High Court: €63,000 personal injuries award for sportsman on appeal

About this case:

• Citation:
  [2023] IEHC 617
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Mark Heslin

Delivering judgment for the High Court, Mr Justice Mark Heslin commented that “the defendants must ‘take’ the plaintiff as they ‘find’ him” and that the defendants’ submissions “must…yield to facts and it is the facts which emerge from a careful consideration of the evidence which underpin this court’s view as to the appropriate level of compensation due to the plaintiff”.

Background

The plaintiff was a keen sportsman who participated in a wide range of activities, such as golf, snowboarding, cycling, running and swimming. 

The plaintiff and his family were driving home from Dublin to Kilkenny. In the course of the journey, the plaintiff had a green light in his favour and when he proceeded through the traffic lights, a jeep collided with him from the right and drove his car into a stone wall.

The plaintiff hit his head on the window and was briefly knocked unconscious. When Gardaí arrived to the scene, the driver of the jeep failed a breathalyser test, and was found to be uninsured and subject to a 15-year driving ban.

The plaintiff attended his GP with headache, neck pain, shoulder pain and lower back pain, and was out of work as a fitter for three months. The plaintiff eventually changed jobs to work as a fitter in a pharmaceutical company, which he found to be less taxing considering his injuries.

As the plaintiff had enjoyed competing in duathlons and triathlons prior to the accident, he was advised by his physiotherapist and doctor to try to recover his pre-accident fitness. Accordingly, he participated with difficulty in a duathlon approximately five or six months following the accident, and in the swimming portion of a triathlon in 2017.

In respect of his head injuries, the plaintiff described himself as continuing to suffer from headaches, irritability and initial memory loss. The plaintiff’s shoulder injuries had resolved by the time of his appeal, with his neck pain improving to a 2 – 5 out of 10. Likewise, the plaintiff’s back pain had not fully resolved, despite treatment with exercise and physiotherapy.

As a result of his injuries, the plaintiff experienced ongoing difficulties with his sporting activities, with household tasks, with driving, and was found to have an element of post-traumatic stress disorder. 

The High Court

The matter came before the High Court for a de novo appeal from the Circuit Court.

Mr Justice Heslin found that the medical evidence proffered on behalf of the plaintiff evidenced that he made “genuine but unsuccessful efforts” to regain his pre-accident state, and had to give up sporting pursuits that he previously enjoyed and he had suffered adverse effects on his social, working and family life as a result of the accident, which he had not fully recovered from four years later.

The plaintiff was cross-examined on the contents of the medical reports, and particularly on a 2017 report which anticipated that no further treatment would be required into the future. Mr Justice Heslin remarked that this line of cross-examination ignored the fact that further treatment was required, and that the plaintiff had sought medical assistance approximately 34 times by 2020.

The Court noted that a “second theme” in the plaintiff’s cross-examination centred around his participation in the 2017 triathlon, in support of which the second defendant produced a single page document concerning the triathlon which had not featured in the Circuit Court hearing and for which no witness was present to prove its contents. Mr Justice Heslin stated that the plaintiff gave “clear, cogent and consistent” evidence in relation to same.

Quantum

The Court relied upon the Court of Appeal in Shannon v O’ Sullivan [2016] IECA 93 to the effect that an award of general damages must be (i) fair to the plaintiff; (ii) proportionate to social conditions; and (iii) proportionate within the scheme of awards made for other injuries. 

The Court also relied upon the guidance in Shannon in respect of assessing the severity of injuries, the appropriate sum to be awarded by way of general damages to date, and the appropriate approach to general damages for pain and suffering into the future.

Finding that the plaintiff’s continuing lower back pain was the most significant of his injuries, Mr Justice Heslin decided that the correct approach was to begin with the most significant injury and to make appropriate adjustments for additional injuries. Noting that a pre-existing condition had been exacerbated, the Court determined that the impact on the plaintiff’s life was significant, placing his back injury in the moderately severe Book of Quantum range.

As to the plaintiff’s head injury, the Court found that the evidence of concussion, of post-concussional syndrome, and of post-traumatic stress disorder placed the injury in the moderate category. The plaintiff’s mental health injuries, such as his anxiety, irritability and stress had since resolved, and were found by Mr Justice Heslin to be minor in nature.

Making a finding that the plaintiff’s neck pain continued for years post-accident, the Court confirmed that this injury was moderate in nature.

Finding the plaintiff to be “entirely blameless”, Mr Justice Heslin observed that the central proposition advanced by the defendant was that there was a disconnect between the plaintiff’s evidence and what was recorded in the medical reports, a proposition that the Judge disagreed with.

Commenting that “the defendants must ‘take’ the plaintiff as they ‘find’ him”, the Court stated that this was a plaintiff who was required to spend long periods in a car due to his employment, and that his job involved a lot of bending, twisting and awkward movements which the accident impacted upon.

Noting that at all times the plaintiff followed the medical evidence given, the Court concluded as a matter of fact that the plaintiff was unable to return to participation in sports which were previously important to the enjoyment of his life, such as golf and cycling. The Court further recognised that the loss of his sporting activities would continue to affect the plaintiff into the future.

Conclusion

The Court concluded that the plaintiff was entitled to general damages in the sum of €50,000, comprising of (i) €35,000 in respect of his lower back; (ii) an uplift of €10,000 for his head injury (inclusive of concussion; post–concussional syndrome and mental health damage; and (iii) a further uplift of €5,000 for his neck/shoulder injury. The Court made a further award of €6,000 was made in respect of future loss, and special damages had been agreed in the sum of €7,000.

Bernard Faughan v Jason Kearney and Motor Insurers’ Bureau of Ireland [2023] IEHC 617