A €96,000 award to a man who was injured when a lorry rear-ended his car in stationary traffic has been cut to €55,000 by the Court of Appeal.
Derek Coughlan (60) of Meadowmount, Churchtown, Dublin, sued CGR Construction Ltd, of Ashbourne, and Niall O’Sullivan of Kilbride, both Co Meath, over the accident on the Malahide Road, Dublin, on August 13, 2020.
Last November, Ms Justice Carmel Stewart awarded him €96,758. The award included €75,000 in general damages in relation to a shoulder injury he suffered and the judge “uplifted”, or increased, this by €15,000 for additional injuries. A further €6,758 was awarded in special damages for him to obtain orthopaedic surgery.
The defendants appealed claiming the award was excessive because the High Court judge misdirected herself as to the appropriate category in the personal injury guidelines. They also said the judge was further in error in her approach to the assessment of damages in the light of various authorities. Mr Coughlan opposed the appeal.
Mr Justice Seamus Noonan, on behalf of a three-judge Court of Appeal, cut that award to just over €55,000. Unfortunately, he said, it seemed the High Court judge misdirected herself on the evidence in a number of important respects.
Award category
This appeared to have led her to the conclusion that an award at the maximum level of the serious category was warranted, he said.
While Mr Coughlan’s injury did not fit precisely into either the serious or moderate category of shoulder injuries in the guidelines, he was satisfied from all the evidence that an award at the upper end, or slightly above, the moderate level and/or at the very bottom of the serious level was warranted..
The appropriate figure for general damages was €55,000 and there was no basis for allowing a sum for future surgery as it had not been established, as a matter of probability, that it will be required, he said.
The judge earlier noted that Mr Coughlan’s car was a write-off and he was brought to Beaumont Hospital after the accident by ambulance, assessed and discharged into the care of his GP. Liability was admitted in the case and it was accepted that in Beaumont he displayed no outward signs of injury, the judge said.
However, his injuries at the time, and as they evolved, included a minor head injury which led to him complaining of headache and a whiplash injury to his neck. There was also a soft tissue injury to his left wrist from gripping the steering wheel at moment of impact and another soft tissue injury to his right shoulder which appeared to have become his most troublesome complaint.
Mr Coughlan had worked as a floor installer since the age of 17 until 2016 when he suffered a significant myocardial infarction which led to his retirement from heavy work and he has not worked since, the judge said.
Doctor examinations
Five doctors examined Mr Coughlan in the time since the accident, the last being by consultant neurosurgeon Steven Young in April 2023, the judge said. Although Mr Young did not examine Mr Coughlan’s shoulder or refer to any investigations or treatment of the shoulder, he did examine his neck and found that there was restriction of neck movement on rotation and abduction to the left side, he said.
This provoked pain at the base of his neck and he was also found to be tender in the soft tissues in that area. The judge said the finding by Mr Young was of considerable significance “not least because it appears to be contradicted by the findings of all the other doctors” who had examined him in this period of two years and eight months post accident.
The dramatic difference between his (Young’s) findings and the rest must, at the very least, “cast considerable doubt on Mr Young’s opinion that the accident had left the plaintiff with a chronic whiplash syndrome, normally an orthopaedic diagnosis,” he said.
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