The High Court has approved a settlement of €1.9 million in the case of a cash-in-transit van driver injured in a road crash after continuing to work as a driver despite having a history of fainting.
Anthony Bourke, aged 66, from St Patrick's Road in Limerick, was airlifted to hospital after he crashed into a ditch near Tarbert in Co Kerry on 11 May 2018.
He suffered a traumatic brain injury and now has permanent disabilities.
Senior Council Henry Downing told the High Court that Mr Bourke had a history of losing consciousness and had episodes in 1998, 2001, 2002 and 2009 after which he was deemed unfit to drive for a year.
However, after he was certified fit to return to work in 2010, no medical assessment was carried from then until the time of the crash in 2018.
Mr Downing said his client was involved in nine accidents over a number of years and that colleagues were nervous going out with him. All of these events, combined with his history of a stroke, diabetes and other conditions should have triggered occupational health assessments, Mr Downing said.
In an action against his employers, G4S Cash Solutions Ireland Ltd, it was claimed the company should not have allowed him to drive when there was a risk of him having an episode of unconsciousness.
It was also claimed there was a failure to ensure he underwent regular medical assessments considering his underlying conditions and history of stroke and loss of consciousness and a failure to ensure that he met the requirements of the Road Safety Authority’s medical fitness to drive guidelines.
Watch: Ruling ensures Anthony Bourke can access care and supports needed to 'live life with dignity'
It was also alleged the weight of the vehicle made it unsafe for road holding and control.
The claims were denied and the settlement was reached after mediation without admission of liability.
The defendants had denied any negligence and expert reports on their behalf said the accident was due to driver error and that Mr Bourke’s current cognitive difficulties were due to a pre existing long term condition. Reports from motor assessors for the defendants also said the vehicle was not overweight.
Mr Justice Paul Coffey approved the settlement, noting that because Mr Bourke had no memory of the accident it could not be established what actually happened and there was no guarantee his case would succeed if it went to trial. The judge said it was a fair and reasonable settlement and wished Mr Bourke well.
The judge was told that while Mr Bourke is being cared for in a nursing home, all of his needs were not being met and he needed to move to more appropriate accommodation, which would involve an element of independent living along with additional supports.
Afterwards Mr Bourke's niece, Sinead Stapleton, who is a co decision maker for him said the case had always been about safety and accountability.
"Employers' liability, occupational health and medical fitness-to-drive laws exist to protect workers and the public. Their importance cannot be underestimated," she said.
Ms Stapleton said the family had faced significant challenges accessing appropriate neurorehabilitation services outside of the National Rehabilitation Hospital.
"Tony’s needs are complex, yet too often he fell between services - too complex for some supports but not qualifying for others. That reflects a wider gap in regional neuro-rehab care," she said.
Ms Stapleton said said apart from nursing homes, long term accommodation for those living with acquired brain injury was extremely limited.
"Unfortunately, we cannot undo the past. But this mediated settlement will now secure the care and accommodation Tony needs to live with dignity and stability in the years ahead.
"We want to thank all the medical professionals who have supported Tony throughout his journey. Finally, we want to thank our legal team, Ronan Hynes of MHP Sellors and our barristers for their unwavering efforts in bring this case to a success."
Mr Bourke's solicitor, Ronan Hynes, said an acquired brain injury changes every aspect of a person’s life.
"It can affect independence, mobility, communication and daily functioning, and it often requires lifelong care and specialist support."
He said the settlement will ensure his client has access to the specialist neuro-rehabilitation, full-time care and adapted accommodation he requires "so that he can live with dignity and the greatest possible level of independence."
Mr Hynes said the case "highlights the critical importance of early rehabilitation, multidisciplinary care planning and appropriate long-term supports for people living with serious brain injury. The case also highlights the importance of access to community rehabilitation services for people living with serious brain injury across the country."
