Cronin v Stevenson

• Jurisdiction: Ireland
• Judge: Mr Justice John Edwards
• Judgment Date: 22 June 2016
• Neutral Citation: [2016] IECA 186
• Date: 22 June 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No: 238 / 2015 High Court Record No: 4728P/11

Ryan P.

Hogan J.

Edwards J.

BETWEEN/

GRACE CRONIN

Plaintiff/Respondent

-AND-

EMMA STEVENSON AND DARREN RUSSELL

Defendants/Appellants

[2016] IECA 186

Court of Appeal

Record No: 238 / 2015

High Court

Record No: 4728P/11

THE COURT OF APPEAL

Tort – Personal injuries – Road traffic accident – Award of damages – Appeal against High Court judgment

Facts: The respondent had been injured as a passenger in a taxi, which had been involved in a road traffic accident with a vehicle driven by the first appellant. Litigation led to an award of damages by the High Court in 2015. The appellants now sought to challenge the judgment at first instance.

Held by Mr Justice Edwards, the other Justices concurring, that the appeal would be allowed and the judgment set side. Having considered the medical reports submitted as evidence, the Court noted the recent decision of the Court of Appeal in Nolan v Wirenski [2016] IECA 56 which set out guidance as to the role of an appellant court considering an award of damages in such case. Applying this guidance and the principles set out in Rossiter v Dun Laoghaire Rathdown County Council [2001] 3 IR 578, the Court was persuaded to reduce the amount of damages awarded.

Judgment of Mr Justice John Edwards delivered on the 22nd day of June 2016

Introduction:

1 In this judgment the plaintiff/respondent will hereinafter be referred to simply as ?the plaintiff?, and the defendants/appellants will be referred to simply as ?the defendants?.

2 This is the defendants' appeal against the judgment and order of the High Court (Cross J) made in a personal injuries action on the 17th of April 2015.

3 The plaintiff was awarded a total sum for damages of ?200,000 plus the costs of the proceedings, which said costs were to be taxed in default of agreement. The said sum of ?200,000 was comprised of ?100,000 for pain and suffering to date, ?80,000 for pain and suffering into the future, and an agreed sum of ?20,000 for special damages.

4 A stay of execution on the High Court's order was granted pending any appeal, conditional upon the payment to the plaintiff by the defendants of a sum of ?150,000.

The background to the case

5 The plaintiff's claim arose out of a road traffic accident that occurred on the 5th of December 2007. On the early morning of that date, the plaintiff was returning home from a holiday in Dubai. Having landed at Dublin Airport some time around 5.00am, the plaintiff engaged a taxi to take her from the airport to her parents' home at Templeogue. The plaintiff sat into the rear of the taxi, which was owned and driven by the second named defendant, and fastened her seatbelt. The taxi then proceeded on its journey. When, in the course of that journey, the taxi was in the vicinity of the junction of Harold's Cross Road and Shamrock Villas, Harold's Cross, another vehicle, which was owned and driven by the first named defendant, came across the road and collided head on with the taxi in which the plaintiff was travelling.

6 The plaintiff suffered personal injuries, loss and damage in the accident, and in due course issued these proceedings against both defendants. Liability was conceded on behalf of the defendants and the case proceeded as an assessment of damages.

The medical reports

7 Before considering the judgment of the High Court, it may be helpful to review the medical evidence placed before that court. At the trial the medical reports on both sides were submitted on an agreed basis, and no doctors or other medical experts were called to give oral evidence.

8 On the plaintiff's side, three reports were handed in from Dr Ahmad Ajina, her General Practitioner; three reports from Mr Joe Sparks, Consultant Orthopaedic Surgeon; eight reports from Dr Frank Chambers, Consultant in Pain Medicine; a report from Mr Derek Hamilton, Musculoskeletal Physiotherapist and two reports from Prof Susan McKiernan, Consultant Gastroenterologist.

9 On the defendant's side, two reports were handed in from Dr John Simon, General Practitioner, four reports from Mr Robert McQuillan, Consultant in Emergency Medicine, and a report from Mr Frank McManus, Consultant Orthopaedic Surgeon.

