Meehan v Shawcove Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 08 September 2022
• Neutral Citation: [2022] IECA 208
• Year: 2022
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2021/185

Between/

Kevin Meehan

Plaintiff/Respondent

and

Shawcove Limited, Ellickson Engineering Limited, Kilell Limited, Otis Limited, Otis Elevator Ireland Limited, and Daldoss Elevetronic SPA

Defendants/Appellants

[2022] IECA 208

Noonan J.

Faherty J.

Binchy J.

Record Number: 2021/185

High Court Record Number: 2013/12442P

THE COURT OF APPEAL

General damages – Pain and suffering – Loss of employment opportunity – Defendants appealing against an award for general damages – Whether the award for general damages was proportionate

Facts: The plaintiff, Mr Meehan, was involved in an accident on the 9th July, 2011. The plaintiff and his wife were attending a family wedding in Killarney. After the ceremony, they and other members of the wedding party went to the Killarney Plaza Hotel where they were staying. They drove into the underground car park and the plaintiff, his wife, two brothers and a sister in law got into the lift to go to reception three floors above. When they reached the reception level, the lift failed to dock. A loud bang followed and the lift suddenly dropped about a foot where it remained for a few seconds before crashing to the ground three floors below. All occupants of the lift suffered serious injuries. Liability was not in issue in the High Court and the appeal of the defendants, Shawcove Ltd, Ellickson Engineering Ltd, Kilell Ltd, Otis Ltd, Otis Elevator Ireland Ltd and Daldoss Elevetronic SpA, to the Court of Appeal was confined solely to the High Court’s award of general damages for pain and suffering and for loss of employment opportunity. The trial judge assessed the plaintiff’s general damages at €125,000 for pain and suffering to date, €175,000 for pain and suffering into the future and €75,000 for loss of opportunity. There was a dispute between the parties as to how the court should approach the issue of proportionality in the assessment of damages for personal injuries where multiple injuries are concerned.

Held by Noonan J that an award of €300,000 for general damages for pain and suffering in this case could not be viewed as proportionate, either when viewed in the context of the maximum or in the context of awards for other injuries. In his view, the appropriate award for general damages in this case was €200,000. That sum was, in his judgment, proportionate to the maximum and to other awards. Given the level of trauma suffered by the plaintiff in the early years at least and the fact that a period of 10 years elapsed between the accident and the trial, Noonan J did not think that the sum of €125,000 for pain and suffering to date was unreasonable. He assessed the figure for pain and suffering into the future in the sum of €75,000. He was satisfied that the differential in the assessment of general damages being made by the Court of Appeal and the sum awarded by the trial judge was well above the margin within which the court might not be inclined to interfere. Noonan J noted that, in two recent judgments of the court, Leidig v O’Neill [2020] IECA 296 and Griffin v Hoare [2021] IECA 329, the court awarded in each case the sum of €25,000 for loss of employment opportunity to two young men just qualified in their chosen fields who would be unable to pursue a particular desired occupation because of their injuries in the future. He was prepared to accept, as had been submitted by counsel for the plaintiff, that in view of the plaintiff’s high level of earning capacity in this case, it was appropriate that he should obtain a somewhat higher award, although Noonan J did not believe that an award at the level given by the trial judge was justified by the evidence. Noonan J proposed assessing the plaintiff’s damages under this heading in the sum of €50,000; accordingly, the total general damages came to €250,000.

Noonan J substituted for the order of the High Court judgment in the sum of €383,649 (inclusive of the special damages awarded by the High Court) and allowed the defendants’ appeal to that extent.

Appeal allowed.

JUDGMENT of Mr. Justice Noonan delivered on the 8th day of September, 2022

Introduction

1 One of the principal issues arising in this appeal is the correct approach to the assessment of damages for personal injuries where multiple injuries are concerned. More specifically, there is a dispute between the parties as to how the court should approach the issue of proportionality in that assessment.

2 Liability was not in issue in the High Court and the defendants' appeal to this court is confined solely to the High Court's award of general damages for pain and suffering and for loss of employment opportunity. The trial judge assessed the plaintiff's general damages at €125,000 for pain and suffering to date, €175,000 for pain and suffering into the future and €75,000 for loss of opportunity, total €375,000.

