Kenny v Crowley
| Jurisdiction | Ireland |
| Judge | Denham J. |
| Judgment Date | 21 June 2006 |
| Neutral Citation | [2006] IESC 37 |
| Docket Number | [S.C. No. 423 of 2004] |
| Court | Supreme Court |
| Date | 21 June 2006 |
Between
and
[2006] IESC 37
THE SUPREME COURT
DAMAGES:
Award
Tort - Personal injuries - Assessment of quantum - Injury to eye - Application ofâÇÿeggshell skull rule' - Future loss of earnings - Whether actuarial basis to claim made out - Whether evidence of fraudulent claim - Reddy v Bates [1983] IR 141 applied - Appeal allowed (423/2004 - SC - 21/6/2006) [2006] IESC 37 Kenny v Cowley
Facts: This appeal related to an assessment of damages. Liability was not an issue. The plaintiff was awarded Eur90,000 general damages for the loss of a right eye, the necessity of relying on an impaired left eye, double vision, soft tissue injuries and depression.
Held by the Supreme Court that the award of Eur90,00 for general damages was an error and a figure of Eur120,000 would be more appropriate. There was no basis for an actuarial based claimed for loss of earnings in the future and the plaintiff was only entitled to the limited sum of Eur40,000.
Reporter: R.W.
REDDY v BATES 1983 IR 141
SHELLEY-MORRIS v BUS ATHA CLIATH (DUBLIN BUS) 2003 1 IR 232
DOWNING v O'FLYNN 2000 4 IR 383
This appeal relates to an assessment of damages. James Kenny, the plaintiff/appellant, hereinafter referred to as the plaintiff, submitted that the High Court erred in the assessment. Liability is not an issue.
The case arose out of a collision with cattle. The plaintiff was driving his car on the evening of 10th April, 2000, at Rathlee, Easkey, Co. Sligo, when his car collided with cattle, owned by John Cowley, the defendant/respondent, hereinafter referred to as the defendant, which had strayed and blocked the highway.
The matter came before the High Court on the 16th and 20th July, 2004. Special damages were agreed at €4,480.
At issue in the High Court were general damages, a claim arising out of physical injuries and a claim for loss of earnings in the future. No claim was made for loss of earnings to the date of the High Court hearing.
The High Court stated that the plaintiff had a perfectly genuine claim against the defendant for his injuries sustained in the accident. The learned High Court judge expressed concern in relation to a claim for €550,000 for loss of employment into the future in view of the employment history of the plaintiff prior to the accident. The High Court stated, quite correctly in my view, that the plaintiff was to be treated under the "eggshell" rule. The learned High Court judge accepted that the plaintiff suffered pain in the past and would in the future. It was noted that the plaintiff made no claim for loss of wages in the past. The High Court agreed that there was an entitlement for loss of wages in the future based on evidence, which, however, the learned High Court judge considered was not good enough and he did not allow for loss of wages in the future. As to general damages, for the injuries sustained to date and into the future, the High Court allowed a sum of €90,000. Special damages being agreed at €4,480, there was a judgment for €94,480.
Against that judgment the plaintiff has appealed to this Court. Ten grounds of appeal were filed, as set out below:
(a) The learned Trial Judge failed to have proper regard to the evidence adduced by and on behalf of the plaintiff in respect of his injuries and losses.
(b) The learned Trial Judge erred in fact and in law in assessing general damages for the past and the future in the amount of €90,000.00 given the uncontroverted evidence of the effects of the serious injuries on the plaintiff.
(c) The learned Trial Judge erred in fact and in law in rejecting the plaintiff's claim for:
(i) loss of future income for the plaintiff and or in the alternative;
(ii) loss of opportunity in the future for the plaintiff.
(d) The learned Trial Judge was wrong in law in refusing to apportion the award of general damages into categories for general damages to date and general damages into the future.
(e) The learned Trial Judge did not give the plaintiff a fair trial on any of the relevant issues before the Court.
(f) The learned Trial Judge erred in law and in fact when referring in his judgment to a claim of the plaintiff for €550,000.00 and in his determination that"the plaintiff has chosen to hoodwink" the Court.
