[2015 No. 167]
Irvine J.
Peart J.
Hogan J.
BETWEEN
ANTHONY SHANNON
PLAINTIFF/RESPONDENT
DEFENDANT/APPLICANT
[2015 No. 166]
RITA SHANNON
PLAINTIFF/RESPONDENT
DEFENDANT/APPLICANT
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 depressant medication. The plaintiff’s prognosis was guarded and her recovery from a psychological perspective depended upon the resolution of her physical symptoms.
13. As to Mr. Shannon’s physical injures, the trial judge accepted that he had also sustained a stretching-type injury to a nerve in his neck. She also concluded that, prior to the accident, he had asymptomatic degenerative changes in his neck which had been rendered symptomatic by the collision. As a result of these injuries, he had symptoms of stiffness and he also experienced tingling in his fingers following physical activity. The latter had eased off. He had received two injections from Dr. McCarthy but no other treatment was advised. At the date of the trial Mr. Shannon was taking over the counter painkillers, but only on an irregular basis.
14. As to the future pain and suffering likely to be experienced by Mr. Shannon arising from his physical injuries, the trial judge concluded that his symptoms had become chronic and were likely to continue into the foreseeable future.
15. As to Mr. Shannon’s psychological injuries, the trial judge accepted that he been shocked and frightened by the collision and that he had made such a complaint to Dr. McCarthy on his first attendance. He had not required any medical attention in respect of his stated anxiety until such time as he was referred to Dr. Morrison, consultant psychiatrist, by Dr. McCarthy in February 2014. The trial judge accepted Dr. Neville’s diagnosis that in the aftermath of the collision Mr. Shannon had developed Post Traumatic Stress Disorder. However, she concluded that his symptoms had been “mild” and less severe than those experienced by his wife. He had required no treatment i.e. no physiotherapy or cognitive behavioural therapy. She was satisfied that after his symptoms of Post Traumatic Stress Disorder had abated that he continued to have an adjustment reaction with mixed emotions of anxiety and mild depression but in respect of which he was not making any major complaints of continuing ill effects.
16. In conclusion, the trial judge found that Mr. Shannon, who was 57 years of age at the time, had developed a significant and permanent condition as a result of the road traffic accident and that in respect of which he would continue to be symptomatic into the future.
Submissions
17. Mr Finbar Fox S.C. on the defendant’s behalf makes a relatively straightforward submission in relation to both cases. He states that the sum awarded by the trial judge was excessive in each case both in respect of pain and suffering to date and pain and suffering into the future.
18. Insofar as Mrs. Shannon’s case was concerned, Mr. Fox drew the courts attention to the fact that as of the date of trial only two years and four months had elapsed since the date of the accident. During the first 15 months of that period, Mrs. Shannon had required practically no medical intervention or treatment. Between February 2014 and the date of trial, while there had been a greater medical presence in her life she had received practically no treatment of any type. Further, the evidence was that psychiatric symptoms had been at their worst in the first year. She had missed no time from her work and gave no evidence that her enjoyment of any other activities had been adversely affected. That being so the award of general damages to date of €50,000 was excessive.
19. Insofar as the award of €80,000 in respect of pain and suffering into the future was concerned, Mr. Fox relied upon the fact that it was not expected that the plaintiff would require any medical treatment. It was not suggested that her work or leisure activities would be impaired in any way. Beyond evidence that the plaintiff had good days and bad days in terms of pain in her neck or tingling in her forearm, and that there was a possibility of future surgery in respect of the stretched nerve in her neck, there was nothing in her medical condition or prognosis to support an award of that magnitude.
20. As for Mr. Shannon, breaking the claim down in the same fashion, Mr. Fox submitted that he too had required practically no medical or intervention over the 15-month period immediately following upon the collision. He had received no treatment of any type. He continued to work and made no complaint that his leisure activities had been interfered with. Between February 2014 and the date of trial, as in his wife’s case, there had been a greater medical presence but little by way of treatment. There was nothing he could not do and nothing had been taken from him in terms of his enjoyment of life. In such circumstances, the award of €35,000 in respect of pain and suffering to date was excessive.
