McKeown v Crosby

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 11 August 2020
• Neutral Citation: [2020] IECA 242
• Date: 11 August 2020
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2019/525

BETWEEN/

EMMA MCKEOWN

PLAINTIFF/RESPONDENT

-AND-

ALAN CROSBY

AND

MARY VOCELLA

DEFENDANTS/APPELLANTS

[2020] IECA 242

Whelan J.

Noonan J.

Power J.

Record Number: 2019/525

High Court Record Number: 2018/8764P

THE COURT OF APPEAL

Personal injuries – Quantum – Proportionality – Appellants appealing against the quantum of the award of damages – Whether the quantum of the award was excessive

Facts: The plaintiff/respondent, Ms McKeown, suffered typical soft tissue injuries of a kind frequently seen in the aftermath of a road traffic accident. The personal injuries claim was heard by the High Court (O’Hanlon J) at Dundalk on the 11th December, 2019. An ex tempore judgment was given on the next day, the trial judge having had the opportunity to consider the medical reports overnight. The trial judge awarded the plaintiff a sum of €70,000 for general damages, comprising €65,000 to date and €5,000 into the future, together with agreed special damages in the amount of €6,000 making a total award of €76,000. The defendants/appellants appealed to the Court of Appeal against the quantum of the award on the essential ground that it was excessive. The plaintiff cross appealed against the award of €5,000 for the future on the ground that it was too low.

Held by Noonan J that the judgment of the trial judge gave little insight into how the amount awarded was arrived at. Having taken into account all the relevant factors in the context of the proportionality of the award in this case, Noonan J was satisfied that by any reasonable measure it could not be viewed as proportionate. Noonan J held that it was not proportionate when viewed against the measure of the maximum for the most serious injuries; neither was it proportionate in relation to other comparable awards and in that respect, the most directly comparable award was that in Payne v Nugent [2015] IECA 268. Noonan J held that it bore no relation to the range identified in the Book of Quantum which he considered appropriate in this case.

Noonan J held that, with regard to the plaintiff’s low back injury, the correct figure for pain and suffering to date was €25,000. He would make a further allowance of €5,000 to take account of her neck and shoulder injuries so that general damages to date amounted to €30,000. With regard to pain and suffering into the future, he was satisfied that the evidence taken as a whole suggested that any level of future pain and suffering would be of a very minor order indeed and the trial judge reached the correct conclusion in awarding a sum of €5,000 in that regard; thus the total amount for general damages was €35,000 to which must be added the agreed special damages of €6,000, making in total €41,000. Noonan J accordingly substituted judgment in this sum for the award of the High Court. He allowed the defendants’ appeal and dismissed the plaintiff’s cross-appeal.

Appellants’ appeal allowed. Respondent's cross appeal dismissed.

JUDGMENT of Mr. Justice Noonan delivered on the 11th day of August, 2020

Introduction

1 This is a relatively simple and straightforward personal injuries claim. It has no real complicating factors. Liability is not in issue. The special damages and all the medical reports are agreed. The only witness to give oral evidence was the respondent, and for ease of reference, I shall refer to her as the “plaintiff. The plaintiff was found by the trial judge to be an honest and credible witness who did not exaggerate her injuries. The injuries suffered by the plaintiff were typical soft tissue injuries of a kind frequently seen in the aftermath of a road traffic accident.

2 The case was heard by the High Court (O'Hanlon J.) at Dundalk on the 11 ^th December, 2019. It was conducted with remarkable efficiency by the legal teams on both sides and judging from the short transcript, the trial lasted for about a half hour. An ex tempore judgment was given on the next day, the trial judge having had the opportunity to consider the medical reports overnight. The trial judge awarded the plaintiff a sum of €70,000 for general damages, comprising €65,000 to date and €5,000 into the future, together with agreed special damages in the amount of €6,000 making a total award of €76,000. The appellants, to whom I shall refer as the “defendants”, appeal against the quantum of the award on the essential ground that it was excessive. The plaintiff has cross appealed against the award of €5,000 for the future on the ground that it is too low.

