Neutral Citation No. [2004] IEHC 360
THE  HIGH  COURT
Record Number: 2002 No. 4985P

Between:
Tracey Higgins
Plaintiff

And

Lynn Smith and Richard Lee
Defendants

Judgment of Mr Justice Michael Peart delivered the 15th day of November 2004:

This young lady is truly lucky to be alive, which is perhaps the only consolation she can derive from the appalling car accident in which she was involved as a rear seat passenger in the afternoon of the 7th May 2000 shortly after her eighteenth birthday. Certainly no money awarded by the Court will compensate her for the terrible injuries she sustained, and the trauma of the accident itself. Psychological and physicals remain and will no doubt do so for the rest of her life.

 I have formed the view from the evidence which I have heard that while she has displayed a remarkable resilience and determination to overcome the psychological effects of her injuries, she is nevertheless still haunted by the memory of that day. Fortunately, liability was not an issue in the trial of this case before me, but nevertheless she was required to give evidence in relation to her injuries, and thereby having once again to relive the day itself and the long aftermath while she recovered.

It was mid to late afternoon on this day when the plaintiff was a rear seat passenger in a car being driven by a friend of her then boy-friend. Unfortunately she was not wearing a seatbelt. I should state at this point that at the commencement of the trial I was informed by her Counsel that it had been agreed that there should be a deduction of 5% from the damages assessed, in respect of this element of contributory negligence on her part.

The plaintiff gave evidence that prior to the impact this car was being driven at high speed along a road at Oldhead, Louisberg, Co. Mayo, when suddenly the car hit a telegraph pole, whereupon the car turned over, trapping those inside. She herself was completely trapped at the rear of the vehicle and her head was hanging out of the window. The position of the car was that it was hanging over a drop at the side of the road, which she described as being about two lengths of her own body, so it is safe to assume that it was a ten or eleven foot drop.

She lost consciousness for a short time. A shocking feature of this case is that following the accident she was trapped inside this vehicle for a period of about four hours before eventually being cut out of the vehicle and taken to hospital. She had been horribly injured and must have been in great pain. I will deal with those physical injuries shortly. But she stated that after she became conscious she became very panicky at first. She was aware that there was a sizeable drop below where the car was resting. She could also smell grass and petrol fumes and feared naturally that there might be a fire. While she wanted to get out of the car, she knew that she could not, and decided that since she knew that it would take some time to be rescued, she would try to relax, as she put it. 

After the rescue services arrived there was a lot of noise involved in cutting her out of the vehicle and this was also a frightening experience. This plaintiff has not in any way attempted to exaggerate or in any way overplay the trauma of what happened on that day. In fact she has showed a remarkable maturity for her years in how she gave her evidence, confining her evidence to essential matters. I want her to know nevertheless that it is obvious to me that she has been severely and deeply affected by the tragic events of that afternoon, and that I admire more than it is possible to express in a judgment of this kind the way in which she has dealt with them and no doubt will continue to deal with them into the future.

The injuries:

While she was trapped in the car awaiting her rescue, she knew that her arm was broken because it was badly twisted, and she could taste blood in her mouth. She also had a sore face. She could not feel any pain in her legs which were trapped in the wreckage. Before the rescue services arrived, the driver of the car had attempted to get her out of the car but this was not possible. She was caused pain in that attempt. In addition as I understand it, the driver had knocked against her broken arm when he was trying to extricate himself from the vehicle.

She has stated that when the rescue services arrived, they were able to free her legs but that the pain was excruciating. She was placed on the ground lying on her stomach, and she was thereafter rolled over onto a stretcher. The driver of the car and his mother travelled to the hospital with her. When she arrived at Mayo General Hospital she was in a great deal of pain and she was given painkillers. X-rays were taken, and she was transferred to Marlin Park Hospital, which is a journey of about one and a half hours. She gave evidence of being sore everywhere at this time, and that she did not see her face at that time. She remembers being prepared for the operating theatre, and recalls knowing that she had fractures but did not appreciate the severity of them.