21. As to the award of €50,000 in respect of pain and suffering into the future, Mr. Fox submitted that there was no evidence from any medical practitioner, or indeed the plaintiff himself, such as would justify an award of that nature. There was no suggestion he would require any treatment or medication into the future. Further, he would not be restricted in any of his activities.
22. Mr. Fox 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 awards were disproportionate to the injuries sustained and disproportionate to awards commonly made in more serious cases.
23. Mr. Aidan Doyle S.C. on the plaintiffs’ behalf submitted that the awards that had been made by the learned High Court judge fell within the parameters that were appropriate having regard to the findings of fact which she had made.
24. As to Mrs. Shannon’s injuries, counsel submitted that there was objective evidence of disc encroachment on a nerve causing ongoing pain and that her symptoms had become chronic to the point that it was probable she would be symptomatic indefinitely. She had sustained nerve damage for which she had required two injections into her neck and she remained at risk of surgery in this regard. Her pre-existing degenerative changes in her neck had also become symptomatic. In addition, Mrs. Shannon had sustained a psychiatric injury and in the initial aftermath of the collision had experienced symptoms of flashbacks, nightmares and sleep disturbance. While she was significantly improved as of the date of trial, she nonetheless continued to experience symptoms of depression in respect of which she was still taking medication and in circumstances where her prognosis was guarded.
25. Mr. Doyle submitted that Mrs. Shannon’s injuries should not be equated with the straightforward whiplash-type injury often seen in the courtroom setting. The fact that she had not received significant treatment nor required time off from her job, should not be relied upon as evidence that her injuries were not severe, particularly given that the trial judge had taken the view that these factors were indicative of stoicism on her part.
26. Mr. Doyle submitted that an assessment of damages should not be carried out by reference to some imaginary scale of quantum, where, at the bottom of such scale, minor injuries were to be found which attracted very small damages and at the top, catastrophic injuries in respect of which general damages of in or around the €450,000 figure was the appropriate compensation. He submitted that awards at the highest end of the scale were, in reality, capped by reason of the fact that those plaintiffs were recovering substantial sums of money in respect of special damages. Thus, it would be unfair to assess the plaintiff’s entitlement to damages by reference to where, on such a scale the plaintiffs injuries were to be located.
The Principles to be Applied
27. It is accepted by the parties that, as per the judgment of McCarthy J. in Hay V. O’Grady [1992] 1 I.R. 210, as this Court did not see and hear the witnesses give their evidence, it is bound by the findings of fact made by the learned High Court judge insofar as the same are supported by credible evidence. In this case, there is no suggestion that the findings of the trial judge were not so supported.
28. In these circumstances, this court may only overturn the awards of damages made if it is satisfied that no reasonable proportion exists between the sums awarded and that which the appellate court itself considers appropriate in respect of the plaintiffs’ injuries.
29. The task of a judge sitting in an appellate court when asked to interfere with an award of damages made in the High Court was described in the following manner by Lavery J. in Foley .v. Thermal Cement Products Ltd (1954) 90 I.L.T.R. 92 :-
“To make his own estimate of the damages he would award and then compare this estimate with the verdict and say whether there is any reasonable proportion between the sums or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. In making his estimate the judge must adopt all points most favourable to the plaintiff and must keep in mind that the jury had the advantage, which he has not had, of hearing the evidence and of seeing the witnesses and in particular hearing and seeing the plaintiff.
No one will deny that this is a most difficult task. It is especially difficult in a case were personal injuries are the subject of the claim. There is no standard by which pain and suffering, facial disfigurement or indeed any continuing disability can be measured in terms of money. All that can be said is that the estimate must be reasonable and different minds will inevitably arrive at wildly differing conclusions as to what is reasonable. The task must, however, be undertaken.”
