Daly v General Steam Navigation Company Ltd (Dragon)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE BRIDGE,LORD JUSTICE TEMPLEMAN |
| Judgment Date | 20 May 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0520-4 |
| Docket Number | 1974 Folio 731 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 1980 |
[1980] EWCA Civ J0520-4
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bench Division
Lord Justice Ormrod
Lord Justice Bridge
Lord Justice Templeman
On Appeal From The High Court Of Justice
Queen's Bench Division
MR P. BENNETT, Q. C.., and MR M. HOWARD (instructed by Messrs Ingledew, Brown, Bennison & Garrett) appeared on behalf of the Appellants.
MR A. HAMILTON, Q. C.., and MR A. PARDOE (instructed by Messrs Stocken & Co.,) appeared on behalf of the Respondent.
I will ask Lord Justice Bridge to deliver the first Judgment.
On 7th July 1971 the Plaintiff was a passenger on a vessel belonging to the Defendants. She was going to travel from Rosslare in Ireland to somewhere on the Continent of Europe, when she met with a most grievous accident which caused her extremely serious injuries to her right shoulder and arm.
In due course, she claimed damages against the Defendants, and the matter came for trial before Mr Justice Brandon who, on the 10th July 1978, gave judgment for the Plaintiff in a sum of damages which was made up of a number of different items.
He awarded £1,689 special damages; he awarded £2,691 for what he described as the "Plaintiff's partial loss of housekeeping capacity up to the date of trial", and £8,736 in respect of the Plaintiff's future partial loss of housekeeping capacity. Finally, for pain and suffering and loss of amenity, he awarded a sum of £8,000. He aggregated the special damage with the partial loss of housekeeping figure up to the date of trial, making a total of £4,380, and on that figure he awarded interest from the date of the accident to the date of judgment at half the short term investment rate, and on the balance of the judgment he awarded no interest.
The essence of the appeal before the court against the Judgment is directed at the awards which the learned Judge made for what he described as "partial loss of housekeeping capacity", and at a late stage a cross-appeal has been entered on behalf of the Plaintiff, complaining of his failure to awardinterest on the damages in respect of pain and suffering and loss of amenity.
I have said that the Plaintiff suffered extremely severe injuries to her right shoulder and arm. The nature of those injuries, the history of the long series of visits to hospital which the Plaintiff had to undergo, and the consequences of the injuries are all accurately and succinctly summarised in the Judgment of the learned Judge. I could not equal, let alone improve, upon that summary if I tried. I therefore propose to adopt what the learned Judge said in his Judgment beginning with the passage which begins oh page 14, between letters and F: "The damages issue. After the accident the Plaintiff was taken by ambulance to Wexford County Hospital and detained there. She was found to have a comminuted fracture of the right shoulder and paralysis of the right arm. An operation was carried out on her during the night, consisting of open reduction and fixation with a four hole plate with four screws. This involved a surgical incision on the anterolateral surface of the right shoulder. On the 9th June, 1971, the Plaintiff was transferred to St Mary's Orthopaedic Hospital, Cappagh. She was found to have extensive bruising of the right side of the neck, the right shoulder aid the right arm, and laceration of the medial side of the arm. There was no muscle reaction at all in the right arm. She was treated with physiotherapy and discharged home on the 6th August, 1971.
"On the 22nd August, 1971, a plaster was applied, and on the 8th September she was examined again at Cappagh Hospital where fresh X-rays were taken. It was found that the bruising hadgone and that a 4" surgical incision on the anterolateral side of her arm and a 3" laceration on the posterolateral side had both healed. The fracture, however, had not united and there was very little movement of the shoulder joint. There was some flexion movement in the fingers and thumb of her right hand, but no dorsiflexion movement in either the fingers or the wrist joint.
"The conclusion was reached that there had been damage to the nerve supply of her right arm. Arrangements were made to have her return to the hospital for a further bone graft operation consisting of the removal of bone from the iliac crest and the placing of it round the fracture in the right shoulder.
"On the 13th September, 1971, the Plaintiff was re-admitted to Cappagh Hospital, and on the 15th September the bone graft operation was carried out. On the 22nd September a plaster was applied, and on the 4th November she was discharged home again. On the 29th November she went into Cappagh Hospital again and the plaster was removed. On the 22nd December she was allowed home again.
