Boles v ABP Ireland trading as ABP Cahir
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 25 October 2017 |
| Neutral Citation | [2017] IECA 274 |
| Date | 25 October 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2017] IECA 274 Record No. 2014/1044 [Article 64 Transfer] |
[2017] IECA 274
THE COURT OF APPEAL
Irvine J.
Peart J.
Irvine J.
Whelan J.
Neutral Citation Number: [2017] IECA 274
Record No. 2014/1044
[Article 64 Transfer]
Damages – Injury – Pain and suffering – Appellant seeking to appeal against High Court judgment and order made in favour of the respondent – Whether sum awarded to the respondent was excessive
Facts: The appellant, ABP Ireland, appealed to the Court of Appeal against the judgment and order of the High Court (O’Neill J), dated respectively the 25th October, 2013, and the 8th November, 2013, made in favour of the respondent, Mr Boles, arising out of injuries allegedly sustained by him in the course of his employment with ABP on the 25th May, 2007. O’Neill J awarded him a total sum of €257,000 made up in the following manner: (i) pain and suffering to date: €60,000; (ii) pain and suffering into the future: €30,000; (iii) loss of earnings to date: €115,000; (iv) loss of earnings into the future: €50,000; and (v) miscellaneous: €2,000. ABP appealed almost all aspects of the High Court decision, submitting that: 1) the trial was unsatisfactory insofar as the trial judge failed to take into account Mr Boles’ own evidence as to how he sustained his injury; 2) as to the quantum of damages awarded by the trial judge in respect of pain and suffering to date and into the future, the award was overly generous having regard to the evidence and was disproportionate to the extent that it should be set aside; 3) concerning the award made in respect of loss of earnings, the trial judge failed to have regard to the evidence of Dr Gleeson, a specialist in occupational health acting on behalf of ABP, to the effect that following her assessment of Mr Boles in 2011 she considered him fit to return to some level of administrative work, had offered to provide him with a rehabilitation programme and had written to his general practitioner to that effect.
Held by Irvine J that she rejected ABP’s submission that the trial judge’s finding to the effect that Mr Boles was struck to the left side of his head by ABP’s conveyor could not be sustained; whilst his conclusion was based on inferences he drew from the evidence given by Dr McCarthy and the left sided complaints made by Mr Boles in terms of symptoms, she was not be prepared to draw an alternative inference not having had the opportunity of hearing and assessing the witnesses. She also rejected ABP’s submission that the award made for loss of earnings to date and into the future was excessive, having regard to the evidence. She was satisfied that the award made was indeed supported by credible evidence. Likewise, she rejected ABP’s submission that the sum awarded in respect of loss of earnings was excessive by reason of the failure of the High Court judge to consider whether or not Mr Boles complied with his obligations to mitigate his loss by seeking to return to work.
Irvine J held that, having considered the submissions of ABP and the evidence before the Court concerning Mr Boles’ injuries, she was satisfied that the total sum awarded in respect of pain and suffering to date and pain and suffering into the future of €90,000 was excessive and could not be considered to be an award which was just, fair and proportionate, as was required. She was satisfied that a just, fair and proportionate award for the injuries sustained by Mr Boles would be a sum of €60,000. Having regard to the discrepancy between that figure and the award made by the High Court judge, she considered his award to be sufficiently excessive such that it must be considered to be a legal error. She proposed that the High Court award would be varied to allow a sum of €45,000 in respect of pain and suffering to date and a sum of €15,000 in respect of future pain and suffering with the result that the overall award be reduced to €227,000.
Appeal allowed in part.
This is the appeal of the defendant, ABP Ireland, (‘ABP’) against the judgment and order of the High Court, O'Neill J., dated respectively the 25th October, 2013, and the 8th November, 2013, made in favour of the plaintiff, Mr. Hany Boles (‘Mr. Boles’) arising out of injuries allegedly sustained by him in the course of his employment with ABP on the 25th May, 2007.
