High Court: €86,000 for young woman who sustained facial scarring in car accident

About this case:

• Citation:
  [2023] IEHC 366
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment in the case, Ms Justice Marguerite Bolger accepted that the plaintiff had decided not to pursue a career in beauty therapy due to the scarring, which was permanently visible at a conversational distance. The court awarded €60,000 for this injury, with an uplift of €30,000 for the non-dominant injuries including scarring on the wrist and an adjustment disorder.

Background

The plaintiff was an 18-year-old who was in school at the time of her accident in April 2019. She issued personal injuries proceedings against the motorist who struck the vehicle she was travelling in. The plaintiff hit her head during the collision and had no memory of the incident. She was not wearing a seat belt at the time of the accident.

The matter proceeded as an assessment of the plaintiff’s damages with a claim for contributory negligence arising from the plaintiff’s failure to wear a seat belt. In this regard, it was outlined that both airbags deployed but the defendant was wearing his seat belt and did not sustain injuries.

In respect of the contributory negligence, there was a dispute as to whether the plaintiff hit her head off the windscreen or the passenger window. The windscreen had not shattered in the accident but the passenger window had, and it was submitted that the defendant’s engineering evidence was incorrect to state that the impact occurred against the windscreen.

In terms of the plaintiff’s injuries, it was outlined that the plaintiff sustained deep abrasions to her right temple and anterior hairline. As a result, she suffered significant permanent scarring to her face and caused her to considerable upset in respect of her physical appearance. The plaintiff was interested in makeup and beauty therapy and, although she successfully entered a beauty therapy course, she dropped out due to the effects of her injuries.

The main scar to her face was 9cm by 4cm and was noticeable at a conversational distance. She was very self-conscious about her scars and wore heavy makeup to conceal them as much as possible.

The plaintiff was also diagnosed with psychological injuries following the incident. It was opined that she had developed an adjustment disorder with depressive features at the time. She was prescribed antidepressant medication but stopped taking it after a few days.

The plaintiff continued to experience soreness on the scar on her wrist after the accident. She also complained of headaches post-accident.

High Court

Ms Justice Bolger began by considering the appropriate level of contributory negligence for failing to wear a safety belt. It was noted that a failure to wear a seat belt usually resulted in contributory negligence of between 10 and 25 percent (see O’Sullivan v. Ryan [2005] IEHC 18). The court held that it was satisfied the engineering evidence established that the plaintiff had hit her head on the windshield and, accordingly, the failure to wear a seat belt contributed to the accident.

The court held that 25 percent was a “high assessment of contributory negligence” in a context where the plaintiff was only two weeks past her 18th birthday. However, the plaintiff was an adult and responsible for her actions. Contributory negligence was assessed at 20 percent, which the court noted had been applied by the Supreme Court in Ward v Walsh (unreported decision, 31st July 1991).

In assessing the injuries, the court noted that it was necessary to identify the dominant injury’s value and provide an uplift for any further injuries sustained (see Lipinski (A Minor) v. Whelan [2022] IEHC 452; McHugh v. Ferol [2023] IEHC 132). The court rejected the submission of the plaintiff’s counsel that the facial scarring and wrist scarring could be “co-dominant” injuries. The dominant injury was clearly the facial scarring.

The court noted that a competitive dancer had received €50,000 for facial scarring (Flynn v. Saint-Gobain Building Distribution (ROI) Ltd t/a PDM (decision of Reynolds J., 25 November 2022), although that plaintiff had continued with his career whereas the present plaintiff did not. 

Accordingly, the court determined that the plaintiff’s dominant injury was valued at €60,000, having regard to the nature of the scarring and the effect it had on the plaintiff. The scars were not severe enough to be classified as “severe” under the Personal Injuries Guidelines.

In terms of the potential uplift, the court noted that a moderate hand injury was valued between €10,000 and €25,000. Non-facial scarring involving a noticeable scar with minor cosmetic defect was valued between €1,000 and €40,000.

The court outlined that €25,000 had been provided as an uplift for a minor cosmetic thigh scar in Lipinski. The court determined that it would apply a €30,000 uplift in the case.

The court also awarded €15,000 in special damages arising from the plaintiff’s makeup costs to cover the scarring. Additional special damages were agreed at €2,596.

Conclusion

Applying the 20 percent reduction, the plaintiff was awarded €86,076.80. The plaintiff was entitled to her costs unless the defendant could satisfy the court to the contrary.

Power v Malone [2023] IEHC 366