Dr Ajina's Reports

10 The first report of Dr Ajina dated the 30th of April 2011 covers the period from the date of the accident to the date of the report, during which period the plaintiff attended him on eleven occasions. He stated ( inter alia):

?[I]n summary Ms. Cronin has sustained very severe soft tissue injuries to her cervical, left shoulder and lower back including lumbosacral and coccyx areas. Ms. Cronin has no pre-existing spinal trouble before.

It is approximately three and a half years since the accident and so far there was no significant improvement.

This has imposed a severe restrictions on Ms. Cronin's daily life activities, house work and sleep pattern. It is possible that her acute attack of shingles is linked to the repeated steroids injections which could be avoided if there was no injuries. In addition to this Ms. Cronin's level of stress, anxiety and frustration were very obvious to during these numerous GP visits.

Ms. Cronin's final prognosis is very unpredictable and since it is more than three years I don't expect full recovery without some residual permanent disability.?

11 Dr Ajina's second report, dated 17th of March 2013, covers the period from the 20th of April 2011 to the date of the report, during which the plaintiff attended him on a further four occasions. He reported ( inter alia):

?So in summary Ms Cronin has sustained severe soft tissue injury to her cervical spine areas and it has been five years since the accident with no recovery. This chronic pain has affected her daily activities, work, personal and social entertainment and unfortunately have not responded well to medications, physiotherapy treatments and multiple trigger points injections.

Her prognosis remains poor and I am not expecting her to have full recovery. Ms Cronin is still going to attend the pain specialist for intermittent treatment. Ms Cronin is still taking simple analgesia in a daily basis and this might continue for few years to come. This residual disability and pain is unlikely to get worse but I would expect frequent relapses of pain and reduce full range of movements.?

12 Dr Ajina's third report, dated 31st of December, 2014, covers the period from the 17th of March 2013 to the date of the report, and was based on a review of the plaintiff's condition on the 27th of September 2014. He reported on this occasion:

?As a result of this accident Ms. Cronin has suffered from severe soft tissue injury involving her cervical spine area and coccyx area. In addition Ms. Cronin has sustained minor disc bulging at C4-5 level. This disc bulge extends posteriorly but no compression on either thecal sac or nerve exist. Her coccyx pain has almost resolved but her cervical pain is still severe seven years later despite all of the above treatment. Ms. Cronin has no previous injury to either her cervical or coccyx area.

Ms. Cronin has poor prognosis in so far that she has in my professional opinion, severe irreversible cervical pain which is not responding to all the above treatment. This has left her to suffer during sleep, work and housework activities. I don't anticipate any future treatment that will be of value and hence she is left with permanent morbidity. She will be in need for regular simple analgesia and intermittent physiotherapy treatment.?

Mr Sparkes' Reports

13 Mr Sparks first saw the plaintiff on the 7th of February 2011 on which occasion she was complaining of constant neck pain, coccygeal pain that had reduced in the last three months, frequent numbness in the right ring finger and intermittent shoulder and back pain. She had had a recent MRI scan and nerve conduction studies both of which were normal. Clinical examination revealed significant reduction of spinal movements, with all movements accompanied by trapezius pain which was on palpation more tender in the left than in the right. He concluded:

?There are no hard radiological or clinical findings to explain why Ms. Cronin continues to have right ring finger pain. In the circumstances the constant neck pain and intermittent shoulder and back pain would have to be attributed to soft tissue injuries as the isotope bone scan shows no evidence of any subtle bony abnormality.

On clinical examination there was no focal deficit and I would therefore be of the opinion that no surgical intervention would be required but that Ms. Cronin may require further pain management assistance ?

Given that it is over three years since the date of her accident and these symptoms are persistent and troubling it is becoming increasingly likely that Ms. Cronin will have long-term issues with pain although it is impossible to quantify the duration of symptoms exactly.?

14 Mr Sparkes provided a follow up report dated the 24th of September 2014. On this occasion the plaintiff had reported significant improvement in relation to her coccyageal pain, but no improvement in relation to any of her other complaints. On clinical examination of her cervical spine the plaintiff was noted to have significant restriction of movements, all of which were limited by pain in the right posterior cervical region. Further, there was tenderness to minimal palpation throughout the trapezius and posterior cervical region. Mr Sparkes commented:

?The pain and tenderness demonstrated at clinical examination was in my opinion disproportionate to the objective findings especially with regard to the extreme pain response to minimal palpation of the soft tissues. Given that Ms. Cronin is now almost seven years since the date of her accident and continues with a pain specialist...