Neutral Citation No. [2004] IEHC 369
THE  HIGH  COURT
Record Number: 1994 NO. 1651P

BETWEEN:
ANGELO MARSELLA
PLAINTIFF
AND

J & P CONSTRUCTION LIMITED
DEFENDANT
AND
PAUL O’GRADY
THIRD PARTY

Judgment of Mr Justice Michael Peart delivered on the 30th day of November 2004:

On the 19th March 1993, the plaintiff fell off a scaffolding platform while he was plastering a ceiling in the corridor of a school.

 He was unconscious for about 15 minutes and received an injury to his head, right shoulder, right wrist, lower back, chest and right cheek. I will deal with these injuries in more detail in due course.

The defendant was the main contractor for the renovations being carried out at the school. The third party is also a plasterer, who was working alongside the plaintiff on the platform at the time, and who was joined by the defendant as a Third Party, on the understanding that the plaintiff was employed by the Third Party at the time of this accident, and on an understanding that the Third Party had also assisted in the erection of the scaffolding platform in question. 

For reasons which I shall set out, I am satisfied that neither of these understandings is borne out by the evidence, and in so far as there were averments made for the purposes of the  application to join the Third party, or pleadings or particulars to like effect, same are incorrect. I am satisfied that the Third Party has no liability to indemnify the defendant in relation to any liability found against the defendant company.

The relationship between the plaintiff and the Third Party:

These two men have known each other since they were teenagers. In 1989 the plaintiff was working in England as a plasterer, and around that time, Mr O’Grady went over to England and began to work as a plasterer with the plaintiff. The plaintiff returned to Dublin around 1990, and Mr O’Grady came back the following year. It was around that time that they started working as a plastering team. That is the most convenient way of describing the working/business relationship between them. They were not partners in the strict legal meaning of that term. There was no partnership agreement, either verbal or written, as lawyers understand that term, but they certainly worked as a team on jobs, and they had an agreed basis upon which the price for any job done would be split between them after allowing for the overheads and deductions. While this relationship defies any strict legal categorization, it is a relationship which enjoys a form of acceptance or recognition by the Revenue Commissioners. The relationship for tax purposes is based on a Form C45 used by registered sub-contractors. It is a relationship which does not attract the liability for each other’s debts and obligations in the way normally understood in a partnership, and it also contains a certain informal fluidity. The arrangement between the two men appears to have allowed for a situation where, if a particular job was obtained through a contact of Mr O’Grady’s then a business name of his namely “OG Plastering” would be named on the C45 form as the subcontractor to whom the main contractor would make his payment for the job sub-contracted, and the profit after overheads and disbursements would be equally shared between what is known as “the group”, which would comprise the plaintiff and any other plasterers on that job. The plaintiff therefore would be named on the C45 as the recipient of a certain sum, and would himself thereafter make his own return to the Revenue in respect of his tax liability. 

Conversely, if a particular job was obtained through a contact of the plaintiff’s, the payment would be made to him by the main contractor, and Mr O’Grady would be named on the C45 as part of the group, and would be shown on the C45 as having received a certain sum, and would make his own return to the Revenue Commissioners. It would appear that this type of working relationship is well known in the trade, and applies not only to plasterers but also perhaps to other trades working regularly as subcontractors. 

Much effort was expended on the part of the defendants in this case to establish that Mr O’Grady was in fact the employer of the plaintiff in the normal sense of that word, or alternatively that the pair constituted a partnership in the more usual or understood meaning of that term, in order to establish that Mr O’Grady, in either capacity, owed a duty of care to the plaintiff in the manner of the erection of this scaffolding, from which the plaintiff fell and injured himself. 

However, without setting out all the evidence that was given and submissions made, and which will no doubt appear fully set forth in the transcript, if required, I am satisfied that that the relationship between the two men is not one, as a result of which the Third Party owed any duty of care to the plaintiff which is relevant to the injuries received by the plaintiff in this accident. 

