Shannon v O'Sullivan

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 18 March 2016
• Neutral Citation: [2016] IECA 93
• Date: 18 March 2016
• Court: Court of Appeal (Ireland)
• Docket Number: [2015 No. 167] [2015 No. 166]

Irvine J.

Peart J.

Hogan J.

BETWEEN

ANTHONY SHANNON

PLAINTIFF/RESPONDENT

AND

DEBBIE O'SULLIVAN

DEFENDANT/APPLICANT

RITA SHANNON

PLAINTIFF/RESPONDENT

AND

DEBBIE O'SULLIVAN

DEFENDANT/APPLICANT

[2016] IECA 93

Irvine J.

[2015 No. 167]

[2015 No. 166]

THE COURT OF APPEAL

Damages ? Pain and suffering ? Special damages ? Applicant seeking to appeal against two awards of damages ? Whether the awards were excessive to the point that they should be set aside

Facts: The plaintiffs/respondents, Mr and Mrs Shannon, on the 7th November 2012, were involved in a road traffic accident at Anglesea Road, Clonmel. Mrs Shannon was travelling as a front seat passenger in her husband?s vehicle when the defendant?s, Ms O?Sullivan?s, car emerged from a road on her left and struck the passenger door with such force that the airbag was deployed. In the High Court, the defendant/applicant mounted an extremely robust challenge to the validity and extent of the injuries sustained by both plaintiffs. On the 25th March 2015, Donnelly J awarded Mrs Shannon a total award of damages of ?131,463 comprising ?50,000 in respect of pain and suffering to date, ?80,000 in respect of pain and suffering into the future and agreed special damages of ?1,463. She awarded Mr Shannon a total sum of ?91,463, made up as to ?35,000 in respect of pain and suffering to date, ?55,000 in respect of pain and suffering into the future and an agreed sum of ?1,463 in respect of special damages. The defendant appealed to the Court of Appeal against the awards of damages made by the High Court, maintaining that each of the aforementioned awards were excessive to the point that they should be set aside. The defendant submitted that the severity of the injuries sustained by both plaintiffs had to be measured by reference to the extent to which their injuries had affected their enjoyment of life or had deprived them of their ability to participate in activities which they would otherwise have enjoyed. Measured in this way, the defendant submitted that the awards were disproportionate to the injuries sustained and disproportionate to awards commonly made in more serious cases. The plaintiffs submitted that the awards made by the High Court judge fell within the parameters that were appropriate having regard to the findings of fact which she had made.

Held by Irvine J that she was satisfied that the awards of general damages in favour of the plaintiffs were not just and fair or proportionate to the injuries they received; neither were they proportionate to those commonly made in personal injury claims involving greater or lesser injury. Irvine J was satisfied that had the trial judge assessed the significance of the plaintiffs? injuries by reference to the severity of other injuries which fall within the entire spectrum of personal injuries claims and the awards commonly made in respect thereof and, had she had regard to factors such as the extent to which, as a result of the defendant?s wrongdoing, they have suffered and would continue to experience,?inter alia, pain, suffering and loss of enjoyment of life, she would likely have made a significantly lesser award in each case.

Irvine J held that, as to where on the spectrum of awards the injuries and sequelae of Mr and Mrs Shannon, ought to be located, she was satisfied that their claims must fall towards the bottom end of the scale which has minor injuries at one extremity and catastrophic injury at the other. Irvine J held that, in this context, their injuries must be viewed as modest. She accepted the trial judge?s finding that Mrs Shannon?s injuries were slightly more severe than those of her husband. However, in order for their awards to be fair and proportionate, Irvine J held that they too must be modest. That being so, in Mr Shannon?s case Irvine J set aside the award of the trial judge in respect of general damages and proposed in its place an award of ?25,000 in respect of pain and suffering to date and a sum of ?15,000 in respect of pain and suffering into the future. In Mrs Shannon?s case Irvine J likewise set aside the award of the trial judge in respect of general damages and proposed an award of ?40,000 be made in respect of pain and suffering to date and ?25,000 in respect of pain and suffering into the future.

Appeal allowed.

JUDGMENT of Ms. Justice Irvine delivered on the 18th day of March 2016

1 This judgment is delivered in respect of the defendant's appeal against two awards of damages made by the High Court (Donnelly J.) on 25th March 2015 at the Kilkenny High Court.

