O'Sullivan v Brozda

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 12 March 2020
• Neutral Citation: [2020] IEHC 129
• Date: 12 March 2020
• Docket Number: [2017 No. 11618 P.]
• Court: High Court

BETWEEN

JOANNE O'SULLIVAN

PLAINTIFF

AND

AGNIESZKA BROZDA, MARY COUGHLAN & JASON COUGHLAN

DEFENDANTS

[2020] IEHC 129

Barr J.

[2017 No. 11618 P.]

THE HIGH COURT

Assessment of damages – Road traffic accident – Liability – Plaintiff seeking damages – Whether the plaintiff had been injured to the extent which she claimed

Facts: The plaintiff, Ms O’Sullivan, on 27th August, 2016, was a front seat passenger in a motor car owned by the second defendant, Ms Coughlan, which was being driven by her boyfriend, the third defendant, Mr Coughlan, at the time. A vehicle owned and driven by the first defendant, Ms Brozda, collided into the rear of the vehicle in which the plaintiff was travelling near Hazelwood Shopping Centre, Glanmire, Co. Cork. The first defendant accepted liability for the accident. Accordingly, the action proceeded as one for assessment of damages only. The defendant did not accept that the plaintiff had been injured to the extent which she claimed, as a result of the road traffic accident.

Held by the High Court (Barr J) that the plaintiff had her life totally disrupted for three years; her injuries had affected her in every aspect of her life, she had been rendered considerably disabled during this period and she had undergone very extensive treatment. Having taken all of these matters into account, Barr J awarded the plaintiff general damages to date in the sum of €96,000 and general damages for the future in the sum of €50,000. In relation to special damages, he awarded the sum of €17,648.98 for medical and other expenses to date. It was agreed between the parties that in regard to the level of the plaintiff’s earnings prior to the time of the accident, her net loss of earnings per annum would amount to €33,315.96. In respect of the period from January, 2017 to date, being three years and two months, he awarded the sum of €105,480.54. In relation to the amount to be awarded for future loss of earnings, Barr J noted that if the plaintiff were not to work at all over the next two years, she would suffer a net loss of earnings of €66,631.92. Given her levels of pain and restriction in activity, Barr J could not see her earning much in the next year; thereafter, it was somewhat up in the air what her earning capacity would be over the following year. Doing the best that he could, he proposed allowing 50% of her loss of earnings on a total incapacity basis over the next two years, which amounted to a loss of €33,315.96. Adding these heads of damages together gave a total sum of €302,445.48.

Barr J held that the plaintiff was entitled to judgment for that sum against the defendants. He would hear the parties on whether the judgment should be against all the defendants, or only against the first defendant.

Plaintiff awarded damages.

JUDGMENT of Mr. Justice Barr delivered on the 12th day of March, 2020

Introduction

1 This action arises out of a road traffic accident (RTA) which occurred on 27th August, 2016, near Hazelwood Shopping Centre, Glanmire, Co. Cork. The plaintiff was a front seat passenger in a motor car owned by the second defendant, which was being driven by her boyfriend, the third named defendant, at the time. A vehicle owned and driven by the first named defendant collided into the rear of the vehicle in which the plaintiff was travelling. While liability was initially contested between the defendants, that had been resolved prior to the hearing of this action, in circumstances where the first named defendant accepted liability for the accident. Accordingly, the action proceeded as one for assessment of damages only.

2 The plaintiff is currently 31 years of age, having been born on 11th November, 1988. She was 27 years old at the time of the accident. She was employed in the HR department of a major bank based in Dublin. She was a bad candidate for involvement in an RTA, as she had had serious surgery to her neck and skull some weeks prior to the accident on 1st June, 2016. She was recuperating from that surgery at the time of the accident.

3 At the trial, the defendant strongly relied on the proposition that this was a “low impact” collision. They relied heavily on two matters in this regard, being firstly, photographs of each of the vehicles after the accident, which did not show any major structural damage to either vehicle, and secondly, the fact that the repairs to the vehicle in which the plaintiff had been travelling amounted to only €249.70. The plaintiff did not accept that it was a very minor impact She stated that there was a loud bang, her vehicle was shunted forward, her head was propelled forwards and then backwards striking the headrest and her right knee struck the dashboard, causing an injury to her knee. Accordingly, she disputed the defendant's assertion that the impact was very minor.

