Coughlan v CGR Construction Ltd and Another

• Jurisdiction: Ireland
• Judge: Ms Justice Carmel Stewart
• Judgment Date: 17 November 2023
• Neutral Citation: [2023] IEHC 639
• Court: High Court
• Docket Number: [Record No. 2022/4816P]

Between

Derek Coughlan

Plaintiff

and

CGR Construction Limited

and

Niall O'Sullivan

Defendants

[2023] IEHC 639

[Record No. 2022/4816P]

THE HIGH COURT

Personal injuries – Damages – Assessment – Plaintiff seeking damages – Whether the plaintiff’s shoulder injury should be categorised at the upper end of the scale

Facts: The plaintiff, Mr Coughlan, on 13 August 2020, was driving from Howth County Dublin to his home in South Dublin. Whilst stopped at a main traffic junction and heading in the direction of the M50, his car was rear-ended by the vehicle of the defendants, CGR Construction Ltd and Mr O’Sullivan, which was a large truck which had bull bars on the front. The impact of the rear-ending was such that the rear window of the plaintiff’s car was shattered and the car was ultimately written off. His case was that he sustained significant injuries as a result of the accident. The personal injury case came before the High Court for assessment of damages only. At issue was the amount the court should award by way of general damages for his pain and suffering to date and into the future, together with a decision on a claim for special damages.

Held by Stewart J that, based on the evidence both of the plaintiff, who she found to be a reliable and credible witness, and of the medical reports before her, the plaintiff suffered an injury to his right shoulder which had involved a tear to his rotator cuff which was established on radiological examination. She regard this to be the dominant injury for the purpose of this assessment. This had caused and continued to cause ongoing pain and distress to the plaintiff, and she was satisfied that he would in due course require to undergo orthoscopic surgery. She categorised the injury as being a serious shoulder injury captured by sub. (b)(iii) of the Personal Injuries Guidelines, i.e., rotator cuff injury with persisting symptoms notwithstanding surgery. She categorised it at the upper end of the scale and proposed awarding a sum of €75,000 by way of general damages being €50,000 for pain and suffering to date and €25,000 for pain and suffering into the future. With regard to the headaches that he had given evidence of and had been enduring since the accident, she was satisfied that they amounted to a type of head injury. However, she thought the position of the plaintiff was not fully captured within the subcategories outlined in the Guidelines. This being so she exercised her discretion in order to determine an appropriate level of damages. In her view a sum of €30,000 compensation for those headaches would be appropriate if it was a stand-alone award. With regard to the balance of the injuries complained of by the plaintiff, she was satisfied that he suffered an injury to his left wrist which healed in a relatively quick period of time and that a figure of €1,000 was appropriate in respect of same. In respect of the neck injury, she agreed with the defendants that this was also in the minor category, and she would award a sum of €1,000 for same. With regard to the rib/chest injury, this seemed to her to have been soft tissue trauma to his chest which cleared up in a relatively quick time, and she also attributed a sum of €1,000 by way of damages. Whilst she had determined to award the plaintiff a sum of €75,000 by way of general damages in respect of the shoulder injury, she proposed uplifting/increasing the overall award by €15,000 making it a total of €90,000 by way of general damages which in her view was a just and proportionate compensation to the plaintiff for the additional injuries which accompanied the dominant injury which he had suffered as a result of the accident. She was satisfied that the figure of €6,758 should be awarded by way of special damages for the purposes of the plaintiff obtaining the requisite orthopaedic surgery to repair his shoulder injury.

Stewart J held that, in total, she would award the plaintiff the sum of €96,758 by way of damages in this matter. She awarded the plaintiff the costs of the action with costs to be adjudicated in default of agreement.

Damages awarded to plaintiff.

JUDGMENT of Ms Justice Carmel Stewart delivered on the 17th day of November 2023

1 . This is a personal injury case which came before the court for assessment of damages only. At issue is the amount this court should award by way of general damages for the plaintiff's pain and suffering to date and into the future, together with a decision on a claim for special damages.

2 . The plaintiff was born on 12 May 1963. He had worked as a floor installer since the age of 17 years up until in or around 2016. On 13 August 2020 he was driving from Howth County Dublin to his home in South Dublin. Whilst stopped at a main traffic junction and heading in the direction of the M50, his car was rear-ended by the defendant's vehicle which was a large truck which had bull bars on the front. The impact of the rear-ending was such that the rear window of his car was shattered and the car was ultimately written off. The plaintiff's case is that he sustained significant injuries as a result of this accident. In and around 2016 he had suffered a myocardial infarction and had a stent fitted. Initially after the impact he described feeling sick and dizzy and that his head and shoulder were sore and his chest was sore, however, he was more concerned about his stent and whether it had been affected by the impact of the rear-ending. His evidence was that his wrist was injured from holding the steering wheel, however, within a few weeks it had cleared up. He also described that his chest area was sore for a few weeks but also cleared up. His evidence was that when he heard about the potential for a fractured rib he was concerned about his stent because he knew that he had to be careful about certain things that could dislodge it or cause a problem with it. In any event the stent was unaffected by the accident. He described pain in his upper body and shoulder where the seatbelt would have caught it and he said that he still feels it when he moves. He describes still having this pain and the severity of it depends upon what he is doing at a particular time, and he described dressing and washing as being particularly difficult. He received steroid injections which gave him relief temporarily, but he was disappointed that they didn't provide any lasting relief. He had come under the care of Mr Hannan Mullett, Orthopaedic Surgeon and the ultimate plan is for orthopaedic surgery for a repair of a rotator cuff injury.

3 . He also described suffering headaches after the accident. He stated that he had never had headaches before except an occasional mild one but never anything quite like this. He stated that he gets different types of headaches, and described the categories of headaches to the court. He said the first category is the most worrying; it is like sticking a pin into a point in his head. The pain moves and shoots out in a line and then stings at a different point several times in the space of a few minutes, if he was driving he would sometimes have to pull over. The second category of pain is in the back of his head; a heavy pulsating headache, and he said it is worse when it happens in the front. He doesn't take medication for this, however, the headaches affect his concentration and he is worried about this on top of everything else. He said the headaches could be every hour or nothing for several days and they can be quite severe. He was referred approximately two years ago by his GP to the St Vincent's Hospital Neurology Department and he has now received an outpatient's appointment for 15 November 2023.

4 . The medical reports in this case were agreed.

5 . It is common case that the Personal Injuries Guidelines which were adopted by the Judicial Council on 06 March 2021 apply to this case (hereinafter referred to as ‘the Guidelines’).

6 . The operation of the Guidelines was discussed by my colleague Coffey J in Lipinski v Martina Whelan [2022] IEHC 452.

7 . Coffey J refers to section 99 of the Judicial Council Act 2019, which provides as follows:

“(1) The court shall, in assessing damages in a personal injuries action —

(a) have regard to the Personal Injuries Guidelines (within the meaning of section 2 of the Judicial Council...