Leidig v O'Neill

Court:Court of Appeal
Docket Number:Record Number: 2019/311
Judge:Noonan J., Haughton J., Murray J.
Judgment Date:2020
Jurisdiction:Ireland
Neutral Citation:[2020] IECA 296

[2020] IECA 296

THE COURT OF APPEAL

Noonan J.

Haughton J.

Murray J.

Record Number: 2019/311

High Court Record Number: 2018/1304P

BETWEEN/
ROBIN LEIDIG
PLAINTIFF/RESPONDENT
-AND-
IAN O'NEILL
DEFENDANT/APPELLANT

Damages – Quantum – Injury – Appellant appealing against the quantum of an award of damages made by the High Court – Whether the award of general damages was excessive to a degree that rendered it disproportionate and an error of law

Facts: The defendant/appellant, Mr O’Neill, appealed to the Court of Appeal against the quantum of an award of damages made by the High Court (Eager J) sitting in Kilkenny on the 6th June, 2019. The total of the general damages awarded was €155,000. The total of the special damages awarded was €8,574.55. Both parties in their submissions accepted that the Book of Quantum was a relevant consideration particularly as the primary injury suffered by the plaintiff/respondent, Mr Leidig, was well defined and categorised in the Book. Counsel for the defendant submitted that the injury fell within the “moderately severe” category while counsel for the plaintiff suggested it was in the “severe and permanent conditions” category, which the trial judge accepted.

Held by Noonan J that the award of general damages in this case was excessive to a degree that rendered it disproportionate and an error of law. Noonan J held that the trial judge erroneously interpreted the Book of Quantum in considering that it merely referred to damages for pain and suffering to date; that error was compounded by the trial judge treating the plaintiff’s loss of hobbies as a head of damage separate from pain and suffering. In Noonan J’s view, the plaintiff’s wrist injury fell at the mid range of the “moderately severe” category. Having had regard to the Book of Quantum range for that category, and to the other injuries suffered by the plaintiff, Noonan J considered that the appropriate figure for pain and suffering to date was the sum of €50,000 together with a further sum of €15,000 for pain and suffering into the future, making a total of €65,000. Having had regard to the trial judge’s acceptance of the plaintiff’s evidence concerning his work limitations and the concession properly made by counsel for the defendant, Noonan J proposed adding an amount for loss of job opportunity, both to date and into the future of €25,000. Noonan J held that the total award for general damages would therefore be €90,000 to which should be added the special damages of €8,574.55.

Noonan J held that he would allow the appeal and substitute for the order of the High Court judgment in the sum of €98,574.55.

Appeal allowed.

JUDGMENT of Mr. Justice Noonan delivered on the 2nd day of November. 2020
1

This appeal is brought by the appellant (“the defendant”) against the quantum of an award of damages made by the High Court (Eager J.) sitting in Kilkenny on the 6 th June, 2019.

Facts
2

The respondent (“the plaintiff”) was born on the 24 th April, 1993. His evidence was that on the 20 th August 2015, when the plaintiff was aged 22 years, he was driving his motorcycle along Main Street, Goresbridge, County Kilkenny when the defendant's motor car emerged without warning from a side road to the plaintiff's left. This resulted in a relatively low speed accident with the plaintiff's motorcycle colliding with the right front wheel of the defendant's car. This caused the plaintiff to be thrown upwards and forwards out of his seat and back down onto the seat. He absorbed most of the force of the impact through his arms and wrists. His head struck the motorcycle's windscreen. The defendant admitted liability and the case proceeded as an assessment of damages.

3

The plaintiff said that he attended his General Practitioner on the evening of the accident complaining of pain, in particular, in his non-dominant left wrist which was swollen and tender and had limited movement. He was referred to St. Luke's Hospital in Kilkenny for an x-ray which was reported as negative for a fracture. His wrist was placed in a splint and he was given painkiller medication. He also suffered a laceration over his eye which was treated with an adhesive strip. The plaintiff again attended his General Practitioner on the 28 th September, 2015 still complaining of severe pain and was referred to Aut Even Hospital in Kilkenny for an MRI scan, which showed a fracture of the scaphoid.

