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1. This case has had a long and chequered history. In the first instance it arises out of a road traffic accident which happened about 7.00 p.m. on the 11th December, 1988, near Newbridge, Co. Kildare when a motor car ran into the rear of the plaintiff’s stationary van. The plaintiff was then living in Waterford and he consulted a Waterford firm of solicitors. Proceedings were issued prematurely by this firm of solicitors in the Kildare Circuit Court which then had a jurisdictional limit of £15,000 in awarding damages for tort. The plaintiff was dissatisfied with a limitation of £15,000 for damages in his case and he engaged the defendant to take over the case from the Waterford solicitors with a view to having the action transferred to the High Court.

2. No application was made to the Kildare Circuit Court to transfer the action to the High Court. The case ultimately went on in Naas, Co.

3. Kildare Circuit Court on the 14th May, 1991, and the plaintiff was awarded £10,000 for general damages together with £2,000 special damages. The plaintiff was wholly dissatisfied with this award and with the handling of his case by the defendant and he promptly commenced these proceedings in the High Court by the issue of a plenary summons on the 19th July, 1991. These proceedings came on for hearing before the High Court in 1995 and were dismissed by an order of the High Court made on the 31st March, 1995. The plaintiff appealed to this Court where he succeeded and the case was remitted to the High Court to assess damages only, liability having been found by this Court on the part of the defendant especially in relation to the failure to apply to have the case transferred to the High Court. The circumstances of the litigation up to that hearing in the Supreme Court are outlined in detail in the three

4. The plaintiff is of Portuguese nationality and his vernacular language is Portuguese but he has a very good command of the English language. He was born in the Cape Verde islands on the 17th July, 1951. He came to Ireland about the middle of the year 1985, some 3% years before the road traffic accident. He had an extramarital household in Ireland including a son who would be now about seventeen years old. He was a navigator or naval officer qualified to serve as such on merchant ships. Before he came to Ireland in 1985 his earnings as a merchant ship’s officer were about £18,000 nett per year. He adduced evidence in the High Court that if he were back at sea in 1998 he would be earning

5. The assessment of damages came on for hearing before the High Court (Geoghegan J.) on Friday the 26th of June, 1998 and continued on Tuesday the 30th of June and Wednesday the 1st of July, 1998 with judgment delivered on Thursday the 2nd of July, 1998. The learned trial

6. The notice of appeal sets out the grounds of appeal in numerous paragraphs and subparagraphs, so numerous that they total slightly over 100 alleged grounds. This Court has to try to distil some sort of reality and order from such prolixity. The appeal in summary relates to:

7. In the course of his judgment the learned trial judge is recorded at page 1 and page 2 of the transcript for the 2nd of July, 1998 as saying:

8. It is important to note the first finding of fact made by the learned trial judge, namely, that as a result of the road traffic accident the plaintiff

9. The formal order of the High Court concludes as follows:

10. Among the many grounds of appeal in the plaintiff’s notice of appeal are grounds relating to the disallowance of punitive damages. I can deal

11. The plaintiff made detailed submissions on the facts of the case, but no submissions on law. Among his submissions was a claim that the learned trial judge did not allow the plaintiff to give all the evidence which he wished to give, such as evidence relating to a broken toe, to pain in his left shoulder, to alleged post-traumatic stress disorder, to headaches and to past and future loss of earnings and generally that the learned trial judge

12. The plaintiff is very voluble and the learned trial judge was entitled to control him so as to keep matters within reasonable bounds. The plaintiff had a script by reference to which he wished to give evidence which the learned trial judge did not permit him to do and, in retrospect, it might have been better if the plaintiff had been allowed to do so because the learned trial judge in effect ended up almost conducting an examination in chief of the plaintiff without any saving of time.

