Fogarty v Cox

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 29 November 2017
• Neutral Citation: [2017] IECA 309
• Date: 29 November 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 309 Record No. 2016/176

BETWEEN/

ANNA FOGARTY

PLAINTIFF / RESPONDENT

- AND –

MICHAEL COX

DEFENDANT / APPELLANT

[2017] IECA 309

Irvine J.

Peart J.

Irvine J.

Hogan J.

Neutral Citation Number: [2017] IECA 309

Record No. 2016/176

THE COURT OF APPEAL

Damages – Injuries – Causation – Appellant seeking to appeal against award of damages – Whether award of damages was excessive

Facts: The defendant/appellant, Mr Cox, appealed to the Court of Appeal against the judgment and order of the High Court (Barr J) dated respectively the 26th February and the 15th March, 2016. By his judgment, the High Court judge made an award of damages in a total sum of €121,386.11 in favour of the plaintiff/respondent, Ms Fogarty, as a result of injuries she sustained in a car accident on the 25th November, 2011. That award was broken down into a sum of €85,000 in respect of pain and suffering to date, €30,000 in respect of pain and suffering into the future and special damages in the sum of €6,386.11. The defendant conceded liability in respect of the collision that occurred between the motor vehicles of the respective parties but denied that the injuries claimed by Ms Fogarty were the result of that event. It was the defendant’s position that the principal injury contended for by Ms Fogarty, namely chondromalacia of the right elbow, was constitutional in nature and the result of wear and tear and that a secondary condition known as synovitis, which she later developed and was identified in the course of an MRI scan in September 2013, was the result of the excessive use of steroid injections administered over an extended period by Dr McCarthy, Ms Fogarty’s physician.

Held by Irvine J that the appellant had not established any error on the part of the High Court judge such as would require his finding on the causation issue to be set aside; his findings of fact were supported by credible evidence, he did not reverse the burden of proof and he did not fail to analyse the evidence. As to the award of general damages made by the High Court judge, Irvine J was satisfied that the award was excessive to the point that it must be considered a legal error and must be set aside.

Irvine J held that the award made in respect of damages for pain and suffering to date be reduced to €45,000 and the award for pain and suffering into the future be reduced to €17,500. Irvine J held that having regard to the agreed special damages of €6,386.11, the total award made by Barr J should be reduced to €68,886.11.

Appeal allowed.

JUDGMENT of Ms. Justice Irvine delivered on the 29th day of November 2017

1 This is the defendant's appeal against the judgment and order of the High Court (Barr J.) dated respectively the 26th February and the 15th March, 2016. By his judgment, the High Court judge made an award of damages in a total sum of €121,386.11 in favour of the plaintiff, Anna Fogarty (‘Ms. Fogarty’) as a result of injuries she sustained in a car accident on the 25th November, 2011. That award was broken down into a sum of €85,000 in respect of pain and suffering to date, €30,000 in respect of pain and suffering into the future and special damages in the sum of €6,386.11.

2 It is important at the outset to record that the defendant conceded liability in respect of the collision that occurred between the motor vehicles of the respective parties but denied that the injuries claimed by Ms. Fogarty were the result of that event. It was the defendant's position that the principal injury contended for by Ms. Fogarty, namely chondromalacia of the right elbow, was constitutional in nature and the result of wear and tear and that a secondary condition known as synovitis, which she later developed and was identified in the course of an MRI scan in September 2013, was the result of the excessive use of steroid injections administered over an extended period by Dr. Sean McCarthy, Ms. Fogarty's physician.

Relevant background facts

3 Ms. Fogarty was born on the 28th December, 1957 and in 2011 was studying for a degree in business studies at the Limerick Institute of Technology in Thurles, Co. Tipperary. On the 25th November, 2011, she was in the process of leaving the car park of the Institute when she noticed the defendant, Mr. Michael Cox (‘Mr. Cox’), reversing his car out of a car park space in a manner which caused her to suspect that he might reverse into the driver's side of her car. Consequently, Ms. Fogarty placed her right hand on the horn to warn the defendant of her presence. Regrettably, her actions did not prevent his vehicle striking her driver's door. Shortly after these events, a member of An Garda Síochána, Garda Clodagh Kenny, attended the scene of the accident.