As I have said it is virtually impossible to categorize the relationship by the use of any term normally used to describe the relationship between two men working together. But I am satisfied that although there is some loose form of profit-sharing within the relationship, both are in reality self-employed persons who come together from time to time and work as a team, but without either being subsumed into any relationship with the other as an employee or into a partnership as such. One could perhaps describe it as a sui generis relationship enjoyed between sub-contractors in the plastering trade. I am satisfied on the evidence that the plaintiff was never employed by Mr O’Grady in the normal sense of the term “employed”. I am also satisfied that when the contract for the job at this school was negotiated, it was through a contact of Mr O’Grady, who knew the main contractor’s Mr Fitzpatrick. I am also satisfied on the evidence that at the meeting organised to discuss the job and agree the price, the plaintiff was also present with Mr O’Grady.

That is all sufficient to dispose of the Third Party issue, and it has been convenient to do so at the commencement of this judgment rather than to leave it to the conclusion. That leaves the issue of liability to be decided solely as between the defendant and the plaintiff, including the question of any contributory negligence on the part of the plaintiff himself. 

The issue of liability as between the plaintiff and the defendant:

The evidence of the plaintiff and of Mr O’Grady who also gave evidence, is that it was agreed with Mr Fitzpatrick that the main contractor would provide the plasterers with the scaffolding necessary to do the plastering in the school, which included plastering the ceiling of the corridor in question. In fact, in fairness to Mr Fitzpatrick, he accepted in cross-examination by James Nugent SC for the plaintiff, when it was put to him, that the responsibility for ensuring that the scaffolding was in place for the plasterers was with the main contractor. There is no room for doubt on the evidence about this. I am satisfied that the primary responsibility for ensuring that a safe scaffolding was in place for the plasterers to work on lay with the defendant company. That is not to say however that experienced plasterers such as the plaintiff do not have some responsibility towards themselves to make sure that their working area is one which it is safe to enter upon and work in or, as in this case, on. I will come to that.

The plaintiff’s evidence:

The plaintiff stated that on this job the main contractor was to supply the scaffolding for the plasterers, in addition to items such as water and power. In his experience the plasterers would never provide their own scaffolding. He stated that prior to the Friday on which this accident happened there had apparently been scaffolding there but that it belonged to painters or other crews. This scaffolding was not going to be available on the Friday of that week, and it was apparently agreed by Mr Paul Fitzpatrick of the defendant company that he would provide his own scaffolding. The plaintiff has stated also that when he arrived to start the work on this day, he commenced work on lower areas while the scaffolding was being erected. He said that neither he nor Paul O’Grady took any part in the erection of the scaffolding itself that morning. He stated that at about 2pm he mounted the platform which was by then in situ. The platform was sitting on a concrete floor which was possibly tiled, although he was unsure about that. The planking on the scaffolding would have been about eight feet off the ground. He says that he noticed nothing unusual about the scaffolding which had been erected before he got up on it. It was constructed of two eight foot sections which were joined together making a sixteen foot length of scaffolding altogether. It was mounted on wheels, so that it could be moved up the corridor as required. 

He says that Paul O’Grady was up on the scaffolding with him and that they were each working on the scaffolding, but starting from opposite ends as they plastered the ceiling in question. In the centre of the scaffolding was a table from which they took their supply of plaster onto their hawks. They were working overhead – in other words their heads were facing upwards as they worked. He stated that he would have been able to see the end of the scaffolding while working, so that he knew how far he could walk along the length, but that he could not see that there was in fact a gap between the end of the planking and the frame of the scaffolded platform caused by the fact that the planks did not quite reach the end of the sixteen foot length. In any event he states that about two minutes after he started work on the ceiling his foot went into the gap in question causing him to overbalance and he toppled over and fell to the floor beneath him. He described himself as flipping over and hitting the ground. 

He was unconscious, and was eventually removed to St. James’s Hospital where he was treated for his injuries. I will return to those injuries later. 

He was cross-examined by Kieran Fleck SC on behalf of the defendant. In answer to questioning the plaintiff stated that before getting onto the platform he checked it by shaking it to make sure it was steady, and he said “it looked okay”. He agreed that he had not carried out a detailed inspection before mounting it, but that he simply inspected it. It was naturally put to him that if he had carried out any sort of reasonable inspection he would have seen quite clearly that the planks were short at one end and that there was a gap, but the plaintiff felt that this would not necessarily be the case, given that the length of the platform was in the order of seventeen feet, and unless he got up onto the platform at that end, which he did not. The evidence appears to be that he started his plastering at the other end and worked his way down to the end where there was a gap.

