Nolan v Wirenski

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 25 February 2016
• Neutral Citation: [2016] IECA 56
• Docket Number: [C.A. No. 1341 of 2014],Appeal No.: 2014/1341
• Court: Court of Appeal (Ireland)
• Date: 25 February 2016

Ryan P.

Peart J.

Irvine J.

Mary Nolan

Plaintiff/Respondent

- and -

Rafal Wirenski

Defendant/Appellant

[2016] IECA 56

Irvine J.

Appeal No.: 2014/1341

[Article 64 Transfer]

THE COURT OF APPEAL

Personal Injuries – Damages – Credibility – Proportionality

Facts: This case concerned an appeal against a judgement and order in a personal injuries action. The plaintiff was awarded ?125,680 in damages and a stay on that order was granted with the defendant paying a sum of ?60,000 to the plaintiff pending appeal. The plaintiff was a passenger in a road traffic accident. The defendant submitted that the findings of fact made by the trial judge were not supported by credible evidence thus affecting the validity of the award of damages. They contended that the sum awarded in respect of general damages was excessive and sought to have it set aside.

Held by Irvine J:

It was not for the appellate court to alter an award made by a trial judge who had considered all the evidence. The court will only intervene when the award is disproportionate to the injuries and amounts to an erroneous estimate of the damages. The true purpose of damages for personal injuries is to provide reasonable compensation for the pain and suffering the person has endured and will endure in the future. The authorities on the matter require damages to be i) fair to the plaintiff and defendant; ii) reasonable in light of the common good and social conditions in the State and iii) proportionate to the scheme of awards for personal injuries generally.

There were issues of credibility and reliability of the plaintiff?s evidence. The correct approach was to accept the trial judge was generally satisfied with the plaintiff?s credibility and examine the award of damages against the medical background to determine if it was disproportionate. There were two findings of fact that were not supported by the evidence in relation to the plaintiff?s ability to lift her right arm and the pain medication she was taking for an unrelated back condition. For these reasons the court determined that the award to the plaintiff was wholly disproportionate to her injuries. The court allowed the appeal and varied the High Court Order by awarding the plaintiff ?50,000 in respect of pain and suffering to date and ?15,000 for future pain and suffering.

Judgment of Ms. Justice Irvine delivered on the 25th day of February 2016

1 This is the defendant's appeal against the judgment and order of the High Court (Barr J.) made in a personal injuries action on 4th July 2014.

2 On that date the High Court judge awarded the plaintiff the total sum of ?125,680 damages and directed that the defendant pay the cost of the action, the same to be taxed in default of agreement. A stay on that order was granted on terms that the defendant pay a sum of ?60,000 to the plaintiff pending this appeal.

Background

3 The plaintiff's claim was brought in respect of personal injuries sustained by her in a road traffic accident which took place on 8th September 2010 when she was a passenger in a motor vehicle driven by her husband that was struck from the rear by the defendant's motor vehicle on the N7 near Naas, Co. Kildare.

4 The High Court judge awarded the plaintiff a sum of ?90,000 in respect of pain and suffering to date, ?30,000 in respect of pain and suffering into the future and an agreed sum of ?5,680 in respect of special damages.

Judgment of the High Court

5 In making his award the trial judge relied upon the following findings of fact. The plaintiff was born on 24th February 1964 and was fifty years of age at the date of the hearing. He found that at the at the time of the impact the plaintiff placed her right hand against the windscreen to protect her head and that as a result of the collision she suffered significant injuries to her right shoulder, right hand and thumb. The plaintiff was prescribed pain killing medication and was advised to undergo physiotherapy. She was referred to three orthopaedic surgeons; Mr. John Quinlan, Mr. Joseph O'Beirne and Mr. Diarmuid Moloney. The last of these, Mr Moloney, has a special interest in upper limb injuries.

6 As to treatment, the trial judge noted that the plaintiff had undertaken approximately sixty sessions of physiotherapy and that as of the date of trial still required painkilling medication on a daily basis. In February 2012 her right shoulder had been manipulated under general anaesthetic and the affected area injected. In November 2012 she had had a further subacromial injection. In May 2013 she underwent an arthroscopic subacromial decompression and rotator cuff repair.