13. The plaintiff also submitted that, on the facts of the case, the amounts measured by the learned trial judge for loss of earnings and other losses and expenses past and future and general damages past and future were wholly inadequate. He also filed an affidavit in the Supreme Court alleging that his condition had deteriorated since the hearing in the High Court in July 1998 and, that as a result, had had to have another operation

14. Counsel for the defendant submitted that the Supreme Court ought not to interfere with the findings of fact made by the learned trial judge which were supported by credible testimony and he referred to and quoted from the case of Hay v. O’Grady [1992] 1 JR 210 and particularly at p. 213. He submitted that the transcript of evidence in this case fully bore out the findings of the learned trial judge.

15. Regarding the plaintiff’s affidavit sworn on the 22nd of February, 1999 for the Supreme Court appeal and dealing with an alleged deterioration in the plaintiff’s condition since the trial in the High Court, counsel for the defendant submitted that such evidence should be wholly disregarded in deciding whether or not to allow or to dismiss the appeal. That issue as to whether the appeal should be allowed or dismissed must be

16. I accept the submissions of defendant’s counsel that in this case the appeal should be judged on the basis of the evidence which was adduced before the High Court without regard to the plaintiff’s post-trial affidavit, even though there is a distinction between this case and Dalton v. The Minister for Finance and Eire Continental Trading Company Limited v. Clonmel Foods Limited. In the Dalton case the plaintiff was seeking an extension of time to appeal some two years or so after the High Court trial

17. What is established in this case by the findings of the learned trial judge is:

18. There was adequate evidence to support these two findings by the learned trial judge and I must, therefore, consider the case on the basis that they are correct findings of fact. It should be noted that the learned trial judge did not make any finding on the third question posed by him in his judgment at “B” above, namely, whether in fact the injuries sustained in the road traffic accident prevent the plaintiff from returning to sea as he contends is the case.

19. As regards the actual assessment of the damages by the learned High Court judge, the sum of £20,000 was assessed for past pain and suffering. This was for a period of 9% years from the 11th December, 1988 to the 2nd July 1998. After the road traffic accident the plaintiff did not appear at first to have very much wrong with him but, nevertheless, he ultimately had to have a serious operation on his back on the 18th July, 1994, that is to say 5% years after the road traffic accident and 4 years before the High

20. Court assessment of the damages. Again, according to the doctors the plaintiff did not appear to have very much wrong with him in this four year period following the operation but he himself was complaining of continuing back troubles all the time. In these circumstances the sum of £20,000 for past pain and suffering for such a lengthy period seems to be on the low side although not necessarily so low of itself as to justify this Court in interfering with it.

21. The award of £20,000 for future pain and suffering including loss of earning capacity is, however, very low. For the future as at July 1998 the plaintiff was a man complaining of back pain and having had a serious operation four years before. His earning capacity as a qualified seaman was £40,000 to £50,000 nett per year. It was not found one way or the other whether his back condition prevented him from returning to sea but in any event it would have affected him to some extent as a seaman if

22. Having come to that conclusion the question then arises as to whether the case should be remitted to the High Court to reassess the damages or whether this Court should itself assess the damages. The long drawn out nature of this litigation suggests that the latter course should be adopted in order to achieve finality in the matter and both parties also indicated their preference for this Court to adopt that course. Accordingly, I propose to assess the damages myself but in doing so I must

23. I am satisfied on the balance of probabilities that the plaintiff underwent further surgery on his back on the 12th of November, 1998 at the same level, that is to say the level of the lumbar fourth and fifth discs, as in the case of the first operation, on the 18th of July, 1994. In the light of that second operation I think it unlikely that the plaintiff would ever be fit to return to work as a seaman. While the finding of the learned trial judge that the plaintiff would not have returned to sea if he had not had the road traffic accident must stand, the amount to be awarded for the loss of the opportunity of returning to sea in the event of unforeseen circumstances arising must nevertheless be substantial. In addition, the necessity for the further operation corroborates the plaintiff’s evidence of his inability to do the work required in his newsagents shop business and

24. The plaintiff was paid the £42,125.47 awarded by the High Court having given credit for the £10,000 general damages awarded by the Kildare Circuit Court and, therefore, having now given credit for

25. £52,125.47 there will be judgment for the plaintiff for £102,874.53.