He was asked about the size of the gap itself, and he described it as being about four feet in depth and one foot wide. The Court was shown some photographs of this platform albeit one taken on the following day, and after it had been re-located in another room off the corridor so that work could be done in that room, and it certainly confirms these dimensions of the gap, on an assumption that it was reconstructed in the other room in the same way as it had been for the work in the corridor when the plaintiff fell. 

It was put to the plaintiff that he could not have been keeping a  proper look-out for his own safety if he did not see this gap in the platform. However he stated that while he could see the pole at the end of the scaffolding he could not see the gap in the floor.

It was also put to him that Mr Fitzgerald who came on the scene from a room just off this corridor immediately after the plaintiff fell will say that, when he saw the scaffolding at that point in time, a cross-bar which was supposed to be in place at the end in question of this platform at a level of about 1 foot above the level of the planks, and which would act so as to stop somebody falling off the end of the platform, had been removed, and was in fact lying lengthways along the planks at that end of the platform. The plaintiff knew nothing about that but said also that this particular cross-bar, at the level it was at, would not in fact prevent anybody falling off the end, because it was only to knee height.

Mr Fleck also put it to the plaintiff that in fact what had happened was that the plaintiff had simply come to the end of the platform without realising it and had simply fallen off the end in the absence of this cross-bar being in place. The plaintiff reiterated that what had happened was that his foot had gone down into the gap and that he had then fallen over and onto the ground below, and that it was not the case that he had simply gone too far down the platform and fallen out over the end. The plaintiff agreed that nobody had made any complaint about this scaffolding to Mr Fitzpatrick before getting up onto it in order to work.

The plaintiff was also cross-examined by Marcus Daly SC on behalf of the Third party, and it is not necessary to set this out in detail in view of the finding already made in relation to the Third Party. 

Evidence of Paul O’Grady:

Mr O’Grady gave evidence in relation to some photographs which he took on the following day after the platform had been dismantled and re-assembled in the other room to which I have referred already. He also stated that on the day of this accident he had been working on the platform with the plaintiff and had been working from the opposite end to the plaintiff, but that when he had got up onto the platform from the ground he had not spotted the gap either. It was put to him that if he had walked around the scaffolding before getting up on it, he would have been able to see the gap on a reasonable inspection. He said that if he walked past the scaffolding on that morning before getting up on it he was net paying any heed to the scaffolding itself, and he said that as he was working on the platform his mind was on skimming the ceiling and he did not notice the gap. He went on to say that they were working under some pressure to get this job finished because they had other work to go to. He also was sure that the cross-member was present at the end of the scaffolding, and not, as was stated by Mr Fitzpatrick, lying on the planks lengthways.

Mr O’Grady accepted that he would have a duty to check out his place of work himself but said that he did not notice the gap, but he disagreed with the suggestion put to him that he had failed to carry out any reasonable inspection before using it himself. 

There was other cross-examination about matters such as the nature of the business relationship between him and the plaintiff, as well as the negotiations with the defendant for the contract, but I have already dealt with these issues.

Evidence of Mr David Semple, Consulting Engineer:

Mr Semple was shown the photographs of the scaffolding showing the gap in question, and expressed the view that this scaffolding ought not to have been used as it was unsafe. He pointed out that there was no proper handrail, and was not properly decked out. In addition there was no proper access and no toe-boards. He explained that the purpose of toe-boards was that a scaffolding is supposed to be an area which is as safe to work on as a floor itself. He stated that from the photographs there was clearly a gap at one end. He stated that the plaintiff working on the skimming of the ceiling would have his concentration on the area over his head, and that in these circumstances this gap was a danger and should never have been provided for use in this way. He also pointed to the fact that the cross-bar/handrail was not the proper height since it was only eighteen inches over the level of the planks, and that it should have been three to four feet above them to be of use.

He stated that the Regulations provided that a scaffolding ought to be erected only by competent scaffolders, and that this scaffolding was erected by labourers, and that it had not bee checked out. He was of the view that it was not in compliance with the Regulations and was dangerous.