4

The plaintiff's wrist was placed in a plaster cast and he was referred to Mr. Eamonn Kelly, Consultant Orthopaedic and Hand Surgeon, at the Beacon Clinic in Dublin. He saw Mr. Kelly on the 6 th November, 2015 who applied a new plaster cast to the fracture which was described as undisplaced and accordingly it was hoped might heal with a further period in a cast. The cast was ultimately removed on the 21 st December, 2015 and he was advised to commence physiotherapy. However, a CT scan on the 21 st March, 2016 showed that the fracture was persisting. Ultimately the fracture did not heal naturally and the plaintiff underwent surgery on his left wrist on the 2 nd September. 2016 by Mr. Kelly.

5

This comprised an open reduction with an internal fixation using a screw and also a bone graft harvested from the plaintiff's right iliac crest. He was again in a cast for some eight weeks. An x-ray taken in January 2017 suggested that the fracture had now united. Mr. Kelly reviewed the plaintiff again in September 2017 when in addition to his wrist, he had some complaints of symptoms in the area from where the bone had been harvested. The plaintiff's treatment was by that time concluded and he had a number of residual complaints arising from his injuries which he outlined to the trial judge.

6

At the time of the accident, the plaintiff had just graduated from the University of Wales with a degree in mechanical engineering. The plaintiff had for many years been interested in motorsport and his ambition was to work in that area when his education concluded. However because of the accident, he was unable to pursue that career, at least at that stage. The plaintiff complained of ongoing pain and discomfort in his wrist, particularly in cold weather, which affected a number of his previous hobbies including fishing, hunting and playing the violin.

7

His ability to carry out mechanical work and metal fabrication on motor vehicles was affected. Coming from a fanning background, he experienced difficulty in operating farm machinery. He commenced a job on the 22 nd January, 2018 with a company called Autolaunch in County Carlow, a tool and dye company. This was a desk job, unlike the type of employment he had hoped to pursue in the motorsport area but for the accident. He complained of difficulty performing fine movements and repetitive tasks with his left hand and indicated to the judge his concerns for the future.

Expert Evidence
8

The plaintiff himself was the only witness to give viva voce evidence to the court. The expert reports on both sides were agreed. For the plaintiff, these consisted of three reports of Mr. Kelly, Consultant Orthopaedic and Hand Surgeon, three reports from his General Practitioner, Dr. Canning, and one report from Mr. O'Dwyer, Consultant in Emergency Medicine. A report from Ms. Ciara McMahon, Vocational Consultant, was also submitted. For the defendant, two reports were put before the court, one from Mr. Colin Riordan, Consultant Hand and Plastic Surgeon, and one from Mr. Marius Cassidy, Vocational Consultant.

9

Mr. Kelly's first report is dated the 21 st April, 2016, some eight months after the accident. The plaintiff was first seen by Mr. Kelly on the 6 th November, 2015. The MRI of the plaintiff's left wrist showed an undisplaced fracture at the waist of his scaphoid. Mr. Kelly felt that it was possible that it might heal following a further period in a cast, and a new cast was applied on that date. That remained in situ for about six weeks and was removed on the 21 st December. 2015. At that stage, the x-ray appeared to suggest that the fracture had healed.

10

However, his difficulties persisted and on the 21 st March, 2016, Mr. Kelly advised the plaintiff that a CT scan of the left wrist demonstrated a persistent fracture. It was explained to the plaintiff that his options were to undergo surgery to fix the fracture, or wait and see if it went on to unite. The plaintiff was more inclined to the latter option. Mr. Kelly described the injury to the plaintiff's left wrist as severe, and the non-union of the fracture was related to the violence of the original impact. Such fractures often have ongoing symptoms but it was too early to assess the outcome.

11

Mr. Kelly's second report is dated the 6 th September, 2017, at two years' post-accident. The conservative treatment had not been successful and accordingly, the plaintiff was admitted to hospital on the 2 nd September, 2016 for open reduction and internal fixation of the left scaphoid using a screw and a wedge graft harvested from his right iliac crest. He again had a plaster cast applied. This was removed at eight weeks' post-surgery and when seen by Mr. Kelly on the 16 th November, 2016, the plaintiff said his wrist felt better and was non-tender. A further review on the 11 th January, 2017 showed him to be improving although with some ongoing loss of extension. X-rays suggested the fracture had united.

12

On the date of that review, 6 th September, 2017, the plaintiff was two years' post-accident and one year post-surgery. He complained of tenderness and hypersensitivity in the right iliac crest where the bone graft was harvested. Because of his prolonged treatment, he had not been able to fully return to farm work or his leisure pursuits. He was on no medication and complained of no sleep disturbance. He complained of difficulties with fine activities and reduced lifting capacity. He was sensitive to vibration driving the farm machines. His...

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