4 Ms. Fogarty did not inform Garda Kenny that she had sustained any injury as a result of the impact between the two vehicles. At the end of her cross examination, she changed evidence earlier given by her to concede that she had not told Mr. Cox that she had been injured at the time of the accident. Nonetheless, in her proceedings Ms. Fogarty claimed that she had developed an immediate stinging sensation in her right arm and that shortly thereafter she had gone on to develop what she described as the worst pain she had ever experienced in her lifetime.

5 Ms. Fogarty attended a number of medical practitioners prior to the 11th January, 2012, that being the date on which a medical record was first made noting the fact that an accident had occurred in November 2011 which had resulted in her developing right arm symptoms. It was accepted that in December 2012 she had attended her G.P.'s surgery on a number of occasions in relation to other medical matters and that the notes made by those she had attended did not mention the type of serious pain she maintained she had developed in the aftermath of the collision. Ms. Fogarty attended her regular general practitioner, Dr. Paul O'Carroll, on the 21st January 2012 when he diagnosed tennis elbow and he gave her some steroid injections into her elbow. His note of the consultation made no reference to any car accident. When asked to explain how these doctors could have failed to note both the accident and pain of the severity she had described to the court, Ms. Fogarty maintained that she told them of her pain and that she told Dr. O'Carroll of her car accident. She protested that she could not be held responsible for the fact that they had not made a record of these matters.

Medical evidence

6 The trial judge heard evidence from Dr. Sean McCarthy, general practitioner and sports injury specialist, and Mr. Karuppiah Mahalingam, consultant orthopaedic surgeon, on Ms. Fogarty's behalf. He also heard evidence from Mr. Colin Riordan, consultant hand and plastic surgeon on behalf of the defendant.

7 Dr. McCarthy expressed himself satisfied that the injuries complained of by Ms. Fogarty were likely caused by her elbow striking the window of the car. He outlined in detail the treatment administered from the time she first attended him in July 2012 at the request of her solicitor, Mr. Cian O'Carroll. Ms. Fogarty had visited him on eighteen occasions. He had referred her for physiotherapy to her elbow and in the course of that treatment she had complained for the first time of some right shoulder pain which he later diagnosed as tendonitis and which he also ascribed to her accident.

8 Dr. McCarthy administered a total of nineteen injections to Ms. Fogarty's right shoulder and elbow between August 2012 and May 2015. The injections to the elbow were to treat chondromalacia, a condition later confirmed by MRI scan of September 2013.

9 Due to the fact that Ms. Fogarty's symptoms did not respond as fully or promptly as expected to injections of lignocaine and cortisone, she was referred by Dr. McCarthy to Mr. Mahalingam, consultant orthopaedic surgeon, who carried out an arthroscopy on her right elbow in February 2015. In the course of that procedure, he found the joint to be inflamed and considered the presentation such that he should carry out a release of one of the ligaments on the lateral side of her right elbow. Following her arthroscopy, Ms. Fogarty regained full movement of her elbow joint, although she continued to complain of some pain and swelling. Mr. Mahalingam was nonetheless satisfied that her remaining symptoms, with the exception of the small scar to her elbow, would likely resolve within a further year.

10 Mr. Riordan, on behalf of the defendant, did not agree with Dr. McCarthy or Mr. Mahalingam as to the probable cause of Ms. Fogarty's symptoms. He considered that they were unlikely to have been the result of her car accident. He was of the opinion that any soft tissue trauma she might have sustained as a result of any impact between her elbow and the door would likely have settled within six to ten weeks. Her ongoing symptoms thereafter were not attributable to her accident. She had likely developed tennis elbow, a common complaint, which he was of the opinion is a degenerative condition which develops without trauma. Further, it was Mr. Riordan's view that her synovitis was likely the result of the injections she had received from Dr. McCarthy.

High Court Judgment

11 In his judgment, the trial judge summarised the evidence of the plaintiff and all the other witnesses. Having done so, he found as a fact that Ms. Fogarty did indeed sustain an injury to her right elbow and her right shoulder as a result of the impact to her car from Mr. Cox's motor vehicle. As to the cause of her injuries, he relied upon the evidence of Dr. McCarthy and Mr. Mahalingam and stated clearly that he preferred their evidence on causation to that of Mr. Riordan.

12 In expressing himself satisfied that the cause of Ms. Fogarty's elbow and shoulder injury was the collision, he accepted Ms. Fogarty's evidence that she had indeed told the medical practitioners whom she had attended prior...