"On the last day of December 1971 and during the first two weeks of January 1972 the Plaintiff attended as an out-patient at St Vincent's Hospital for treatment by physiotherapy. She was in Cappagh Hospital again from the 12th to the 21st January, presumably for observation, and from the 26th to the 28th January, when a pin which had been put in her shoulder was removed. She had further spells in Cappagh Hospital: from 31st January to the 4th February, and from the 7th February to the 11th February. She then continued to receive physiotherapyas an out-patient at St Anthony's Rehabilitation Centre until the 19th May, 1972.
"The Plaintiff's shoulder was still very stiff and it was recommended in May that she should have manipulative treatment in hospital. She went into Cappagh Hospital again from the 26th to the 28th September, 1972, to receive such treatment, and there was a slight increase in the movement of her shoulder as a result.
"In May, 1973, a further examination showed that there had been some improvement in the function of the Plaintiff's right hand. The main problems were stiffness in the shoulder and the absence of any extension movement of the wrist. The fracture itself had now united.
"In August and September, 1973, the doctors decided that the Plaintiff should have a further operation, consisting of tendon transplant, but, due to industrial action, there was a delay of several months in making the necessary arrangements. On the 4th February, 1974, she went into Cappagh Hospital again for this further operation, in which flexor muscles were transferred to the back of her wrist.
"On the 14th February she returned home again in plaster, which remained on until the 19th March. From then until the end of April she received further treatment by physiotherapy at St Vincent's Rehabilitation Centre.
"On the 2nd May, 1974, she was examined again. Her shoulder was painful. She had ¼ of the normal range of movement at the shoulder joint. The transplanted tendons were working and there was some extension movement at the wrist.
"On the 15th July, 1974, there was another examination.The transplant was working and the grip of her hand was fair, but there was no extension movement of the wrist against resistance. Exercises at home were recommended.
"The last examination of the Plaintiff took place on the 28th July, 1975. There was abduction movement at the right shoulder of 90o, but this was only possible when the arm was held forward. She was unable to lift her arm above shoulder level. All the movement was between the shoulder blade and the underlying chest wall. There was no active or passive abduction movement at the shoulder joint. There was only a very small amount of rotation at the shoulder. As regards the elbow joint, there was full extension movement, flexion of 10o from a right angle position, full pronation movement, and ¼ of normal supination movement. As regards the fingers, there was full extension movement except for a slight terminal restriction of the little finger which was slightly clawed; full flexion at all finger joints and half normal flexion at all knuckle joints. The hand grip was fair. As regards the wrist, there was good power of wrist flexion but dorsiflexion, though present, was not active against resistance. As regards the muscles, charting showed that there was good power in the small muscles of the right shoulder; the deltoid muscle had more than half normal strength; there was some slight weakness of the elbow flexor muscles; there was considerable weakness of all muscles which extend the wrist and fingers; the flexor muscles were strong; there was some weakness in the small muscles of the hand; and there was some diminution of sensation in the hand and forearm.
"There was no evidence that the Plaintiff's condition had improved significantly since that last examination of July 1975, which can therefore be regarded as showing her final condition after all medical treatment to improve it had been given.
"The Plaintiff's accident, besides producing the physical injuries and consequences of them which I have described, also had a serious psychological effect on her. She suffered from severe depression, and there was an adverse effect on her relationship with Mr Daly which put her marriage under strain. She has also suffered from dizzy spells from time to time and from insomnia."
The consequences of the extremely grave injuries which she sustained, the Plaintiff summarised in Particulars which are also adopted by the learned Judge as part of his Judgment and held by him to have been fully substantiated, which I will read: "(i) As a result of the injuries caused to her in the accident the Plaintiff, who was before the accident right-handed, has been rendered unable to carry out activities requiring full use of her right arm including – (a) Ordinary housework such as ironing and vacuum-cleaning and making of beds. (b) Gardening, (c) Driving,...
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Table of cases
...ABCA 189 .............................................................. 366 Daly v General Steam Navigation Co Ltd, The Dragon (1980), [1980] 3 All ER 696, [1981] 1 WLR 120, [1980] 2 Lloyd’s Rep 415 (CA) ................................................................................... 186......