Daly v Mulhern

JudgeO'Sullivan J.
Judgment Date22 April 2005
Neutral Citation[2005] IEHC 140
Date22 April 2005
CourtHigh Court
Docket Number[2002 No. 2704 P]


Mary Iris Daly


Dessie Mulhern and The Motor Insurers' Bureau of Ireland

[2005] IEHC 140

[Record No. 2704P/2002]



Aggravated damages

Tort - Negligence - Circumstances in which court can award aggravated damages - Conduct of defence - Conway v Irish National Teachers Organisation [1991] 2 IR 305 applied; Philp v Ryan [2004] IESC 105, [2004] 4 IR 241 followed; Swaine v Commissioners of Public Works [2003] 1 IR 521 considered - Damages awarded (2002/2704P - O'Sullivan J - 22/4/2005) [2005] IEHC 140 Daly v Mulhern

Facts: the plaintiff suffered injuries to her back and neck when the first defendant crashed into her from the rear. The first defendant after receiving a letter from the plaintiff's solicitor, denied that the accident ever occurred and maintained that stance throughout the action. The plaintiff in addition to seeking general damages, also sought aggravated damages for the manner in which the defence was conducted. Special damages were agreed between the parties at Eur1,808.29.

Held by Mr Justice O'Sullivan in awarding the plaintiff Eur46,808.29 as total damages that her symptoms indicated that an appropriate award for general compensatory damages for pain and suffering to date and into the future was Eur35,000. That aggravated damages were recoverable in negligence claims and the features of the case fitted into the third category previously identified by the Supreme Court where aggravated damages were recoverable by a plaintiff, namely due to the conduct of the wrongdoer in the defence of the claim up to and including the trial of the action. Accordingly, in addition to general damages, the plaintiff was awarded Eur10,000 for aggravated damages.

Reporter: P.C.

CONWAY v INTO 1991 2 IR 305 1991 ILRM 497

COOPER v O'CONNELL UNREP SUPREME 5.6.1997 1998/14/4946







Judgment O'Sullivan J. delivered the 22nd day of April, 2005


The plaintiff sustained whiplash type injuries when her car was hit from the rear by a car driven by the first defendant on 21st July, 2001.


The only evidence in the case has been the evidence of the plaintiff and her consultant physician and rheumatologist, Dr. Dominic Cooke. The plaintiff is aged 55, is separated and has three grown up children and lives on her own at Ballyshannon, Co. Donegal. At the time of the accident she had been working for nine years as a cleaner in a bakery at Ballyshannon. This was heavy manual work and her shift on each of five days in the week was from 2am to 2pm. The accident happened on a Saturday morning as she was driving towards Ballyshannon. The car in front of her stopped blocking her progress so she stopped. As she was about to pull away she was hit from the rear by the first defendant's car. She got a severe shock.


Her unchallenged evidence was that the first defendant came out and said "I'm really sorry" and pointed to the fact that he was wearing flip flop shoes, that these were unsuitable and that he had hit the accelerator instead of the brake. He told her there was no need to call the police and that they would sort it out if she called out to him. They were at the scene between ten and twenty minutes outside McNulty's Garage. Later she went to his house and he said he would see her right but nothing happened and she ultimately went to her solicitor and the instant proceedings were initiated. There is a claim for aggravated damages arising out of the manner in which the defence was conducted and I will therefore return to the facts relating to this at a later point.


The plaintiff felt very sore the next morning in her back and neck. She went to her general practitioner who advised painkillers which were effective but the effect wore off. The injury affected her ability to move and to do housework. However, because she was self supporting she had to return to work which she did within two weeks and continued working but in Autumn she reduced her work load to three shifts a week. She had headaches, relied on some friends to help her with her housework and has been working three shifts a week ever since. Her symptoms of soreness, pain and stiffness and reduced mobility continued beyond the normal period of 18–24 months and still persist at the date of hearing. Her doctor (Dr. Cooke) advised physiotherapy but she only tried this a few times and gave it up because of the pain. Sometimes her back gets really bad and there is also pain in her neck. She has a lot of bending, carrying and moving heavy buckets at work. She has to use a high pillow for sleeping; if she does not she wakes in the morning with pain. She suffered pain going down her arms first about two months after the accident. She has this pain and pins and needles especially in the morning every day for an hour or two and it has been constant for the last few years. She saw her general practitioner for perhaps a total of six times in the years since the accident. She was advised to take painkillers and anti-inflammatories and she has been taking paracetemol and panadol.


