The Plaintiff was employed as a General Operative for the Defendant and had worked for the Defendant company for 22 years. In July 2017, while acting in the course of his employment with the defendant, he fell partially into a hole, striking his lower back against the edge of the hole. The Plaintiff worked on for the remainder of his shift for approximately one hour. Two days after the accident the plaintiff went to his GP complaining of severe lower back pain. He remained out of work until the 9th of October 2017.  He ultimately had to cease working again in July 2018 due to ongoing back pain.

The plaintiff claimed that he developed chronic pain in his back, which rendered him unfit for work. Further, he submitted that as a result of the incident that took place he is now significantly disabled in all aspects of his life. He had been treated by a pain specialist and has had extensive physiotherapy treatment since the time of the accident. He is on a cocktail of strong pain-relieving medication.  The plaintiff’s treating doctors were of the view that the plaintiff suffered a soft tissue injury, which was superimposed on pre-existing degenerative changes, which had been asymptomatic prior to the accident. Further, the plaintiff’s treating doctors were of the view that the Plaintiff will never be fit for his pre-accident employment, however, with completion of an intensive rehabilitation programme, he may be fit for lighter work in the future.

The defendant’s medical evidence was to the effect that the plaintiff suffered a minor soft tissue strain to his back, which should have recovered within twelve/eighteen months at most. The defendant’s medical experts were of the view that his ongoing complaints of pain were owing to the pre-existing degenerative changes in his back. The defendants further argued that the Plaintiff has allowed himself to become physically deconditioned, by not exercising and by not doing any work.

In his evidence to the court, the Plaintiff submitted that he tried to do certain activities at home such as mowing the lawn or general gardening, but was unable to do so due to the pain and discomfort in his back.

In reaching their decision, the court accepted the evidence of the plaintiff and of his GP, that prior to the time of the accident, the plaintiff’s back had been asymptomatic. The court noted that the plaintiff did not have private medical insurance, and therefore it was understandable that he had not had certain recommended treatment to date. Indeed, the court noted that the plaintiff has paid for his physiotherapy and injection treatment out of his own, much reduced, income. The plaintiff’s pre-accident net weekly pay was €891, whereas he was now merely receiving the social welfare pension. The court also took into account the fact that one of the Defendant’s witnesses had described the plaintiff as genuine, who was not exaggerating his complaints.

Accordingly, the court awarded the sum of €268,589 to the Plaintiff. This sum consisted of both general damages for pain and suffering and various other special damages, such as loss of earnings.

Guidance for Employers

It may be that one plaintiff, who is injured in an accident very similar to another plaintiff, may recover much more quickly. As long as the court is satisfied that the plaintiff who does not recover as quickly, is not malingering or trying to exaggerate their symptoms, the defendant must take the second plaintiff as he finds him. This is known as the operation of the “eggshell skull rule”, which provides that a tortfeasor must take his victim as he finds him. This principle has long been accepted in Irish law
https://www.courts.ie/viewer/pdf/faa26303-935b-4fb5-b2b9-cfa7c50f262a/2022_IEHC_195.pdf/pdf#view=fitH