Phoenix v Dunnes Stores

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 21 March 2018
• Neutral Citation: [2018] IECA 111
• Date: 21 March 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 111 Record No. 2016/578

BETWEEN

PAMELA PHOENIX

PLAINTIFF / RESPONDENT

- AND -

DUNNES STORES

DEFENDANT / APPELLANT

[2018] IECA 111

Neutral Citation Number: [2018] IECA 111

Record No. 2016/578

THE COURT OF APPEAL

Damages – Personal injuries – Proportionality – Appellant seeking to appeal against an award of damages – Whether the sums awarded were excessive and disproportionate

Facts: The respondent, Ms Phoenix, while working part-time for the appellant, Dunnes Stores, was injured in an accident in a cold room on the 18th September 2006. In a personal injuries action in which liability was conceded, Haughton J, on the 21st November 2016, awarded the respondent some €70,000 in respect of general damages for pain and suffering to date, a further €35,000 for damages and pain and suffering into the future and €929 for special damages making the overall total award for negligence the sum of €105,929. The appellant appealed to the Court of Appeal against the award on the grounds that the sums awarded were excessive and disproportionate.

Held by Hogan J that while the sums awarded were probably on the upper range of what was appropriate, nevertheless given the role of an appellate court outlined in Rossiter v Dún Laoghaire. Rathdown C.C. [2001] IESC 85 (and earlier case-law) the Court could not interfere.

Hogan J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 21st day of March 2018

1 This is an appeal brought by the defendant, Dunnes Stores, against an award of damages for negligence in a personal injuries action in which liability has been conceded. In his judgment delivered on the 21st November 2016 Haughton J. awarded the plaintiff, Ms. Pamela Phoenix, some €70,000 in respect of general damages for pain and suffering to date and a further €35,000 for damages and pain and suffering into the future. It was also agreed special damages of €929 making the overall total award the sum of €105,929.

2 The defendant appeals essentially on the grounds that the sums awarded were excessive and disproportionate.

3 Ms. Phoenix was injured in an accident in a cold room on the 18th September 2006. At the time she was a twenty-six year old university student who was working part-time for Dunnes Stores. She was using a pallet truck to move stock. As she tried to manoeuvre the pallet truck backwards she slipped and fell heavily on her bottom and on her back. She needed assistance to get up and was clearly shocked. She was taken by ambulance to St. Lukes Hospital, Kilkenny where she had pain in her lower back. While x-rays were taken, these fortunately did not show any bone damage and she was discharged home with some pain relieving medication and with medical advice to take some time off work. In the immediate days after the accident Ms. Phoenix was on crutches.

4 The immediate prognosis from her general practitioner at the time, one Dr. O'Carroll, was that she had recovered and fit for work. These notes were recorded a week after the accident. It is, however, accepted that she was unable to cope with the same store work which she had been doing in Dunnes. Ms. Phoenix accordingly obtained some lighter sales assistant work in the Elverys sports shop starting on the 19th October 2006. The plaintiff was, however, unable to cope with the continuing pain, particularly as it entailed standing around in the shop and she ultimately lost that job in January 2007.

5 After that period the plaintiff suffered persistent low back pain which became chronic and she became increasingly depressed. She went on a course of physiotherapy in the first half of 2007 but found that the treatment did not help. She had acted on the medical advice to exercise and to swim. She attended a new general practitioner from October 2007 onwards, a Dr. Reynolds. He found that she had chronic pain and her mood was depressed. She was prescribed an analgesic and Amitriptyline for her depressive condition Although there was some improvement by January 2008 there was still chronic pain and her mood was depressed. Dr. Reynolds referred her to a back clinic for an MRI.

6 Haughton J. accepted that as a result of the accident: 'the chronic back pain and depressive symptomology the plaintiff put on a lot of weight, such that by October 2007 she was at 96 kgs.' This has not surprisingly added to the cycle of back pain, restricted movements, fatigue, loss of sleep and low mood. The plaintiff found herself unable to work in 2007. She had ongoing struggles with her education at Maynooth University where she did ultimately obtain her Diploma in Drama and Theatre Studies. Ms. Phoenix had hoped to go to UCD to study for a Masters in Drama and Therapeutic drama, but as she endured pain, lack of mobility and lack of relief from her condition. She felt she was unable to cope with the requirements of a full time course or its physical demands. In February 2008 Dr. Reynolds noted that the plaintiff had suffered a reactive moderately severe depression which she felt on the whole had improved with some treatment. It is accepted that the accident significantly exacerbated a pre-existing underlying depressive condition leaving here significantly more psychologically vulnerable and more susceptible to emotional upheaval and depression on an on-going basis.

7 This has not surprisingly added to the cycle of back pain, restricted movements, fatigue, loss of sleep and low mood. The plaintiff found herself unable to work in 2007. She had ongoing struggles with her education at Maynooth University where she did ultimately obtain her diploma in drama and theatre studies. She had hoped to go to UCD to study for a Masters in Drama and Therapeutic Drama but she endured pain, lack of mobility and lack of relief from her condition. She felt she was unable to cope with the requirements of a full time course or its physical demands. In February 2008 Dr. Reynolds noted that the plaintiff had suffered a reactive moderately severe depression which she felt on the whole had improved with some treatment.

8 In March 2008 the plaintiff obtained work in the U.K.. A few months later she unexpectedly became pregnant but found that the father offered her no support. She suffered a miscarriage three months into the pregnancy in October 2008. These were obviously very difficult times for the plaintiff. Her consultant psychiatrist, Dr. Alan Byrne, concluded in a report dated the 2nd January 2010 that the miscarriage had 'tipped her over the edge' and had exacerbated considerably this depressive illness. He stated that 'her reactions and limitations produced by the back problem were understandable.'

9 I pause here to observe that at the hearing of the appeal, counsel for Dunnes Stores, urged strongly that this Court should treat this most unfortunate incident as in effect a novus actus interveniens which broke the chain of causation so far as the exacerbation of the depressive conditions was concerned. For reasons which will later become clear, I do not find it strictly necessary to resolve this issue because I think that the award can be upheld even if this question is resolved in the defendant's favour.

10 In April 2012 she was referred to the pain clinic of Dr. Camillus Power at Tallaght Hospital. He noted her current pain was located in her lower back on both sides with the right greater than the left. She scored a pain of six out of ten on a visual analogue scale. She chose the words 'hurting, penetrating, nagging, dull, tender, stabbing and miserable' to describe her pain. She said that the swimming and the exercise make the pain better, but that walking for long periods and washing dishes exacerbated the pain. Dr. Power decided to carry out a series of lumbar facet joint block. She received some benefit from the first set but the second gave no relief. He therefore recommended that she go on a full cognitive pain management programme. She was unable, however, for financial reasons to attend this programme at Tallaght Hospital.

11 In 2013 the plaintiff emigrated to Canada where she obtained work in a retail outlet and settled in Edmonton and where she married in September 2015. In April 2016 she gave birth to a baby boy. While life now seems better and more promising for Ms. Phoenix, she is still affected by the accident.

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