The earliest medical report is one dated 11th September 2000 (some four months post-accident) from Mr C.V.R.Prasad MB; FRCSI, Consultant Orthopaedic Surgeon at Merlin Park Regional Hospital, Galway. He states that she came under his care at 00.50am on the 8th May 2000. As already stated, she had first been brought by ambulance to Mayo General Hospital in Castlebar, but was transferred after a couple of hours to Merlin Park. Mr Prasad noted that on admission she had the following injuries:

1.	Multiple abrasions to her face;
2.	Fracture of the shaft of her right humerus with radial nerve palsy;
3.	Fracture of the left femur;
4.	Contusion and bruising to the right leg;
5.	Bruising over the right breast.

Thereafter he states:

"After initial assessment and resuscitation, she was taken to operating theatre on the same day. The right humerus was exposed through a Henry extensile approach and radial nerve explored. The radial nerve was found to be in continuity with no obvious contusion. The nerve was protected and fracture reduced and fixed with a seven hole plate and screws. The fracture of the left femur was also reduced using a traction and stabilised with an intramedullary locking rod. Post operatively she was treated with a splint on the right hand and active physiotherapy. She was mobilised in a wheelchair.

On the 10th May 2000 she complained of chest discomfort and blood in the sputum. At that stage the attending doctor suspected pulmonary embolism and commenced her on anti- coagulation treatment. A ventilation perfusion scan was requested but this was not feasible due to deficiencies in the Western Health Board facilities. Her chest condition improved rapidly. I had assessed her overall picture and I felt that her chest condition was probably a fat embolism or due to blunt injury rather than a pulmonary embolism.

All her wounds were healing quite well and she was mobile in a wheelchair. Her compliance with physiotherapy was somewhat limited. Her family was from Dublin and hence discharge were discussed with them (sic) for further follow up in Beaumont Hospital. She was discharged on the 15th May 2000 for further follow up in Beaumont Hospital, Dublin.”

It is clear from this report that at that time the most serious injuries were the fracture to her right humerus with radial nerve palsy, and the fracture of the left femur. A feature of the case which has assumed now a greater importance than these fractures, is the scarring which has resulted from the surgery she underwent relating to the treatment of these fractures. There is also some residual scarring from the facial abrasions (to her left eyebrow and chin) which were noted by Mr Prasad on admission to Merlin Park Hospital, as set out above, and she has a mark on her neck of which she is very conscious. I will return to these matters in due course.

Following her discharge to Dublin from Merlin Park Hospital, Mr Prasad’s involvement with the plaintiff’s injuries ceased. Thereafter she came under the care of Mr Raymond Moran, Consultant Orthopaedic Surgeon at Beaumont Hospital. 

Journey to Dublin
The hospital was unable to provide ambulance transport to Dublin. This necessitated a slow and most unpleasant journey in the family car. It was necessary for the plaintiff to lie down as best she could on the back seat since she was unable to bend her broken leg. She describes this journey as being “agony” and taking a long time because she wanted her father to drive slowly because of her pain. There was also the practical difficulty of not being able to stop and get out of the car in order to use a toilet. In order to overcome this, the hospital had provided some sort of cardboard device, but she says that it did not serve the purpose adequately, and she found this aspect very distressing on the journey. The pain and indeed the affront to her personal dignity which this journey entailed is also a matter which I am entitled to have in mind when assessing damages, and I will do so.

Beaumont Hospital:

Once she was home she was able to be accommodated downstairs. Her bed was brought down, and she was able to access the downstairs toilet. But, as appears from the report of Mr James Corbett to which I shall refer in more detail later, it appears that when she got home she was doubly incontinent and had to wear nappies for two days before she was admitted to Beaumont Hospital. This was naturally very distressing for her on top of the injuries themselves. She spent one night at home before going to Beaumont Hospital where she remained for nine days until her discharge from Beaumont Hospital on the 25th May 2000. On her return home she again was accommodated downstairs as she was in a wheelchair for three months. She was unable to go upstairs and spent much of her time watching television. Fortunately her mother was available to help in relation to toilet and other personal matters on account of her arm fracture and the problem with her thumb resulting from the nerve palsy in her right arm. She was able to use the crutches, but had to be careful about putting weight on her right arm. She apparently had two crutches of different lengths because of this problem, but she states that she never got used to using them. Eventually as her leg got stronger she was able to use just one crutch. There is some leg shortening which has required her to use a 2cm lift in her shoe in order to avoid the risk of arthritis degenerative changes in the future. She says also that she currently swims five to six times per week. 