Relevant facts and evidence

3 The plaintiff was born on the 15 ^th August, 1986 and is a home carer by occupation. She was involved in a road traffic accident on the 21 ^st March, 2017 when she was 30 years of age. On that date she was driving on the Newry Road in Dundalk and was turning to her right into the entrance of a house when she was struck by the defendants’ overtaking jeep. Although this was described as quite a significant impact resulting in about €3,000 worth of damage to the plaintiff's vehicle, the airbags in her vehicle were not activated. At the time of the accident, the plaintiff was working as a care assistant with a company called Home Care. She was asked in her direct evidence what parts of her body were affected in the accident and she said her shoulder, arm and back. Although no evidence was given about this, it would appear from the defendants’ medical reports of Mr. Frank McManus, Orthopaedic Surgeon, that the plaintiff attended her GP, Dr. Whately on the evening of the accident. The plaintiff told Mr. McManus that Dr. Whately prescribed appropriate medication and advised her to carry out exercises. The medical reports indicate that the plaintiff saw Dr. Whately on a number of subsequent occasions but on how many occasions or for how long is not known. Perhaps somewhat surprisingly. Dr. Whately did not provide any medical reports nor were any records of the plaintiff's attendances with him produced. Instead, the plaintiff relied upon five medical reports from Mr. Alan Walsh, Consultant Orthopaedic Surgeon at Our Lady's Hospital in Navan. The plaintiff resides in Dundalk.

4 It seems clear that the plaintiff consulted her solicitors very shortly after the accident as they arranged an appointment for her with Mr. Walsh on the 14 ^th April, 2017, barely three weeks after the accident. None of Mr. Walsh's reports give details of any treatment he afforded the plaintiff and it must, therefore, be assumed that the plaintiff saw Mr. Walsh for medico-legal purposes only. The plaintiff was asked in cross examination if Mr. Walsh had given her any treatment and she replied that he had given her directions to keep up with the physiotherapy.

5 Mr. Walsh first saw the plaintiff on the 14 ^th April, 2017 and noted that her initial complaints after the accident were that she had painful symptoms affecting her low back mainly, but also her thoracic and cervical spine areas. She also complained to him of a recurrence of shingles and an exacerbation of psoriasis but the trial judge accepted, and her finding is not appealed, that these were unrelated to the accident. Mr. Walsh noted that the plaintiff had been prescribed analgesia including an anti-inflammatory and a muscle relaxant, presumably by her GP. Mr. Walsh noted that the plaintiff had been off work since the accident and in fact she remained off work for a total of six weeks. Her complaints were of central lower back pain worsening since the accident but not radiating significantly. This was associated with pain also felt in the inter scapular area and in the posterior low cervical spine. She also complained of symptoms of numbness affecting her left hand and fingers. There was some reduction in the range of movement of her lumbar spine but movement of the cervical spine was normal. Mr. Walsh at that stage was of the view that her symptoms were most likely related to a musculotendinous sprain from whiplash as a result of the accident. He recommended an MRI scan if she had not improved by six weeks post-accident.

6 An MRI scan was duly arranged on the 23 ^rd June, 2017 which showed low grade degenerative changes with a central annular bulging affecting the L5/S1 lumbar intervertebral disc. In commenting on the MRI findings, Mr. Walsh said that these changes most likely pre-dated the accident in asymptomatic form but there may have been an element of exacerbation contributing to her lower lumbar symptoms associated with myofascial pain. He felt the symptoms were likely to improve significantly over a one to two year period from the accident with a focused rehabilitation programme and analgesia when required.

7 The plaintiff's evidence was that she returned to work after six weeks and she was asked by her employer to move to work in Cavan. She said that due to the soreness of her back when driving, she was unable to accommodate this change and accordingly was made redundant. She then took up employment with a company called Home Instead. The plaintiff also gave evidence that she followed Mr. Walsh's advice and started physiotherapy although when this commenced or how many sessions she had was not stated. She also had something called dry needling and took up Pilates. This situation appears to have continued until approximately August 2018 when the plaintiff changed to a better job with a company called Inspire. However, she found this too demanding physically and returned to Home Instead. Apart from her lower back, the plaintiff was asked in cross examination about her symptoms in the neck and upper back and she agreed that these symptoms resolved completely a couple of months after the date of the MRI scan, in other words approximately four months after the accident. Her lower back symptoms continued.

8 The plaintiff then saw Mr. Walsh on the 2 ^nd August, 2018 just over a year and four months post-accident. On that date, she told Mr. Walsh that she took regular analgesia including...