A.N. (a minor) suing by her mother and next friend M.N. (plaintiff/appellant) v Bus Eireann/ Irish Bus (defendant/ respondent).

Tort - Personal injuries - Assessment of damages - Whether award of damages should be increased on appeal - Whether sums awarded in error of standard required before Supreme Court - Whether adequate compensation for development of respiratory difficulties.

The Supreme Court (Mrs Justice Denham, Mr Justice Hardiman and Mr Justice Fennelly); judgment delivered 10 July 2001.

In assessing damages for future pain and suffering where a plaintiff had developed respiratory difficulties, the correct approach would be to take this element into account as amounting to a very real possibility that the plaintiff would continue to suffer from this condition all of her life.

The Supreme Court so held in allowing the appeal against the award of damages for future pain and suffering.

Mary Irvine SC, Noel McMahon SC and Maureen McManus BL for the plaintiff/appellant; Murray McGrath SC, Martin Giblin SC and Teri Dungan BL for the defendant/respondent.

Mr Justice Fennelly said that this was an appeal by the plaintiff against the parts of the assessment of general damages awarded to her by the High Court, concerning, pain and suffering to date of trial £30,000, and, pain and suffering in the future £25,000. The plaintiff submitted that these figures were too low and should be increased.

In October 1993, when the plaintiff was aged seven, she was on her way to school in a school bus run by the defendant. The bus had filled with black smoke, apparently as a result of an engine fire, though the bus did not catch fire. The plaintiff had breathed in a lot of smoke and had started to cough because it was coming down her throat. Even after leaving the bus, the plaintiff felt in shock. She was distressed and crying, her throat was sore with coughing and her chest felt tight. She was on the bus for some minutes before it was cleared of all its passengers.

For some time after the accident, the plaintiff suffered nightmares about the incident. She would wake up in distress, shaking, sweating and with her heart pounding. There were a few incidents of sleepwalking. She became very nervous, clung to her mother and did not want to go to school. She had abdominal pains. She also recommenced bed-wetting, from which she had suffered previously as a result of certain distressing incidents, but from which she had recovered.

The bed-wetting occurred almost every night with occasional daytime incidents for a year and continued for several years but eventually resolved itself, though with occasional persistent problems of loss of control, when she was ten or eleven. A psychiatrist gave evidence and explained all of these symptoms as being the result of an acute anxiety disorder. They were resolved to a large extent after some five months, but some symptoms persisted even up to the time of the hearing in the High Court. The psychiatrist thought that the plaintiff's continuing psychological problems were more associated with the respiratory problems.

Mr Justice Fennelly said that the most serious aspect of the plaintiff's injuries was that she had developed respiratory difficulties. At first, however, it was assumed that she simply had a bad cold, she coughed up a lot of mucus, and she was put on antibiotics by the family doctor several times over a period of months. After more than a year, she was referred to a specialist who diagnosed a condition akin to asthma, called reactive airways dysfunction syndrome. She had signs of airway inflammation with gas trapped behind closed airways. Mr Justice Fennelly said that such long-term damage could be due to brief exposure to noxious fumes.

Mr Justice Fennelly said that the symptoms were, as in asthma, breathlessness and wheezing. They were accompanied by a lot of coughing, especially in winter. While previously the plaintiff had been the fastest runner in her class at school, she found that she was no longer able to run without distress and wheezing and had eventually lost interest. She had been fond of dogs, but was now conscious that close proximity to animals risks setting off her wheezing. Her condition had varied up and down over the years. Periods of improvement had been followed by relapse. He said that the expert opinion suggested that her chances of recovery were somewhat less, 40 per cent, than a normal asthma sufferer, where the chances were said to be about 50 per cent. The age of fourteen was said to be a sort of watershed and the plaintiff was just over that age at the time of the High Court hearing. Her ongoing drug regime involved taking inhaled steroids at relatively high dosages morning and evening, with several daily applications of a reliever inhaler. In winter she needed an antibiotic cover.

In considering the appeal against the two parts of the assessment of damages by the learned trial judge, Mr Justice Fennelly considered it also necessary to separate, so far as possible, the cluster of symptoms described by the psychiatrist as acute anxiety disorder. He said that the general burden of the evidence and the finding of the learned trial judge was that these symptoms had largely, though not totally, resolved within the first six months, though the bed-wetting problem persisted for three or four years. He said that the continuing symptoms of stress were more associated with the respiratory problem, which had both a past and future element.

On the basis that the sum of £30,000 in question was largely for the consequences of the acute anxiety disorder, Mr Justice Fennelly said that he considered the assessment of damages for pain and suffering to date to reasonably compensate the plaintiff for the undoubted distress which she suffered over a period of several years but which were diminishing during that time. He said that that sum had not been shown to be in error to the standard that would be required before the Supreme Court would disturb it. Therefore, he said he would dismiss the appeal insofar as it concerned the sum of £30,000 awarded under that heading.

On the other hand, Mr Justice Fennelly said that he considered that the sum of £25,000, allowed for future pain and suffering, fell significantly short of adequate compensation due to the fact that the plaintiff had effectively acquired a condition akin to asthma. He said that it was true that the evidence had established that the symptoms of the condition were effectively controlled. That result, however, would have been achieved by a notably comprehensive programme of drug treatment. The need for the plaintiff to take a reliever inhaler several times daily as well as before exercise was indicative of the active state of her condition. It appeared to be common case that the chances of the plaintiff recovering from this condition were assessed at rather less than 50%.

Mr Justice Fennelly stated that the correct approach should be to take this element into account as amounting to a very real possibility that the plaintiff would continue to suffer from this condition all her life. An obvious consequence was that she would, on that hypothesis, have to follow a heavy daily drugs programme. Apart from the inconvenience of that course, it could not be entirely devoid of risk of side effects. The plaintiff had also lost a significant element of enjoyment of life in no longer being able to pursue athletic pursuits. Her innate enjoyment of animals had been curtailed. There was some restriction of her employment possibilities consequent on the need to avoid inappropriate environments.

Accordingly, Mr Justice Fennelly allowed the appeal in that respect and increased the figure for future pain and suffering to £50,000.

Mrs Justice Denham and Mr Justice Hardiman concurred.

Solicitors: Barry Hickey & Henderson (Monaghan) for the plaintiff/ appellant; Donal O'Hagan (Louth) for the defendant/ respondent.

Gillian Reid

Barrister