(g) The learned Trial Judge erred in law and in fact in rejecting the evidence of the Vocational Assessment witness Consultant and in his assessment of her evidence.
(h) The learned Trial Judge erred in law and in fact in his judgment in finding and referring to the possibility that"this case would have been settled on Friday had an honest and reasonable approach been adopted by the plaintiff" when there was no evidence or suggestion by the defendant or by the plaintiff to the learned Trial Judge of same.
(i) The learned Trial Judge erred in his treatment of and the weight which he attached to the questions of Senior Counsel for the Defendant in cross-examination of the plaintiff and particularly when the defendant failed to call the witnesses purportedly available to the Defendant to support the allegations of Senior Counsel for the defendant in cross-examination.
(j) The learned Trial Judge erred in law and in the exercise of his discretion when disallowing the costs of the second day of the trial and the expense of a witness and proposed witness for the Trial particularly when:
(i) the trial only commenced at 2 p.m. on Friday the 16th of July 2004 through no fault of the plaintiff.
(ii) the trial was interrupted by the learned Trial Judge for approximately ten minutes on Friday the 16th July 2004 in order to ensure that the parties agreed a timescale for the adducing of evidence from the Vocational Assessment consultant,
(iii) the trial ended at 2 p.m. on Tuesday the 20th July 2004 when Junior Counsel for the defendant without any advance warning indicated that no evidence would be called on behalf of the defendant.
There is no issue as to the special damages in this case; they remain at the figure of €4,480.
The issue for the Court is one of general damages. The general damages relate essentially to loss and damage arising from the injury to his eye and loss of earnings into the future.
First I shall consider the issue relating to the damage to the plaintiff's right eye. As the learned trial judge stated, the plaintiff has to be treated under the eggshell principle. This arises because of the previous problems with his left eye. Prior to the accident the plaintiff had a lazy left eye and he depended on his right eye. His right eye was damaged consequent on the accident, and he has now very limited sight in it. In addition he has double vision which affects his left eye and gives him dizziness. He uses a blank darkened lens to cover his right eye as this cuts down on the double vision and dizziness. He is now dependent on the left eye. However, the sight in this eye is not good.
The uncontroverted medical evidence before the High Court was that:
"This patient has a background of high myopia or shortsight and a lazy left eye (amblyopia i.e. impaired sight). He sustained a whiplash injury which was followed two days later by a retinal detachment in the right which required surgical repair. He has been left with impaired vision in the right and existing impaired vision in the left. He has a constant large right upward deviation of the eye, resulting in constant doublevision and an unsightly appearance."
He reports being able to function as a mechanic prior to the accident but now his vision is poor in both eyes and he has doublevision in them as well and both of these factors impair his ability to work, so he has become unemployed and cannot drive.
The injury itself did not directly cause the retinal detachment but did so indirectly by the whiplash injury causing severe shaking of the head and disturbance of the vitreous jelly in the right eye leading to a tear in the retina. The patient was already at risk from retinal tears because of his high myopia but probably would not have developed a retinal detachment if he had not sustained a whiplash injury. The doublevision is partly due to his impaired sight and pre-existing lazy eye. However, the restriction of movement of the right eye and the drifting upwards of this eye is also a well-known complication of retinal detachment surgery. I did not have the opportunity to assist this man's motility prior to his retinal detachment or his injury, so I cannot describe the relative contributions of the various factors involved in this. At any rate, all of the factors involved are related directly or indirectly to his injury.
He is now developing a cataract in the right eye, which will further impair his vision in this eye increasingly over the next couple of years.
I do not believe the vision in his previously lazy left eye will improve spontaneously because the impairment of vision in the right eye is not sufficiently severe to allow the left eye to take over.
This patient has severe visual impairment in his previously better eye (the right eye) as a result of retinal detachment following a whiplash injury. In addition to impaired vision in each eye, he has debilitating and constant doublevision. This has prevented him from working or driving. It is a constant source of difficulty for him in everyday life. Closing one eye to get rid of the doublevision further impairs his overall vision by effectively making him one-eyed. The better of the two eyes has poor vision of a level no better than 6/12, which would be barely acceptable for driving, if it were present in both eyes. The...
To continue reading
Request your trial