He was cross-examined by Mr Fleck, and he accepted that the plaintiff’s fall, would have been about two metres. He also agreed that if workmen had got up on this platform to inspect they would have been able to see the gap, but that it might not have been obvious if a man simply walked past the scaffolding. It was put to him that it would be reasonable to expect that an experienced plasterer would check out the work area before getting up on the scaffolding. But Mr Semple expressed the view that it was reasonable for such a person to assume that it was in order. He agreed that there should have been a cross-member in place at the end of the platform, because in the absence of one a person could walk off the end. He was then cross-examined about how the plaintiff might have fallen, and he was of the view that what happened was that the plaintiff’s foot went through the 12 inch gap which he described as a significant gap, and that he would have been moving at the same time while skimming the ceiling, and that this would have caused him to topple over the rail and fall to the ground.

It was put to him that the cross-rail had been removed in this vase, but Mr Semple stated that in his opinion that cross-rail even if it was in place would not have prevented the plaintiff from falling. He agreed that it served some purpose, but not much.

He also gave his opinion that there can be only one person on a site who is in charge of safety on the site, and that was the main contractor. 

Evidence of Paul Fitzpatrick:

Mr Fitzpatrick is the Managing Director of the defendant company. He did not actually see this accident happen, but he was working on the wages that Friday in an office just off the corridor on which the scaffolding was erected. He heard a commotion outside and immediately went out to see what had happened. 

He provided the scaffolding on wheels for the plasterers. It was erected by labourers of his that morning. He says that after it was erected there were two cross-members in place, one at each end, and that there was atop bar or handrail at the end where the plaintiff fell. This is the rail shown in one of the photographs identified as photograph A.

He described the planks as being 16 feet in length. The two 8foot pieces of scaffolding were joined together with couplings and the planks were laid across both portions. The planks were short at one end, although he stated that they should have been short by just one and a half inches at each end, rather than all the shortness being at one end, as happened.

He stated that when he came out of his room he saw the plaintiff lying on the floor with his feet facing towards the scaffolding and his head to one side. His trowel and hawk were on the ground in front of him. His concern was to get an ambulance and he called for one twice. He also saw PaulO’Grady down on the floor with the plaintiff, he could not remember whether he was at his side or in front of him.

He stated positively that the cross-member which has been referred to was not in place but was lying lengthways on the planks at the end from which the plaintiff fell. 

Mr Fitzpatrick was cross-examined quite extensively in relation to the contents of a work diary which had only been found by him on the night before this hearing, and which had not been discovered when discovery was being made in this case. In fact as things have transpired nothing turns on the contents of that diary, and I will not detail all that evidence.

On cross-examination by James Nugent SC he accepted that it was a main contractor’s responsibility to ensure that scaffolding was in place for the plasterers, and that he did so on this occasion. There was also some cross-examination of Mr Fitzpatrick arising out of the fact that during the course of these proceedings there was correspondence from the defendant’s solicitors to the plaintiff’s solicitors in October 1998 suggesting that the defendant was maintaining at that time that the labourers employed by the defendant and who erected the scaffolding, in fact were working on that occasion under the control of the Third Party, Mr O’Grady. Mr Fitzpatrick appeared to be unaware of that case being made. At any rate it does not matter to the extent that I am completely satisfied that Mr O’Grady had no involvement whatsoever in the provision and erection of this scaffolding and that any liability to the plaintiff attaches to the defendant company.

Mr Fitzpatrick stated under cross-examination also that it was up to the plaintiff to inspect the scaffolding before using t, if he so wished. He said that the same would apply to workers of other trades, such as plumbers, tillers, glaziers, electricians, if these persons were required to work at a height. He also accepted that on this day he would have walked past this scaffolding on a number of occasions, and he did not notice the gap at the end thereof. He also stated that in his view the plasterers should have had their attention on both the ceiling and the floor of the platform as they were working.

Some legal submissions:

Kieran Fleck SC on behalf of the defendant made submissions to the effect that the Court should view the plaintiff and the Third Party as contractors, and not employees or servants of the defendant. He submitted that one scenario was that Mr O’Grady was a contractor who had employed the plaintiff. In that situation, it is submitted that a duty of acre was owed to the plaintiff by Mr O’Grady.

