About this case:

• Citation:
  [2023] IEHC 132
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Deirdre Murphy

Delivering judgment in the case, Ms Justice Deirdre Murphy applied the procedure contained in Lipinski (A Minor) v. Whelan [2022] IEHC 452 and awarded €60,000 for the plaintiff’s foot injury as the dominant injury. The court then considered the other injuries, which had individual values totalling €65,000. Taking account for the overlap in injuries, the court awarded €32,500 for the uplift under the Guidelines.

Background

The plaintiff was a 61-year-old lady at the time of the accident. In December 2019, while driving her car along a dark and narrow country road, she was involved in a head-on collision with another vehicle. The accident was described as “very violent” with the car being spun around. The car also filled with smoke, the airbags deployed and the door was pushed in.

The plaintiff managed to crawl to safety but no help arrived for hours. She was left crying during that time and was unable to provide care to her mother, for whom she was full-time carer.

The plaintiff brought personal injuries proceedings against the driver of the other vehicle, who drove on the wrong side of the road. The claim proceeded as assessment-only.

The plaintiff suffered complex intra-articular fractures to her metatarsals which resulted in damage to the joints and post-traumatic arthritis. The manner in which the fractures healed meant that the plaintiff suffered irritation and pain when she walked. These sequelae were unlikely to resolve and there was a high likelihood the she would develop a stress fracture in the future.

There was no simple solution to the plaintiff’s foot injury and it was likely to deteriorate slowly over time. The experts for both parties agreed that she would have severe ongoing foot pain.

The plaintiff also suffered other injuries in the accident. She developed PTSD as a result of the traumatic experience. She also suffered a concussion injury to her head and neck, and injuries to her lower back, right hip and dental bridge.

In applying the Personal Injuries Guidelines to the case, counsel for the plaintiff submitted that the foot injury fell into the “serious” injury category which attracted damages between €38,000 and €75,000. Counsel for the defendant contended that the injury fell into the “moderate” category which attracted damages between €20,000 and €45,000.

Submissions were also made in respect of the appropriate uplift in the case. Counsel for the defendant submitted that the “uplift” for multiple injuries under the Guidelines could never be more than the award for the dominant injury.

Counsel for the plaintiff submitted that multiple severe injuries may justify an uplift which was in excess of the dominant injury. It was said that the court should place additional injuries in the appropriate category and then provide a discount to take account of the temporal overlap in injuries.

High Court

Considering the issue of the proper uplift in the case, Ms Justice Murphy noted that the word “uplift” simply meant “to raise”. There was nothing in the Guidelines which suggested that the uplift was restricted to a proportion of the damages awarded for the main injury, the court held. The court said that it could envisage a scenario in which a fair and proportionate uplift would exceed general damages for a dominant injury.

The court gave the hypothetical example of a person who was severely injured in a road traffic accident where the dominant injury was grand mal epilepsy. However, he also had ongoing tinnitus, lost an eye, severe facial scarring and a severe psychological sequelae. He also had a severe back injury, impaired mobility, impaired bladder and bowel function. Finally, he had displaced fractures in his ankles.

The court said that the epilepsy might attract damages between €120,000 and €140,000 but the remaining injuries would have individual values of between €395,000 and €655,000. As such, an uplift of €200,000 or €250,000 in that circumstance would likely be appropriate, the court said.

A benefit of this approach was that it made clear how the court came to its conclusions on the appropriate damages in the circumstances, the court said. A fair and transparent procedure was to individually value each additional injury and provide a discount for the overlapping nature of the injuries.

In the present case, the court was satisfied that the foot injuries fell into the “severe” category and awarded €60,000 for that injury.

In respect of the PTSD injury, it was noted that the plaintiff suffered insomnia and no longer drove at night. She became depressed post-accident and could hardly get out of bed. She continued to take anti-depressant medication. Accordingly, this injury was valued at €35,000.

The head/neck injury was minor and had substantially recovered within two years. The court held that this was worth €10,000.

The lower back and hip injuries were exacerbated by pre-existing problems which were recorded in the plaintiff’s medical notes. She had complained of pain in 2017 and a scan indicated that she had osteoporosis without pathological fracture. An MRI in 2018 showed bilateral degeneration of the hips and an X-ray showed osteoarthritis of the right hip in 2019. Accordingly, the back and hip injuries were in the minor category and valued at €20,000.

While the value of the additional injuries amounted to €65,000, the court provided a discount for the roll up factor and the overlap of injuries. The court held that €32,500 was fair and just compensation for the additional pain and discomfort arising from the lesser injuries.

Conclusion

The court made an award of €105,500, being €92,500 in general damages plus €13,000 in agreed special damages.

McHugh v. Ferol [2023] IEHC 132