In relation to the nerve palsy in her right arm she states that her right thumb was affected and that she wore a splint in order to deal with that problem

Medical reports of Mr Raymond Moran, Consultant Orthopaedic Surgeon:

Mr Moran states in his first report that by the time of her discharge from hospital she was mobilising with the aid of a gutter crutch, and that she was managing about 80 degrees of flexion of her right knee. By October 2000 he was able to report that  she was making good overall progress, and that she demonstrated a full range of movement of her right arm which was “non-tender”. He also states that the radial nerve was showing improvement, with “just slight weakness of extension of her finger”. He noted at that time that there was a full range of leg movement and that her wounds were “well healed”. He was optimistic that she would make a good recovery from these injuries.

By February 2002, Mr Moran reported that the plaintiff was still getting some intermittent discomfort in the middle aspect of her left thigh. It was just coming on suddenly and for no apparent reason. She took pain killers to deal with this difficulty. She thought that there was some association between this and cold weather. He reported that her right arm function was satisfactory, apart from some shooting pain if she bangs her right arm. By 2002 she had returned to some work in customer services and was managing her day to day activities. 

He noted about 1cm muscle wasting in her left leg, and that her wounds were well healed, but was able to state that she had a full range of movement of her left hip and knee, and in relation to her right arm he remarks: “Her right arm shows a quite noticeable curved anterolateral incision. It is somewhat unsightly”. He also opined that increasing her exercise activity in a gym (which she intended doing at that time) would be helpful.

In his final report dated 14th October 2004, Mr Moran has stated that the plaintiff continuers to experience pain in her left knee which can be worse at the end of a day’s work if she is standing a lot. Her leg fracture has completely healed. He was hopeful still that any residual discomfort (which, he notes, seems genuine) would settle with time, and that she ought not to have any long-term functional disablement.

Report of Mr Martin Walshe, Consultant Orthopaedic Surgeon:

Mr Walshe has provided a report dated 14th August 2003 at the request of the defendants. He largely confirms the history of the orthopaedic injuries and their state of recovery referred to by Mr Moran. He also refers to the scarring and I will deal with his comments when dealing with these scars in due course. In general as far as her fractures are concerned, Mr Walshe is of the view that she has recovered, apart from some shortening of the left leg which is compensated for by an appropriate shoe raise, and the scarring.

Effect on the plaintiff’s work:

The plaintiff was due but for this accident to start work in a pharmacy where she hoped to be involved in the selling of over the counter remedies, and she also expected that this work would lead her onto a course. However following the accident she could not pursue this work because she was told that it was too physical in the sense of involving too much standing during the day’s work. She took up work as soon as she could as a telephonist in a courier company for nine months, and then joined a freight company where she did office and administration work for about a year and nine months. I understand she is now at college where she is undertaking a course in beauty and make-up.

Effect on physical activities:

Prior to this accident the plaintiff enjoyed in swimming and dancing. These were both severely curtailed by the injuries which she sustained, but she has got back to swimming and does so about five or six times a week, which presumably is as much part of a continuing exercise programme as well as for pleasure. Again the scarring of which the plaintiff is very conscious is a factor to be taken into account in relation to her swimming activity. As far as dancing is concerned, she had to be very careful after she had recovered at first, in order to avoid any damage. But as far as dancing is concerned she is conscious of the facial scars and also the scar on her right arm which is visible unless she wears a sleeve which is long enough to cover it up. I will deal with this aspect again shortly. 

Psychiatric/Psychological Sequelae:

Following the accident and for a long time, the plaintiff would wake up at night screaming and shouting. This was very distressing for her and no doubt for her family. She had nightmares and flashbacks, and disturbed sleep pattern. Eventually she learned to deal with this problem with assistance form Mr James Corbett, Consultant Psychiatrist. She describes it as having to let them play out i.e. the nightmares and flashbacks. She described suffering from Post Traumatic Stress Syndrome (‘PTSD’) which Mr Corbett has confirmed. She was prescribed some medication for this, but chose or preferred not to take it.

 She described also taking a long holiday on the Canary Islands because as she says herself  “I needed to escape and find who I was”. She kept asking herself “why me?”, and so on. By September 2004 when she went back to Mr Corbett she felt she had improved, and the nightmares and flashbacks had reduced, even though she was still affected by the accident. It is convenient to refer now to the reports of Mr Corbett which have been admitted. She has stated to me that she is concentrating on trying to get better, but she can get depressed and very upset when she is on her own.

