her level of pain and disablement. It would appear that this 54 year old lady, whose lower back was asymptomatic prior to the accident, has suffered an injury to the muscles and ligaments in her lower back, with an annular tear of her L5/S1 intervertebral disc.
37. I accept that she continues to experience a recurring ache in her lower back towards the end of most days and that she is obliged to take painkilling and anti-inflammatory medication on a frequent basis. I accept that she experiences sharp pain on sudden movement. I also accept that she is disabled in the ordinary aspects of her life in doing housework, driving for greater than one hour and that she cannot walk for more than one and a half hours.
38. Turning to the future, it would appear that the plaintiff will have pain in the long term. As Mr. Rice said, the plaintiff will have to adapt her life to her pain and will require medication in the longer term. I note that Dr. Spillane is of the view that as it is almost four years since the accident, it would seem that full recovery is unlikely. Accordingly, I have to assess the case on the basis that the plaintiff has been permanently injured as a result of the accident in August 2012.
39. In assessing damages in this case, I have had regard to the helpful guidelines set down by the Court of Appeal in Payne v. Nugent [2015] IECA 268, Nolan v. Wirenski [2016] IECA 56, and Shannon v. O’Sullivan [2016] IECA 93. In the course of her judgment in the latter case, Irvine J. stated that it has been long accepted that awards of damages must be:-
“(i) fair to the plaintiff and the defendant;
(ii) proportionate to social conditions, bearing in mind the common good; and
(iii) proportionate within the scheme of awards made for other personal injuries.”
40. Taking all of these matters into account, I award the plaintiff €35,000 for pain and suffering and loss of amenity to date. I award the plaintiff €40,000 for pain and suffering into the future, together with special damages of €310, making an overall award of €75,310.