 Another scenario was the both Mr O’Grady and the plaintiff together constituted a sub-contractor, each being self-employed in relation to each other. In such a situation the plaintiff would owe a duty of care to himself. In addition, however one viewed the situation, either or both was a contractor, and therefore came within the definition of “a contractor” for the purpose of the Regulations. 

If the plaintiff was a subcontractor, Mr Fleck submitted that any liability was in contract only.

Yet another scenario was that neither Mr O’Grady nor the plaintiff were contractors but yet were in some form of partnership whereby each was jointly and severally liable for the torts of the other, and that thereby the plaintiff was liable himself for the torts of Mr O’Grady.

In response, Mr Nugent submitted that the interpretation of the Regulations relied upon by Mr Fleck was a strained one in the context of the plaintiff’s case, and that the Regulations were never intended to exempt the main contractor from liability for negligent acts.

Conclusions in relation to liability:

In my view, the question of liability for the plaintiff’s injuries can be decided by the ordinary principles regarding the duty of care owed in certain situations by one person to another. There is no need to decide whether the plaintiff was a contractor in any sense relevant to the Regulations to which Mr Fleck referred. I have already expressed my view on the nature of the relationship between the plaintiff and the Third Party.

In my view the defendant company which, through Mr Fitzpatrick, has accepted that it was obliged to and did erect the scaffolding in question, owed a duty of care in the manner in which that scaffolding was assembled or constructed, to any person who would, in the reasonable contemplation of the defendant, be likely to be upon it or to use it. In the circumstances of this case, there can be no doubt that it was foreseeable that someone such as the  plaintiff, a plasterer, would be using it, and the element of proximity is clearly present since Mr Fitzpatrick had engaged what he believed to be a plastering subcontractor to do the work. It is of no relevance really whether he believed he was engaging just Mr O’Grady, rather than the “team”comprising Mr O’Grady and the plaintiff. What is beyond any doubt is that the duty of care was owed to whatever person was in fact plastering with the aid of this scaffolding. 

Whatever the relationship between the plaintiff and Mr O’Grady, it was not one of employer/employee in the normal sense of that term such as would create obligations on Mr O’Grady as an employer. I am satisfied that Mr O’Grady did not owe a duty of care to the plaintiff in any respect relevant to how this accident happened. Obviously he would owe a duty of care to him not to do a negligent act during the course of working with him on that scaffolding, but that is another matter altogether and not relevant to the present case. It follows that the duty of care was owed by the defendant directly to the plaintiff.

As far as contributory negligence is concerned, I am also satisfied that the plaintiff had some responsibility as an experienced plasterer to take basic care and precautions in respect of his own safety, and this must be taken to include making sure as far as reasonable, by appropriate inspection, that the work place in which he was to work is safe and suitable. This duty does not in any way supplant the duty on the part of the main contractor in the manner in which the scaffolding is assembled. 

I am satisfied that the plaintiff was at the time a very experienced plasterer. That experience will have told him that care is required to ensure that an item such as a scaffold is a potentially dangerous position to work from. That potential danger is reflected in the need for regulations in the manner in which scaffolding over a certain height is concerned. Even if the height of this platform was not over that limit, the plaintiff himself cannot work on an assumption that the platform is safe. However, clearly the main contractor bears a larger portion of the responsibility to ensure that the scaffolding is safely constructed.

I am prepared to accept that the plaintiff may not on a casual observance of this structure from the floor have noticed the fact that the planks were short at one end, thereby causing a gap to exist which was dangerous. I accept also that while working upon the platform in the act of putting plaster on the ceiling, he would be looking upwards and not to the planks in the direction in which he was working. But the latter fact in particular must imply or mandate that the plaintiff, before he commences his work, should check that where his feet will travel while he is looking upwards at the ceiling, is safe.

In the circumstances I believe that the plaintiff must bear 20% of the responsibility for this accident. If he was less experienced, that would be reflected in a lesser finding of contributory negligence perhaps, but it defies commonsense, if nothing else, to mount a structure such as this one and for the purpose in this case, not to adequately check its safety before commencing work upon it.

