Court of Appeal: Damages halved for driver who injured elbow in car park accident

About this case:

• Judgment:
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Delivering the judgment of the Court, Ms Justice Irvine found that the amount awarded was excessive to the point that it must be considered a legal error, and said that the “injuries could hardly have been sustained in less traumatic circumstances”

Background

In 2016, the High Court judge made an award of damages in a total sum of €121,386.11 (€85,000 for pain and suffering to date, €30,000 for future pain and suffering, and special damages of €6,386.11) in favour of the plaintiff, Anna Fogarty as a result of injuries she sustained when Michael Cox reversed into the side of her car in Limerick Institute of Technology carpark in November 2011.

Mr Cox conceded liability in respect of the collision that occurred, but denied that the injuries claimed by Ms Fogarty were the result of that event.

Appealing the decision of the High Court, Mr Cox challenged the finding of causation against him, and also submitted that the damages awarded were double the amount that should have been awarded in the circumstances.

Appeal

Counsel for Mr Cox submitted that the trial was unsatisfactory insofar as the trial judge did not explain or seek to rationalise how he came to prefer Ms Fogarty’s causation case.

Counsel also maintained that the judge fell into error when deciding the liability issue insofar as he incorrectly concluded that Mr Cox had sought, impermissibly in his view, to rely upon the doctrine of novus actus interveniens.

As to quantum, counsel emphasised evidence to the effect that Ms Fogarty was expected to make a full and complete recovery within eighteen months of the date of trial; for the High Court judge to have awarded a six figure sum in respect of general damages was wholly disproportionate, unjust and unfair.

Counsel submitted that the overall award by the trial judge was double that which was appropriate in the circumstances.

Principles

“the well-worn principles” set out in Hay v. O’Grady 1 I.R. 210 applied when contemplating interfering with the findings of a trial judge.

As to the circumstances in which an appellate court may interfere with an award of general damages made by the trial judge, two of the most regularly cited decisions are those of Fennelly J. in Rossiter v. Dun Laoghaire Rathdown County Council 3 I.R. 578 and McCarthy J. in Reddy v. Bates I.R. 141.

As to the calculation of general damages, the prevailing jurisprudence demands that damages for pain and suffering be both just and fair.

As per M.N. v. S.M. 4 I.R. 461, an award must be

Nolan v. Wirenski IECA 56 and Shannon v. O’Sullivan IECA 93 also considered.

Regarding the principles discussed, Justice Irvine held that there was no basis upon which the Court could interfere with the findings of fact made by the trial judge insofar as causation is concerned.

Justice Irvine was not satisfied that Mr Cox “established any error on the part of the High Court judge such as would require his finding on the causation issue to be set aside. His findings of fact were supported by credible evidence. He did not reverse the burden of proof and he did not fail to analyse the evidence”.

Damages

Justice Irvine was not satisfied that the award in respect of general damages was just, proportionate or fair having regard to the injuries sustained, and also considering:

Justice Irvine accepted that Ms Fogarty had an unpleasant three years involving significant pain and discomfort in her right elbow and a lesser degree of pain in her shoulder.

However, the evidence did not establish that Ms. Fogarty did not live a relatively normal life during that period or that she was greatly curtailed in the activities she would otherwise have enjoyed.

Justice Irvine said that “at an absolute maximum an appropriate sum for pain and suffering to the date of trial would have been be an award of €45,000”, and that “a fair and just award in respect of pain and suffering into the future would be… €17,500”.

The award made “was excessive to the point that it must be considered a legal error and as such sufficient to warrant intervention” by the Court of Appeal.

Reducing the overall award to a sum of €62,500 general damages, and having regard to the agreed special damages of €6,386.11, Justice Irvine held that the total award made should be reduced to €68,886.11.