4 The plaintiff's case is that her neck was in an extremely vulnerable condition, having regard to the fact that she had undergone extensive surgery involving the back of her neck and the base of her skull some 11 weeks earlier. For that reason, the trauma to the soft tissues of her neck and shoulders was considerably worse than would otherwise have been the case, had she been in a healthy state at the time of the accident. It is the plaintiff's case that she has suffered a severe soft tissue injury to her neck, to her shoulders and to her lower back as a result of the accident. There was also an injury to her right knee. In addition, while she had been suffering from headaches for some considerable time prior to the accident, these were considerably exacerbated by the accident and she continues to experience severe headaches to the present time.

5 In an effort to alleviate these symptoms, the plaintiff has undergone extensive treatment from a pain specialist. She has had sixteen interventions from him to date on eight occasions, together with three courses of Botox injections and an injection of fremanezumab administered by a neurologist. In addition, she has had extensive physiotherapy and acupuncture treatment. She has also experienced psychiatric difficulties in the form of depression and PTSD, for which she has been prescribed antidepressant medication. She has had cognitive behavioural therapy and some counselling. Notwithstanding all the treatment received to date, the plaintiff has been unable to work since January 2016, which was prior to the accident. It is envisaged that she will only be able to return to work on a phased basis over the next two years.

6 In a nutshell, the defendant does not accept that the plaintiff has been injured to the extent which she claims, as a result of the RTA. While it is accepted that the plaintiff was a bad candidate for such an accident, due to the fact that she was in the post-operative rehabilitation phase, the defendant does not accept that there was any serious exacerbation of her post-operative condition as a result of the minor impact between the vehicles.

7 Broadly speaking, the defendant's medical witnesses accepted that she suffers pain at present and was not malingering in the usual sense of that term; however, they maintain that her case is unsustainable for a number of reasons. Firstly, even allowing for the weakened state of her neck muscles and ligaments due to the surgery, the impact of the RTA on those soft tissues was minor and as such would only have led to a minor exacerbation of her symptoms, lasting for a number of months at most. Secondly, the plaintiff's continuing complaints cannot be accounted for by such a small RTA, due to the fact that according to the defendant's medical witnesses she has a full range of movement of her neck, shoulders and lower back; there are no neurological signs of injury and all her imaging and scans have been largely clear; all of which indicates that there was no major structural injury as a result of the accident.

8 Thirdly, the defendant's experts maintain that the plaintiff is somewhat hysterical in nature, or is prone to catastrophizing the extent of her injury and disablement, as shown by her behaviour prior to the time of the accident and as demonstrated by certain tests carried out by the defendant's physiotherapist, which indicated that she was prone to catastrophizing and also that she tended to subjectively overestimate her level of disability, when on observation, she had a greater range of movement than her own subjective evaluation thereof. Fourthly, the defendant's experts state that insofar as the plaintiff continues to experience pain, that pain is not due to any physical injuries sustained in the accident, but at this stage over three years post-accident, is more likely to be due to psychological factors. Fifthly, the defendant's experts are of the view that given the psychological cause of her pain, further pain intervention is not necessary and she would be better served by returning to ordinary activities and in particular returning to work. They are of the view that there was no reason why she could not have returned to work before now.

9 The foregoing is merely a brief overview of the positions taken by each of the parties. This is an unusual case in that the plaintiff was under medical supervision in the months and weeks prior to the accident. In particular, she was under the care of Ms. Rachel Ormond, chartered physiotherapist, who had been instructed to advise the plaintiff on a home exercise programme as part of her post-operative rehabilitation. The Court was greatly assisted by the evidence given by Ms. Ormond in relation to the plaintiff's pre-accident and post-accident condition.

10 This case raises important and difficult questions in relation to the nature of chronic pain and whether a defendant, who was liable for an RTA which caused exacerbation of pain in the acute stage, can be held liable for chronic pain which ensued in the years thereafter.

11 Save for one aspect, the plaintiff's claim...