30. The same issue was considered by Fennelly J. in Rossiter v. Dun Laoire Rathdown County Council [2001] 3 IR 578, where he described the role of the appellate court in the following manner:
“The more or less unvarying test has been whether there is any “reasonable proportion” between the actual award of damages and what the Court, sitting on appeal, ‘would be inclined to give’ (per Palles C.B. in McGrath v Bourne). Lavery J, in Foley v Thermocement Ltd slightly inverted the language by posing the question ‘whether there is a reasonable proportion between the sum (awarded and the appeal court’s assessment) or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable’. The test is one for application as a general principle, even if McCarthy J, in Reddy v Bates (page 151) suggested a possible rule of thumb, the need for at least a 25% discrepancy. That is no more than a highly pragmatic embodiment of his very proper counsel against ‘relatively petty paring from or adding to awards’. In this respect, it seems to me that this Court is no longer bound by the special respect due to a jury verdict. On the other hand, it is not a court of first instance. It should only interfere when it considers that there is an error in the award of damages which is so serious as to amount to an error of law. The test of proportionality seems to me to be an appropriate one, regardless, it needs scarcely be said, and of whether the complaint is one of excessive generosity or undue parsimony. It should, of course, be recalled that this test relates only to the award of general damages, as explained by McCarthy J. in a further passage from the same judgment.”
31. It is clear from the aforementioned authorities that an appellate court should not interfere with the award of a trial judge if it is only for the purpose of making some moderate adjustment. This is because the appellate court has not heard or seen the witnesses give their evidence and must accordingly be cautious about second guessing the trial judge’s assessment as to what constitutes appropriate damages in any given case. It should only intervene where it is satisfied that the award made was not proportionate to the injuries sustained and where it considers the award made constitutes an erroneous estimate of the damages properly payable.
The Quantification of Damages
32. It has long been accepted that awards of damages must be:-
(i) fair to the plaintiff and the defendant,
(ii) proportionate to social conditions, bearing in mind the common good
and
(iii) proportionate within the scheme of awards made for other personal injuries (see MacMenamin J. in Kearney v. McQuillan & North Eastern Health Board [2012] IESC 43 and Denham J. in M.N. v. S.M. [2005] IESC 17).
33. However, even where awards are made in accordance with these principles, the goal of damages, which is to put the plaintiff back in the position that he or she was in before they sustained their injuries, is, in most cases, unattainable. This is particularly so in the case of serious injury.
34. As to how a court should decide what is proportionate in terms of damages, I believe it is useful to seek to establish where the plaintiff’s cluster of injuries and sequelae are to be found within the entire spectrum of personal injury claims which includes everything from very modest injuries to those which can only be described as catastrophic. While this is not a mandatory approach, it is a useful yardstick for the purposes of seeking to ensure that a proposed award is proportionate. This type of assessment is valuable because minor injuries should attract appropriately modest damages, middling injuries moderate damages, severe injuries significant damages and extreme or catastrophic injuries damages which are likely to fall somewhere in the region of €450,000. The exercise is also valuable because awards of damages must be proportionate inter se and every injured party who receives an award of damages should be in a position to look to other awards made in respect of different injuries and conclude that their award was fair and just having regard to the relative severity of each. As Denham J. advised in M.N v. S.M., damages can only be fair and just if they are proportionate not only to the injuries sustained by that plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. At para. 44 of her judgment she stated “there must be a rational relationship between awards of damages in personal injuries cases.”
35. Insofar as Mr. Doyle has submitted that the plaintiffs claim should not be measured on a scale of damages which starts at zero and ends at €450,000, on the basis that €450,000 is not in fact the top of the scale because damages are capped at that level for those who suffer catastrophic injury and receive very significant awards by way of special damage, I reject that proposition.
36. It can be stated with relative confidence that cases involving extreme or catastrophic injury coming before the courts in recent years have resulted in awards of in or around €450,000 in terms of general damages. That is not to say that €450,000 is a maximum or that there have not been cases where that sum has been occasionally exceeded. However, the figure of €450,000 is generally accepted by senior practitioners and judges alike as the appropriate level of compensation for pain and suffering in cases of that nature: indeed the High Court, in the exercise of its wardship jurisdiction regularly approves settlement for injures of this type at that level. I do not accept that in practice the sums so awarded have been reduced by reason of the fact that plaintiffs who fall into this category inevitably recover very significant sums in respect of special damage.
