Rowley v Budget Travel Ltd ((in Liquidation))

• Jurisdiction: Ireland
• Judge: Mr. Justice McGovern
• Judgment Date: 04 June 2019
• Neutral Citation: [2019] IECA 165
• Date: 04 June 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA 165 Record No. 2014/699

[2019] IECA 165

THE COURT OF APPEAL

McGovern J.

Peart J.

McGovern J.

Baker J.

Neutral Citation Number: [2019] IECA 165

Record No. 2014/699

BETWEEN/

DENISE ROWLEY

APPELLANT

- AND -

BUDGET TRAVEL LIMITED (IN LIQUIDATION)

RESPONDENT

Damages – Personal injury – Quantum – Appellant seeking damages for personal injury – Whether the sum awarded for pain and suffering into the future was disproportionately low

Facts: The appellant, Ms Rowley, claimed damages for personal injury loss and damage as a result of an accident that occurred whilst she was on holiday in Gran Canaria on the 18th May, 2008. As the appellant and her sister were preparing to depart for the airport at the end of their holiday, the appellant fell when descending a ramp at her hotel. In attempting to break her fall, she stretched out her hands and suffered an injury to her right wrist. At the same time, she also complained that her back was tender. Although liability was in issue in the pleadings, when the matter came on for hearing liability was withdrawn and the matter proceeded as an assessment of damages. At the trial in the High Court the only witness was the plaintiff. Two medical reports from Mr Macey, a consultant orthopaedic surgeon, were admitted in evidence. Having heard the evidence of the appellant and considered the two medical reports, Kearns P awarded €20,000 for pain and suffering to date and €5,000 for pain and suffering into the future, and agreed special damages of €1,060 making in all a total of €26,060. On the 10th November, 2011 the respondent, Budget Travel Ltd (in liquidation), tendered the sum of €36,050 by way of compensation for the plaintiff’s loss and damage. As the appellant failed to beat the tender, the President directed that she was entitled to her costs up to the date of tender. The perfected order did not make clear whether the costs awarded were on the Circuit Court scale or the High Court scale. Neither did the order show whether the respondent recovered costs from the date of the tender or whether there was any differential costs order made. The appellant appealed to the Court of Appeal against quantum and, in particular, on the basis that the sum of €20,000 awarded for pain and suffering to date and the sum of €5,000 for pain and suffering into the future was inadequate and against the weight of the evidence and that each of those payments was disproportionately low having regard to all of the evidence.

Held by McGovern J that, having applied the legal principles outlined in Reddy v Bates [1983] IR 141, Rossiter v Dun Laoghaire Rathdown County Council [2001] 3 IR 578, Nolan v Wirenski [2016] 1 IR 461, Shannon v O’Sullivan [2016] IECA 93 and the book of quantum to the award made by the President, he was satisfied that the sum awarded for pain and suffering into the future was disproportionately low and that the Court was entitled to substitute its own figure.

McGovern J held that, having taken into account the appellant’s age and the fact that she would have on-going symptoms (albeit of a low grade nature), the appropriate figure for pain and suffering into the future was €15,000. Having added that to the figure of €20,000 for pain and suffering to date, the Court arrived at a figure of €35,000 for general damages. McGovern J noted that this figure approximates to the higher end of the scale in the book of quantum for a minor wrist injury involving a non-displaced fracture and the lower end of this scale for a moderate injury to the wrist. McGovern J noted that the medical evidence was that her fracture healed satisfactorily and that there was “a minimal risk of adverse sequelae in the future”. By adding the agreed figure for her special damages of €1,060, McGovern J found that the adjusted figure for general and special damages should be €36,060. McGovern J held that he would therefore allow the appeal and vary the damages to that extent.

Appeal allowed.

JUDGMENT of Mr. Justice McGovern delivered on the 4th day of June 2019

1 This is an appeal against an order and judgment of Kearns P. delivered ex tempore on the 15th November, 2012. In the proceedings, the appellant claims damages for personal injury loss and damage as a result of an accident that occurred whilst she was on holiday in Gran Canaria on the 18th May, 2008. As the appellant and her sister were preparing to depart for the airport at the end of their holiday, the appellant fell when descending a ramp at her hotel. In attempting to break her fall, she stretched out her hands and suffered an injury to her right wrist. At the same time, she also complained that her back was tender although this is not referred to in the medical reports and only gets a brief mention in the evidence.

2 Although liability was in issue in the pleadings, when the matter came on for hearing liability was withdrawn and the matter proceeded as an assessment of damages. At the trial in the High Court the only witness was the plaintiff. Two medical reports from Mr. Andrew C. Macey, a consultant orthopaedic surgeon, were admitted in evidence. The transcript of the trial (including the ex tempore judgment) runs to just barely over 10 pages which, perhaps, gives some indication that the issues were quite straightforward.

3 Having heard the evidence of the appellant and considered the two medical reports, Kearns P. awarded €20,000 for pain and suffering to date and €5,000 for pain and suffering into the future, and agreed special damages of €1,060 making in all a total of €26,060. This Court has been informed that on the 10th November, 2011 the respondent tendered the sum of €36,050 by way of compensation for the plaintiff's loss and damage. As the appellant failed to beat the tender, the President directed that she was entitled to her costs up to the date of tender. The perfected order does not make clear whether the costs awarded were on the Circuit Court scale or the High Court scale. Neither does the order show whether the respondent recovered costs from the date of the tender or whether there was any differential costs order made.

4 The appeal is against quantum and, in particular, is brought on the basis that the sum of €20,000 awarded for pain and suffering to date and the sum of €5,000 for pain and suffering into the future was inadequate and against the weight of the evidence and that each of those payments was disproportionately low having regard to all of...