7 The trial judge accepted that the plaintiff remained symptomatic as of the date of the hearing. In particular he found that she continued to have some restriction in relation to the internal rotation of her shoulder and that she suffered from ongoing right shoulder and wrist discomfort. The trial judge expressed himself satisfied that the plaintiff was unable to lift her right arm above shoulder level and could not do tasks which demanded overhead work. He also accepted her evidence that she had difficulty finding a comfortable sleeping position and that as a result she suffered from disruptive sleep leading at times to fatigue and irritability. He further concluded that the plaintiff was restricted in her ability to perform certain activities of everyday living such as ironing, hanging out washing, hoovering and dressing. However, he noted that she continued to undertake all of these activities subject to suffering discomfort and as a result was of the opinion that she would continue to carry out these chores into the future.

8 As to her prognosis, the trial judge was satisfied that while the plaintiff would likely achieve a good functional outcome in terms of her right shoulder she would not return to her pre accident status. She would continue to have some restriction in internal rotation and might experience what he referred to as ?occasional pain?.

9 In the course of his judgment the trial judge also referred to the fact that the plaintiff might require further injections into her right thumb to determine the likely cause of her radial hand pain. It is not clear from this part of his judgement whether he compensated the plaintiff in respect of radial hand pain and the possibility that she might require such injections. However, it is clear from what he said about the plaintiff's radial hand pain that he had insufficient evidence from which he might have concluded, that the same could be ascribed to the plaintiff's accident.

10 It is clear from the transcript of the evidence and indeed from the judgement of the trial judge that the credibility of the plaintiff as to the extent of her injuries was a live issue in the case. In this regard the trial judge referred to the evidence which had been advanced by the defendant for the purposes of seeking to establish that the plaintiff had exaggerated the extent of her injuries. By this I mean the photographs and video proved by the defendant in evidence and which showed the plaintiff engaging in a number of activities which in the course of her own evidence she had maintained caused her difficulty including ironing, lying on her right side and raising her right arm overhead. When dealing with the plaintiff's credibility the trial judge also referred to that aspect of the evidence given by the defendant's orthopaedic surgeon, Mr Michael O'Riordan, to the effect that he could find no abnormality with the plaintiff's right wrist function nor any abnormality in her shoulder which might explain the restriction she contended affected her ability to undertake those activities of daily living to which I have already referred.

11 Having referred to these aspects of the evidence he stated:-

?I am satisfied that the plaintiff is an honest person, and has not sought to exaggerate her present symptoms. I accept her evidence and that of her husband that she is a person who will not let pain get the better of her. She would do the ordinary chores of daily living even though this will cause problems for her later on.?

Submissions

12 Mr Maher, S.C. on the defendant's behalf maintains firstly that a number of the findings of fact made by the trial judge were not supported by credible evidence thus impugning the validity of the award of damages based on those findings. Secondly and independently he argues that, even accepting the appropriateness of the facts as found by the trial judge, the sum awarded in respect of both categories of general damages was excessive. Accordingly he seeks to have the said award set aside.

13 As to the trial judge's finding that the plaintiff's evidence as to the extent of her injuries was credible, Mr Maher argues that he either failed to engage with or failed to have proper regard for the following matters, namely:-

(i) The Plaintiff in her evidence stated that the road traffic accident had had no effect on a pre existing back injury which had caused her to have a spinal stimulator fitted. However, in her application form to PIAB and also in her Replies to the Defendant's Notice for particulars she claimed that her back pain had been exacerbated.

(ii) While the plaintiff maintained that the collision had been ?ferocious? the photographs of the car damage and the cost its repair (?1,161.02) suggested that the contrary was the case.

(iii) The plaintiff had advanced a claim for past and future care of in or around ?350,000 (?38,306.24 for past care and ?17,103.69 per annum for future care) which she withdrew, according to the defendant, without adequate explanation, on the morning of the hearing. The sum so claimed was based upon a report that had been prepared by Ms Noreen Roche, Nursing Consultant.

(iv) The plaintiff had asserted and had further demonstrated in the course of her evidence in chief...