Reports of Dr. James Corbett, Consultant Psychiatrist:

He describes in March 2004, the nature of the flashbacks associated with the accident itself such as the smell of the petrol and grass. Her nightmares involved accidents, and she was also very anxious when travelling in a car. He describes her as being also unable to relax, in a state of hyperarousal and unduly sensitive to noise, and that she became irritable and impatient. He states also that her consumption of alcohol increased and that overall she was angry at her predicament. He describes her as having PTSD of  “moderate to severe severity”, and that while she had at that time made some progress following upon psychotherapy, she still had ongoing symptoms. He noted that she had a positive personality and was well motivated. 

In his report dated September 2004 which was prepared following the plaintiff’s return from her holiday in the Canaries. She reported that she had found work there in a beauty salon which she found fulfilling. He reported also that she had reported experiencing pain in this job because it involved standing during the day, and that this was a worry for her as far as her future career was concerned. She also reported to him that she was very conscious of the scar on her right arm. She continued to have distressing recollections of the accident. She is particularly prone to upset when she is on her own. She can become upset, such as when she hears the same music playing that was playing at the time the accident happened. The smell of grass even now can upset her. She still finds that she weeps and can become depressed by the accident.

Mr Corbett has noted that following the accident the relationship with her then boyfriend terminated and that she has since then had some difficulty maintaining a long-term relationship. As a general prognosis he opines that her symptoms will resolve over a three year period, conditional on a favourable outcome to her physical injuries.

The Scarring:

In my view this is the most serious aspect of this case, involving a young girl who is now, four years after the accident, 22 years of age. 

It is best to refer first of all to the 3 reports of Mr Brian Kneafsey, Consultant Plastic and Reconstructive Surgeon, and thereafter to the plaintiff’s own evidence in relation to the effect this scarring has had on her. He refers in his first report to the history generally and to the fact that an intermedullary nail was inserted in her femur, and a plate was inserted in her right arm. He states that while in Beaumont Hospital the sutures associated with this surgery were removed, as well as some steri-strips which were used to hold together the facial lacerations. He states that when she was first referred to the Plastic Surgery Clinic in January 2001 it was noted that she had extensive scars over her right arm and left leg as well as some smaller scars on her chin and neck. He refers to them as being at that time “immature scars” and that she was advised to wait at least six to twelve months before any scar revision would be considered.

By the date of the first report in April 2001, it was almost twelve months post accident, and he noted that while the plaintiff stated that the scars had improved, she still had problems with them, some being lumpy and itchy. He then sets out five separate scars as follows:

“1. Left eyebrow and side of nose:
      She has very minor scars in these regions which were treated with paper steri-strips and have settled after about a month and do not cause her any distress at all.

2.	Left side of chin:
The scar on the left chin bothers Miss Higgins somewhat because it is quite lumpy and she feels that it is a little obvious. She does however admit that the symptoms of itchiness have greatly improved in this scar and that the red colour has also faded very well.
3.	Left neck scar:
The scar on Miss Higgins left side of neck she is still quite embarrassed about. These are intermittently itchy and become quite red in hot weather. However this itchiness has reduced. The appearance of the scar sometimes leads to teasing and she has been accused of having a ‘love bite’ on the left side of her neck.

4.	Right arm scar:
This scar bothers Miss Higgins considerably. She describes it as very red and ugly and particularly its colour has not greatly improved over the last year and also is associated with some abnormal sensation in the surrounding skin.

5.	Left leg and buttock:
There are three scars in this region, which cause Miss Higgins some embarrassment particularly going swimming. These have not greatly improved in their appearance and remain a source of embarrassment for her.”

In his report he elaborates on these scars, describing those on her chin as two curved semi circular scars over the left chin prominence, and that they are very faint but “lumpy or pin-cushioned”. The scar on her neck he describes as “a slightly reddened stretched scar measuring 1.5cm x 1cm”. However he states that it is pale and not obvious. He describes the right arm scar as one which is a very large obvious scar which can be seen from across a room. It is C-shaped and measures 18cm x 1.5cm in width, but that when one includes the white line of intermittent scars from sutures, the width is 2.5cm. It is red/pink in colour and is stretched and obvious. He describes the scars on her left leg as being three in number, two of these being obvious. The first is located high up near the buttock and is 6cm x 1.5cm. It is purple in colour and slightly indented. The next is lower down on the lateral aspect of her left thigh with a contour deformity, being pale purple in colour. The third which is lower down the left thigh measures 1cm x 1.5cm and which is also pale purple in colour. 