She has suffered loss of earnings but has made no claim for this because, as her counsel put it, of the manner in which she was paid.


She also gave evidence that she heard from her solicitor of a letter from the first defendant written on 5th December, 2002 in response to a letter to him of 28th November saying:

"Your client has already come to my door enquiring as to whether she had an accident with myself or any of my drivers, while she had drink taken I was unaware she was in any doubt as to the clarity of my answer, which was an unambiguous no."


She said that when her solicitor told her about this letter she suffered an awful lot of stress, she couldn't believe that he denied the accident, she was most particularly hurt about the allegation that she was drunk - as she understood it at the time of the accident. She was hurt about the implication that she had fabricated the accident.


Dr. Cooke gave evidence that the plaintiff first visited him on 31st August. He gave a history consistent with her evidence in court and complained of headaches, severe neck pain and stiffness going out into both arms, pins and needles and numbness in arms and fingers of both hands and severe back pain radiating to both thighs. On examination she had marked restriction of all movements of the cervical spine but no gross neurological deficit in the upper limbs. She had marked painful restriction of all movements of the lumber spine, hips and knees. Her injuries he described as still very acute. Over two years later on 21st November, 2003 she came to him again and told him that she had improved but still had a lot of neck pain and stiffness with pain and numbness in both hands particularly in the mornings and occasionally during the night but rarely during the day. She gets some back pain as well. On examination he found full movement of the neck shoulders and arms with pain at the extremes of movement of the neck but no restriction or spasm. He was concerned that the parasthesia and numbness in both hands had been present since the accident and is related to the neck injury and advised an MRI scan. This was done and on 1st February, 2004 Dr. Cooke reported that the scan showed degenerative disc disease at the C6/7 level and some degree of narrowing of the spine at the C4/5 level. These degenerative changes of the cervical spine were giving rise to some degree of nerve root irritation and that was responsible for the parasthesia and numbness. Her symptoms were predominantly soft tissue injuries but occurring on a background of cervical degenerative disc disease which had been aggravated by the accident and rendered painful and also nerve root irritation. The symptoms were likely to be prolonged.


The last time Dr. Cooke saw the plaintiff was on 4th December, 2004 and she told him she had not improved to any great extent and continued to have a lot of pain and stiffness in her neck, down into the shoulders, between the shoulder blades and parasthesia and numbness in both hands. She also experienced low back pain radiating down both legs. She finds the work in the bakery difficult and has to take pain killers virtually ever day. They help her and enable her to do her work. He then considered that she would have neck pain for at least six to twelve months but in evidence said that he thought that this pain would last even longer. He said that if she had not had the accident she would have remained symptom free until well into her sixties notwithstanding the pre-existing degeneration shown on the MRI. She has had all the treatment that she could be given and her reaction to physiotherapy was what he described as the standard reaction. He has what she described as a "half good neck" and he would not agree under cross-examination that her description of her pain was exaggerated.


Special damages have been agreed at €1,808.29.


In my opinion in light of the foregoing the plaintiff is entitled to ordinary compensatory damages of €25,000 to date and €10,000 further for pain and suffering in the future.

Aggravated damages

There is, in addition, however, a claim made on her behalf that she is entitled to aggravated damages. This is put upon the basis that


1. There was a clear admission made personally by the first defendant at the scene of the accident and at his house that he was responsible for the accident and would see the plaintiff right (there being no...

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    ...negligence as to how a defendant has conducted its defence rather than for the actual negligence itself. 9.8 In Daly v. Mulhern & Ors [2008] 2 I.R. 1, O'Sullivan J. awarded aggravated damages in circumstances in which a defendant personally admitted liability, told the plaintiff there was ......
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