2 The learned High Court judge awarded Mrs. Rita Shannon a total award of damages of ?131,463 comprising ?50,000 in respect of pain and suffering to date, ?80,000 in respect of pain and suffering into the future and agreed special damages of ?1,463. She awarded Mr. Anthony Shannon a total sum of ?91,463, made up as to ?35,000 in respect of pain and suffering to date, ?55,000 in respect of pain and suffering into the future and an agreed sum of ?1,463 in respect of special damages.

3 The defendant maintains that each of the aforementioned awards were excessive to the point that they should be set aside.

Background

4 Mrs. Shannon was born in July 1960, is a married lady and a mother of two children. Mr. Shannon, was born in May 1957 and is a factory worker.

5 On 7th November 2012 Mr. and Mrs. Shannon were involved in a road traffic accident at Anglesea Road, Clonmel. Mrs. Shannon was travelling as a front seat passenger in her husband's vehicle when the defendant's car emerged from a road on her left and struck the passenger door with such force that the airbag was deployed.

6 In the High Court, the defendant mounted an extremely robust challenge to the validity and extent of the injuries sustained by both plaintiffs. They did so in reliance on the following assertions:

(i) That the plaintiffs had not proceeded directly to hospital, as they had initially claimed, but had gone there several hours after the collision.

(ii) That while Mr. O'Sullivan maintained he was examined in the hospital, no records existed concerning such examination.

(iii) That the plaintiffs had both sought medical attention for the first time on 1st December 2012, several weeks post-collision.

(iv) That the plaintiffs did not attend their long-established General Practitioner, but attended a retired General Practitioner, Dr. Sean McCarthy, who had been recommended to them by Mrs. Shannon's brother.

(v) That the plaintiffs had no further medical review until they were seen by Dr. McCarthy for the second time in February 2014, at which stage they were both sent for an MRI examination and referred to a consultant psychiatrist.

(vi) That both plaintiffs had been referred to Prof. Michael Molloy, Consultant Rheumatologist, in May 2014 and were then both referred for EMG studies.

(vii) That both plaintiffs were later diagnosed with psychological injuries.

7 All of the aforementioned matters, and indeed several other issues of credibility, were canvassed with the plaintiffs and their doctors, i.e., Dr. Sean McCarthy and Prof. Molloy, Consultant Rheumatologist. In addition, the court had the benefit of hearing the evidence of the defendant's own orthopaedic surgeon, Mr. Michael O'Riordan.

Trial Judge's Assessment

8 Having considered all of the evidence, the trial judge delivered a lengthy and considered judgment in the course of which she dealt with the issues of credibility, causation and the extent of the plaintiffs' injuries.

9 As to credibility, the High Court judge found the plaintiffs to be honest and extremely hard working people. Neither had missed a day's work as a result of their injuries. She drew no adverse inferences from the facts that had been established by the defendants relating to the credibility issues to which I have already referred. The fact they had not attended a doctor for 14 months after their initial attendance she considered to be evidence of stoicism on their part, and the fact that they had made no claims in respect of loss of earnings she considered was evidence of honesty.

10 As to the cause of the stretching/bruising-type injury to a nerve in Mrs Shannon's neck, the High Court judge accepted Prof. Molloy's evidence that this injury, which was evidenced in EMG studies, was likely caused by the road traffic accident. She concluded that this injury had become chronic, would continue to affect the plaintiff into the future, and that there was some possibility she might require surgery. The trial judge also accepted Prof. Molloy's evidence that the collision had rendered symptomatic Mrs. Shannon's pre-existing but previously asymptomatic degenerative changes in her neck. In this regard she had received two injections from Dr. McCarthy.

11 As to the future, the trial judge concluded that as a result of the aforementioned injuries the plaintiffs' pain had become chronic and would continue into the future. Further, she accepted Prof. Molloy's evidence that there was some possibility of surgery in the future.

12 As to psychological/psychiatric injury, the trial judge did not accept that Mrs. Shannon's symptoms had been as severe as she had maintained when she was seen by Dr. Neville, consultant psychiatrist. Had they been severe she would likely have mentioned them to her own General Practitioner, Dr. Walsh, whom she had attended with depression four months prior to her accident and later again in July 2012 in respect of another personal matter. Accordingly, the High Court judge rejected the diagnosis made by Dr. Neville that Mrs. Shannon had suffered Post Traumatic Stress Disorder. That said, she accepted that she had experienced flashbacks and nightmares and had had difficulty sleeping post accident. While these symptoms had abated, she continued to suffer symptoms of ongoing depression which required anti...