Mr Kneafsey describes the right arm scar as the worst but says that all scars will be permanent, even though they would improve over the following year or so. He expressed the view at that time that it might be possible to improve the right arm scar with “scar revision”, but that there would still be a permanent scar.

By the time Mr Kneafsey prepared his report in May 2003 he was able to report that the scars on her chin, eyebrow and neck “have essentially disappeared and are no longer a problem for her”. He also noted that the scars on the left leg had improved, but that the scar on her right arm had not greatly improved and was causing her concern. The plaintiff had reported to him at that time that her main concern was the scar on her right arm. She had also infirmed him that people noticed this scar and asked her about it. That scar was still quite tender and sensitive and that even if she receives a gentle knock in that area of her arm she gets a shooting pain down her arm and in fact her arm can go dead. The colour of this scar is also affected depending upon whether the weather is cold or warm. At that time the scars on her left thigh, even though improving, continued to bother her somewhat but not to the same extent as that on her arm. Mr Kneafsey notes in this report that the scars on her chin and neck were not noticeable from a distance, but that on closer examination they are evident but not very obvious. The scars on her leg were improving in as much as they were paler than when he had previously seen them.

Referring to the C-shaped scar on her arm, he states that this is an embarrassment to her in terms of its appearance and is also tender. He also believes that there is still some loss of sensation in the forearm. He expresses the view that while it would be possible to remove by surgery the “wider stretch portion of the scar” which would produce a thinner scar, that thinner scar would nevertheless remain red in colour for a year or two years post surgery, and of course it would also remain the same shape. The tenderness which she had at that time would not be improved by such scar revision surgery. Short of scar revision surgery he sees no prospect of further improvement in this scar in the medium to long term.

Mr Kneafsey’s final report is one dated 27th July 2004. He describes the plaintiff’s situation as being unchanged since his previous report. While all the other scars had “settled down” the scar on her right arm was still a problem for her. It is still tender to the touch and sensitive, and he describes her as having “hyper-sensitivity within the scar and surrounding area”. However he states as follows as far as the effect of the C-shaped scar on her arm:

“…However she is extremely self conscious about the scar on her right arm. She tells me that it is a constant reminder of her injury and people are constantly asking her what has happened and she often tells them that she was bitten by a shark but she finds the whole scar very distressing……….While she is still conscious of the other scars on her chin and legs they do not bother her too much and she is not that self conscious about them at all but she is extremely concerned about the scar on her arm”

He states that the scar on her arm could be improved with scar revision surgery and that the plaintiff is most anxious to have this carried out.

The plaintiff’s evidence regarding her scarring:

She stated that the sutures had been removed while she was in Beaumont Hospital. That was the first time that she was able to see the scars on her leg and her arm. She did not look at her facial scarring for some time after that. She described how when she saw the scar on her arm she thought it “gory and horrific” and that she “couldn’t handle it”. She recalls seeing the scars on her leg and buttock and wondering “are they real?” She found that she just had to keep looking at them.

She thinks that the scar on the side of her nose looks bumpy, and that the scars on her chin can get raised and red even nowadays, and this irritates her. She finds the mark on her neck to be very embarrassing because it can become red and she gets teased about it being a “love bite” and she is genuinely and understandably distressed about that. These scars become more red in heat.

But it is the scar on her right arm which upsets her most. When she goes out socialising in the evening she cannot wear clothing that she might wish to because she prefers now to wear clothing which conceals the large and obvious scar on her upper right arm. If it is visible, she is constantly asked about that scar and this upsets her greatly since it serves as a constant reminder of her accident and she is forced to relive it all over again and constantly. She stated that on some occasions she will go out in the evening in clothing which does not conceal this scar, but that she might cover it with a loose cardigan or shawl. While she might drop the shawl occasionally, this would be rare. She would hardly ever wear short sleeves. This is a significant problem in her life.