The plaintiff’s injuries:

In his first report dated 15th April 1993, Mr Maharaj, Consultant Orthopaedic Surgeon gives details of his findings following an examination which he carried out on the plaintiff some 5 days post-accident. He notes that the plaintiff was taken to St. James’s Hospital in Dublin where he had x-rays of his skull, shoulder, wrist and back, and that a plaster of paris was applied to his right wrist, and that he was detained there for twenty four hours and discharged home. He notes that he attended his GP a couple of days later complaining of headaches and pain on his left side. This report notes the injuries sustained as follows:

1. Head injury with a lump right side scalp and concussion.
 2. Severe bruising of right shoulder.
 3. Injury to right wrist with swelling.
 4. Bruising lower back.
 5. Bruising and pain left side chest.

An x-ray of the right wrist revealed a fracture. It was noted that the headaches would last up to half an hour, and that there was some numbness of the right cheek area. In addition his teeth were sore, as was his shoulder so that he could not lift up high. It was noted that he was sore across his lower back and on the left side of his chest.

Mr Maharaj advised him to sleep on a firm bed and to continue taking Voltarol tablets.

He was examined again on the 5th April 1993, and it is noted that the plaintiff complained of blood in his sputum, soreness to the left side of his chest. His chest was x-rayed and there was no sign of fracture and the lungs felt clear.

Mr Maharaj stated that the plaintiff had sustained a severe injury, and that his headaches were due to the concussion suffered, and that these could last for “ a good while”. He also noted that the fracture of a small bone in the right wrist could also take some time to heal. He stated that the blood in the sputum could be the result of contusion of his lung.

He was examined again on the 15th April 1993, and on that occasion, Mr Maharaj noted the injuries already set forth, but also stated that during his examination he noted the plaintiff “was tender right zygomatic arch region with prominence of right maxilla causing some deformity of face. Still has numbness over right maxilla”. An x-ray of the face disclosed an undisplaced fracture to the right zygomatic arch.

Mr Maharaj indicated that the plaintiff at that time would not be fit for work for three to four months depending on his progress.

By December 1993 some of the injuries were noted to have improved, but continuing headaches were noted as being expected to continue for a considerable time; there was continuing loss of sensation in the right maxilla region which would also last for some time, and it was noted that this could be permanent if there has been nerve damage. Mr Maharaj also stated that he would have “permanent deformity right maxilla giving rise to asymmetry of face.”

At that stage the plaintiff still had stiffness in the neck, and lower back areas, but had recently returned to work as a plasterer, although Mr Maharaj was of the view that the injury to his wrist and his back difficulties would cause him some long-term problems in that occupation.

In August 1995 the plaintiff was examined by Mr Michael O’Riordan, Consultant Orthopaedic Surgeon. This was almost two and a half years after the accident. He was of the view that the soft tissue injuries to the shoulder, lower back and left side would all clear up in time, but he noted that “on the right shoulder there are definitely signs of possible damage to the rotative cuff muscle”. He stated that as a general rule this would settle down with time, but that occasionally, from constant irritation, a tendonitis can occur. He felt that with avoidance of a lot of overhead activity this problem should settle in due course.

With regard to the face injury, he was of the view that the tingling complained of by the plaintiff would persist but would not be a major problem.

Six months later, Mr O’Riordan saw the plaintiff again and he complained that his main problem at that stage was his shoulder because it was giving him a lot of trouble when he was plastering ceilings, and he had deep pain in the shoulder itself on elevation of his arm. The wrist had settled down. Mr O’Riordan was still of the view that the shoulder difficulties would settle down with time, and that he would be able to continue with his normal working activities in the future. The onset of arthritis was not anticipated. Working overhead was still a problem for the plaintiff in November 1997 – over four years post accident. Sometimes he would get discomfort in his right wrist if he was doing a lot of plastering, and he had a small amount of low back pain at that point in time also.

By September 1999, Mr O’Riordan felt it advisable to have an MRI Scan of the right shoulder. He also did bone scans which revealed nothing abnormal. The MRI Scan revealed no significant pathology. Mr O’Riordan was thereafter able to state that the plaintiff’s prognosis was probably better that he had previously anticipated, although he would continue to have aches and pains for some time but that these should settle down eventually.

