Court of Appeal: Woman who slipped in Tesco has award reduced from 1.4m to 1.2m on appeal

About this case:

• Judgment:
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Delivering the judgment of the three-judge Court of Appeal, Ms Justice Mary Irvine largely rejected submissions put forward by Tesco arguing that the award was excessive and disproportionate – emphasising that Tesco was liable for the woman being inflicted by significant disability.

Background

Tesco Ireland Ltd appealed against the judgment and order of the High Court, in which Mr Justice Robert Barr awarded Ms Patricia Walsh (49) a total sum of €1,439,495 damages in respect of injuries sustained by her in a fall which occurred at Tesco’s premises in August 2012 and in respect of which liability was conceded.

At the time of her fall, Ms. Walsh was in robust good health. She was hospitalised following the fall, and strong pain relieving medication and frequent injections were required. Ms. Walsh developed urinary symptoms and a loss of sensation in the genital area. She had problems both with urine retention and leakage. Ultimately self-catheterisation was commenced three times daily and Justice Barr accepted that she will require to self-catheterise in this fashion for the rest of her life. It was not contested that Ms Walsh lost the enjoyment of normal intimate sexual activity by reason of her injuries and that this situation would be permanent.

Despite surgery to insert a spinal cord stimulator in her back, the Court heard that Ms Walsh continues to have ongoing pain and this will likely be permanent with the result that she will require repeated rhizotomies and the ongoing replacement of her spinal cord stimulator over the course of her life.

In addition, Ms Walsh was diagnosed with post-traumatic stress disorder and depression, and consequently continues to need the support of ongoing counselling. It was accepted by Justice Barr that her psychiatric problems were unlikely to resolve themselves.

General Damages

Tesco argued that the awards of €125,000 for pain and suffering to the date of trial, and €135,000 in respect of damages for pain and suffering into the future was excessive.

Delivering the judgment of the Court of Appeal, Justice Irvine was in agreement with Justice Barr that as a result of Ms Walsh’s fall her life changed overnight and she became a woman afflicted by significant disability.

Consequently, Justice Irvine stated that she was “fully satisfied that the awards which he made in respect of pain and suffering to date and pain and suffering into the future” were proportionate.

Loss of Earnings

It was agreed that the award of €20,000 for loss of earnings to date represented double recovery and must therefore be deducted from the overall award.

For future loss of earnings, Justice Barr erred in law when he failed to discount the figure which he considered proved in respect of future loss of earnings to take into account the factors outlined in Reddy v Bates. Justice Irvine therefore reduced the award from €373,030 to €283,993.

Urology costs

Justice Irvine was satisfied that Justice Barr erred in law and in fact when he included within the sum allowed in respect of “future urology costs” a sum to reflect the future cost of the equipment required by Ms. Walsh for daily self-catheterisation – as this equipment would be covered by the Drug Repayment Scheme.

Thus, excluding €106,200, the total award was reduced to €26,550

Home help

Justice Irvine accepted that the law “is not clearly settled as to whether a plaintiff who is cared for through gratuitous services provided by their family and friends, is entitled to recoup at commercial rates, what that help would have cost them had they had to buy it in”.

Nonethless, Justice Barr’s approach was consistent with Yun v. MIBI and Tao IEHC 318, and in the absence of Tesco “being able to point to any specific facts in this case which would bring this case outside the rubric of that decision”, the award made by Justice Barr was not interfered with.

Miscellaneous Future Expenses

Justice Barr made an award of €192,882 for future costs of:

(i) replacing her spinal cord stimulator;

(ii) rhizotomy procedures;

(iii) GP visits;

(iv) physiotherapy;

(v) blood testing, and

(vi) counselling.

Justice Irvine was satisfied that Ms Walsh would require a rhizotomy every nine months, not every six months as considered by Justice Barr.

As such, the overall award under this heading was reduced from €192,882 to €175,159.

Aids and appliances

Justice Barr made an award of €239,846 in respect of the cost of the future aids and appliances, and Justice Irvine was not satisfied that Tesco has demonstrated that this sum was unsupported by credible evidence. As such, Justice Irvine refused to interfere with this award.

RRR

Tesco submitted that in calculating future special damages, Justice Barr used excessively high multipliers because he accepted as applicable an impermissible RRR on investment income.

Justice Irvine was satisfied that the decision in Russell v. Health Service Executive IECA 23 did not support the use of a RRR of 1% in relation to a claim for future loss of earnings.

Accordingly, Justice Barr impermissibly awarded a sum of €373,030 based upon a 1% RRR whereas assuming a RRR of 1.5% the capital value of that claim should have been €334,110 – therefore a deduction of €38,920 was required from the overall award.

Given all of the above, Justice Irvine calculated that the overall award should be reduced from €1,439,495 to €1,206,535.50.