When she goes swimming this arm scar is visible and obvious and in fact become more red and purple after swimming.

She has been told, according to her evidence, though it is not mentioned by Mr Kneafsey in his reports, that she could get some laser treatment to improve the colour of the scar but that while it can minimise the scar there is no guarantee of success and it may not be worth the risk. 

With regard to the scarring on her left leg and buttock, these bother her a lot when she goes swimming. These scars also change colour and become purple and red when she swims, presumably because of the water temperature. In swimwear these scars are visible and obvious. She is very conscious of them. When she is out socialising these scars are not visible because they are covered up.

Conclusions:

At the outset I should state that I had the opportunity to see all these scars for myself, and I am satisfied that the plaintiff has not exaggerated these in any way whatsoever. The impact of these scars on a girl of such youth is obvious and if anything I am of the view that she has underplayed the effect these scars have had upon her and her life generally. Particularly being at the age she is, these scars, and particularly that on her arm, but also to a still significant extent those on her leg and buttock are the cause of significant distress on a constant basis. The scar on her arm is a very unsightly and large scar, despite the best efforts of her surgeon. The scar on her buttock is a significant scar still and is one she is self conscious of when swimming, and very understandably so. Fortunately the other two scars on her thigh are of lesser impact. As far as her face is concerned, these scars were clearly visible to me on a close inspection, but fortunately, and if necessary with a small amount of makeup, I am satisfied that while they are there they are not too visible. The mark on her neck is a problem for her because she gets teased about it in the way she has described. At her age this would be naturally very tiresome and distressing, and there is not a lot she can do about it as far as covering it up is concerned. Its position on her neck does not permit her to cover it conveniently, and I can well understand the difficulty this causes her, particularly at her age, but perhaps at any age.

 In my view what has happened to this plaintiff is shocking, and life changing for her. She has described the awful effect this accident has had on her in the four years since it occurred, and it will continue to haunt her for some time to come. As I stated at the outset I think this young girl has, certainly before me in Court, displayed remarkable courage and maturity for her years, and remarkable resilience in dealing with what happened to her. I admire her greatly, and I am sure that she will continue to deal with the impact of the accident upon her, and I certainly hope that in time she can lead a full life, no longer adversely affected by the visible and invisible scars which remain.

The Court unfortunately cannot give back to her the unblemished body she had before this accident. It is confined to awarding some amount of money commensurate with the seriousness of the injuries which she sustained and the extent to which she will continue to live with them into the future. I have absolutely no doubt that this plaintiff would swap all the money in the world if she could wind back the clock to a time before this accident. 

In measuring general damages for past pain and suffering I am not overlooking the trauma of the accident itself, particularly the terror experienced by this plaintiff while she waited for the rescue services to arrive and eventually extricate her from the vehicle. Neither do I overlook the appalling experience of the journey from Galway to Dublin when she was subjected to such indignity. I take into account the fractures to her arm and leg and the seriousness of them, as well as the pain involved in the aftermath of surgery during a very long recovery period, and the fact she was confined to a wheelchair for such a long period. I take into account the disruption to her social life and the very serious psychological effects of the accident such as the nightmares and flashbacks experienced over a long period. I believe that the flashback and nightmares are largely eliminated now, although they return on occasions. Lastly of course and very importantly I take into account the scarring which I have described in great detail.

For past pain and suffering, including the scarring which will be permanent, I measure a sum of €130,000. 

As far as the future is concerned she is of course left with the scarring, but I have included the permanent nature of the scarring in the figure just mentioned. As far as the fractures are concerned, it is pleasing to note that the plaintiff will in all probability not suffer greatly in the future, but she does retain a predisposition to some form of depression which comes against her from time to time, especially when she is on her own. I am optimistic that this also will improve as time goes by, given the very great courage and positive attitude which this young lady has displayed to date. Under this heading of future pain and suffering I award an additional sum of €25,000.

The total of general damages is therefore €155,000. From this sum I must make a reduction of 5% for agreed contributory negligence, which reduces general damages to the sum of €147,250.

Special damages are agreed at €28,000.

I therefore give judgment to the plaintiff in the sum of €175,250, and make an order in favour of the plaintiff in respect of the costs of the proceedings, including any reserved costs, same to be taxed in default of agreement between the parties.