By June 2002, the plaintiff was still experiencing tingling in his right cheek intermittently, as well as some persistent stiffness and pain in his right wrist, as well as continuing difficulties in the shoulder area when working overhead.

The plaintiff was referred to Mr Frank Brady, Consultant Oral and Maxillofacial Surgeon in relation to the tingling and altered sensation in his face, which was stated to start over his right forehead and extends into the right cheek area. It was noted that there was increased sensitivity and occasional twitching of the right eyelid. He also noted that the plaintiff does not think that there has been any altered facial appearance.

Mr Brady opined that the plaintiff had permanent damage to the underlying sensory nerves and also that “there was no specific treatment for this irritating complaint”.

There are some further reports, but none which add to the sum of our knowledge about the continuing nature of the remaining symptoms described so far.

The plaintiff’s evidence concerning his injuries:

The plaintiff has stated that after he was brought to St. James’s Hospital in the immediate aftermath of this accident, he was nauseous, dizzy and drowsy, and in a state of shock. The injuries themselves were described as Mr Maharaj described them in his first report. He stated that he was released the following day with painkillers and anti-inflammatories. He said he was glad to be out and that pain and stiffness were his main complaints at that stage. This persisted for quite a while and he said it might have been about a year. The complaint about pain in his chest cleared up at between six and twelve months, but his wrist injury was more long-term. It would swell up after a day’s work, and the degree of soreness would depend on how much work he did using the wrist. It is a feature of plastering that the wrist is put to considerable use. The plaintiff stated that the pain in his cheek cleared up in about six months.

In relation to hi9s shoulder he had problems at work until about 1997, after which his business had developed to the point where he had men working for him, and he did not have to do much actual plastering. He was more managing the rest of the men and the business. Nevertheless the plain would come against him occasionally.

Nowadays he still gets some discomfort, particularly after a day’s fishing, although it would not stop him going fishing.

As far as the sensitivity and tingling in his face is concerned, this continues to be troublesome. He is aware of it, for example, when he combs his hair or touches it. He described it as being like a small electric shock. The area of the face affected is from just inside the hair line on the front right of his head, and it runs down to the bottom orbit of the right eye. As far as the future is concerned, he says that he will be happy enough about it if it stays the same as it is now. I take this to mean that it is not a major nuisance or inconvenience in his life and that he has learned to live with it. 

His wrist is satisfactory now, except sometimes when he is out fishing. Sometimes in the evening after such a day, there is some swelling.

He was adversely affected in his work mainly between 1993 and 1997, with work on ceilings posing particular difficulty. He would be sore in the evenings around the shoulder area and also his wrist.

The plaintiff has been very honest in relation to his injuries. He has not sought to exaggerate his symptoms in any way either either historically or at present and into the future. He has got on with his life in a way for which he should be complemented. This accident could have left him in a far worse condition. To that extent he is lucky not to be further disabled. The advantage of a long delay between the time of the accident and the case coming to hearing is that the injuries and the recovery are more certain. In this case the prognosis is good in the sense that n further deterioration in any of the complaints is anticipated. The MRI Scan has cleared up what was a doubt in the specialist’ mind about the long-term, and the plaintiff was in a position to be reassured that no long-term sequelae were anticipated in relation to his shoulder.

Taking the totality of the injuries to the head, shoulders, back, chest and the wrist fracture, I assess general damages for past pain and suffering at €50,000. The future pain and suffering is not very significant, but nevertheless there will be residual sensitivity in the face area for the rest of his life most likely. On the other hand he does not seek to make too much of that. There is also occasional wrist pain of a small amount and a similar discomfort every now and then in the lower back, but again to a small degree. In the circumstances, I assess general damages into the future in the sum of €10,000, making a total sum for general damages in the sum of €60,000.

I am told that special damages are agreed at €18,736.86.

The total of these figures is €78,736.86, and accordingly, having made the deduction of 20% for the plaintiff’s contributory negligence, I give judgment to the plaintiff against the defendant in the sum of €62,989.49.