Facts

3 The background to the accident and the plaintiff's course thereafter, as set out in the judgment of the High Court, is lengthy and detailed, not least by virtue of the fact that 10 years elapsed between the date of the accident and the hearing in the High Court.

4 It is unnecessary to set out that history at length. I propose instead to summarise the main features of the factual background in an effort to make it more readily comprehensible for the purposes of this judgment. In doing so, I do not seek to minimise the great suffering that the plaintiff has to date endured, nor do I overlook in any way the details of his history as it is to be found in the transcript of the evidence, the agreed expert reports and the judgment of the High Court.

5 The plaintiff, who is from County Kildare and was born on the 2nd May, 1978, was involved in an accident on the 9th July, 2011, when he was aged 33. The trial judge described the accident as being “the stuff of nightmares”. The plaintiff and his wife were attending a family wedding in Killarney. After the ceremony, they and other members of the wedding party went to the Killarney Plaza Hotel where they were staying. They drove into the underground car park and the plaintiff, his wife, two brothers and a sister in law got into the lift to go to reception three floors above.

6 When they reached the reception level, the lift failed to dock. A loud bang followed and the lift suddenly dropped about a foot where it remained, literally hanging by a thread, for a few seconds before crashing to the ground three floors below. Scenes of devastation and panic ensued. All occupants of the lift had suffered serious injuries, including the plaintiff's wife, for whom he was very concerned. The terror he had to endure was greatly exacerbated by the long delay that followed before he and the other victims were rescued. The plaintiff was brought to Tralee hospital and detained there for some five days. The headline injuries suffered by the plaintiff were to his back and legs. He suffered undisplaced compression fractures of the L3 and L4 and a later discovered hairline fracture of T9.

7 Fortunately, these injuries did not require surgical intervention and he was put in a back brace to allow natural healing to occur. He also suffered a fracture to his left ankle which required open manipulation under general anaesthetic but no internal fixation. His left ankle was immobilised in a plaster cast which remained in situ for some five to six weeks. He also suffered a fracture of his right heel which appears to have been treated conservatively. At that stage he also had complaints of pain in his right knee in particular but no specific injury was identified requiring treatment.

8 On his discharge home from hospital, the plaintiff endured a very difficult course for a lengthy period. The combination of his injuries meant that he was able to do nothing for himself and was largely immobile in bed. The plaintiff's wife was clearly limited in terms of caring for the plaintiff by reason of her own injuries and in consequence, her parents moved in to care for the plaintiff over a period of months. This proved extremely difficult for the plaintiff who was unable to attend to his personal hygiene and toileting. He had to be lifted onto a commode and lifted off again which he found understandably demeaning and difficult to accept.

9 On top of all of this, the plaintiff was deeply traumatised by the circumstances of the accident and what had happened to him, his wife and family members. He was at that time suffering significantly from post traumatic stress disorder and a depressive reaction. These were, at that stage, the plaintiff's main injuries but I do not overlook the fact that he suffered many other injuries, for example, that were soft tissue in nature and also dental injuries. Throughout all of this initial phase of his recovery, the plaintiff suffered extreme pain and discomfort from the injuries described.

10 With regard to the plaintiff's employment background, he has for many years worked in the pharmaceutical industry and in particular in the quality control and compliance fields. The plaintiff is very highly qualified in these areas both by virtue of his educational attainments and experience. At the time of the accident he was employed in these areas by Bristol Myers Squibb (“BMS”). It is clear from all the evidence in this case that the plaintiff is professionally both highly motivated and highly ambitious to succeed in his chosen career. He has pursued, and gained, many promotions in recognition of his exceptional abilities and is constantly the subject of approaches by recruitment agencies seeking to headhunt those proven abilities and talents.

11 The severity of the plaintiff's injuries was such that he was unable to return to work for some 8 months and when he did so in March 2012, he was only able to manage about 12 hours per week, which it appears BMS were very willing to accommodate given that he was such a valued employee. In fact, it was fully two years...