In the High Court O'Neill J. found ABP liable in negligence for Mr. Boles's injuries and awarded him a total sum of €257,000 made up in the following manner:-
(i) Pain and suffering to date: €60,000
(ii) Pain and suffering into the future: €30,000
(iii) Loss of earnings to date: €115,000
(iv) Loss of earnings into the future: €50,000
(v) Miscellaneous €2,000
Total: €257,000
By notice of appeal dated the 29th November, 2013, ABP appealed almost all aspects of the High Court decision. That appeal has since been refined but nonetheless engages all of the categories of damages considered by the trial judge. That being so, it is necessary to engage briefly with the background facts.
Mr. Boles is an Egyptian national who was born on the 11th July, 1964, and came to reside in Ireland in 2003, he became an Irish citizen in 2012. Whilst he had a university qualification in Art, at the time of the accident the subject matter of the proceedings he was working with ABP as a general operative. As noted by the trial judge, Mr. Boles was working at a level well below that of his academic attainment because his entitlement to stay in Ireland was dependant upon his continued employment. His job was principally to wash the knives, trays and aprons used by butchers in an abattoir.
On the day he sustained his injuries Mr. Boles was apparently assisting a Mr. James Guerin, a fork lift truck driver, to manoeuvre a seven yard long conveyer through ABP's premises in Cahir, Co. Tipperary. Mr. Guerin was in the process of transporting the conveyer, which was straddling the forks of his fork lift truck, when he encountered a narrow passage making it impossible to bring the conveyer further. Ultimately, Mr. Boles and Mr. Golek, another employee of ABP, were directed to assist Mr. Guerin at which point the conveyer was placed on two dollies. Regrettably, when it was then pushed from behind, it toppled off the front dolly. Mr. Boles then positioned himself underneath one end of the conveyor so as to guide it as it was being lowered onto the dolly and whilst in that position it struck him on the head allegedly causing him injuries to his head, neck, left shoulder and left arm.
Having been struck on the head by the conveyor, Mr. Boles was examined by ABP's in house medical doctor, Dr. John McCarthy, who noted acute tenderness on the left side of the patient's head after which he referred him to South Tipperary General Hospital for further evaluation and treatment.
In the aftermath of his accident Mr. Boles developed headaches and left sided pain in the area of his neck and shoulder of a type normally associated with soft tissue injuries. As a result of these symptoms he was unable to work. He was prescribed some pain killing medication and whilst also treated for anxiety at no stage was he considered to be clinically depressed. By the time his proceedings came to trial in 2013 Mr. Boles's treating doctors and medical experts were satisfied that as a result of sustaining a blow of some sort to his head he had, for perhaps as long as two years, suffered from symptoms consistent with a soft tissue injury to his neck and its adjacent structures. Thereafter, they were of the opinion that he had developed a somatic condition whereby he believed that he had pain in his neck, shoulder and arm when in fact this was not the case. As of the date of trial Mr. Boles had not been able to return to work and had been let go by his employer in November, 2011. Relevant in this regard is the fact that Mr. Boles's psychiatrist, Prof. Patricia Casey, considered he should improve with immediate effect after his litigation was concluded but was nonetheless satisfied that he would need therapy and intervention before he would recover fully and be able to return to work.
As to the mechanism of the injury sustained by Mr. Boles, the trial judge was satisfied that the conveyor had come down on his head striking him on the left hand side while he was in a crouched position. He was satisfied that the front end of the conveyer had struck him from a height of one or two feet delivering a heavy blow to the left side of his head causing it to be severely jerked on that side. He also concluded that his injuries were inconsistent with any other scenario he had been invited to accept.
In relation to liability the trial judge was satisfied that ABP was negligent in either permitting the conveyer to be dropped on Mr. Boles or in failing to allow him sufficient time to get out from underneath it as it was being lowered. He was also satisfied that there was no evidence to support any finding of contributory negligence.
The High Court judge allowed Mr. Boles his claim for loss of earnings to the date of trial in full, and in so doing rejected as ‘farcical’ his employer's efforts to establish that he had likely been exaggerating his symptoms so as to allow him remain out of work whilst claiming social welfare and pursue other interests. Likewise, the trial judge rejected as unmeritorious and unreasonable the efforts made by ABP to establish to his satisfaction that Mr. Boles was a malingerer. The trial judge was satisfied that Mr. Boles could not be criticised for not going back to work prior to trial.
As to his injuries the trial judge accepted Mr. Boles's evidence that he did indeed suffer from physical injuries including headaches,...
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