37. It cannot, in my view, be correct that a plaintiff can have their general damages reduced on the basis that they are to be awarded a very large sum in respect of their claim for special damage to cover matters such as loss of earnings, future care, aids and appliances, assistive technology etc. That cannot be correct in principle; an injured person is entitled to be compensated in full for all losses flowing from the injuries he sustains. Special damages represent the calculation of actual losses, past and future, which leaves the matter of general damages to be assessed entirely separately.
38. It has to be accepted that there have been some dicta which support the principle which Mr Doyle maintains applies, a principle which I would reject as unjust and perhaps even irrational. Further the leading authority often cited in support of this proposition would not appear to justify that approach.
39. The plaintiff in Sinnott v. Quinnsworth [1984] I.L.R.M. 523, had to be compensated for injuries that rendered him a quadriplegic and which O’Higgins C.J. described as:-
“.. probably the most serious condition that a person can suffer as a result of personal injuries.”
The Chief Justice said that in assessing a sum to compensate the plaintiff for his injuries “the objective must be to determine a figure which is fair and reasonable”. He also cited a relevant consideration, namely that the court should have regard to the fact that all of the plaintiff’s losses and expenses would be provided for in the capital sum in his damages. Therefore:-
“What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation.”
40. The Chief Justice was careful in expressing this principle to ensure that there should be a proper distinction drawn between the sum to be provided for losses, costs and expenses, past and future, which it was the purposes of special damages to cover in full and the award of compensation over and above those elements. That decision does not appear to be authority for the proposition that an injured plaintiff is to have his damages reduced because he has received due recompense for his out of pocket expenses and future needs.
41. Accordingly, coming back to the facts of the present case, I remain of the view that it is reasonable to view the plaintiff’s injuries in the context of the entire spectrum of personal injury claims where, at the outer end, a plaintiff might expect to recover damages somewhere in the region of €450,000. I accept that there may be individual cases in which, having regard to their own specific facts, a judge might rightly decide to exceed that sum.
42. As to where on the spectrum of awards Mr. and Mrs. Shannon’s injuries should be located depends upon extent to which, as a result of the defendant’s wrongdoing, they have suffered and will continue to experience, inter alia, pain, suffering and loss of enjoyment of life. While it is important to understand the nature of their injuries and the relevant medical diagnoses, far more important is the evidence concerning the extent to which those injuries have already and may in the future adversely affect their lives. The value of an injury cannot be determined by the label attached to it. For example, for a judge to state that they were satisfied that a plaintiff suffered from let us say an adjustment disorder or a stretching injury to a nerve would of course be helpful and relevant to the court’s understanding of their condition. However, such a finding needs to be followed up with the trial judge’s assessment as to the consequences for the plaintiff of such an injury. An appellate court needs to know the trial judge’s assessment as to the severity of the symptoms generated by the condition, the treatment undertaken or to be undertaken in respect thereof and the extent to which the symptoms and/or treatment have or will interfere with the plaintiff’s enjoyment of life and for what period.
43. Most judges, when it comes to assessing the severity of any given injury and the appropriate sum to be awarded in respect of pain and suffering to date, will be guided by the answers to questions such as the following:-:
(i) Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
(ii) Did the plaintiff require hospitalisation, and if so, for how long?
(iii) What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?
(iv) What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?
(v) Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?
(vi) While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?
(vii) If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?
(viii) What limitations had been imposed on their activities such as leisure or sporting pursuits?
(ix) For how long was the plaintiff out of work?
(x) To what extent was their relationship with their family interfered with?
(xi) Finally, what was the nature and extent of any treatment, therapy or medication required?
44. As to the court’s assessment as to the appropriate sum to be awarded in respect of pain and suffering into the future, the court must once again concern itself, not with the diagnoses or labels attached to a plaintiff’s injuries, but rather with the extent of the plain and suffering those conditions will generate and the likely effects which the injuries will have on the plaintiff’s future enjoyment of life.
45. It is not possible to catalogue all of the elements to be considered and potentially addressed by a trial judge in a personal injuries case. However, a judge must act rationally and take into account, in summary, the severity of the injury, how long it has taken the plaintiff to recover, whether it has short-term or long-term consequences and if so the impact on the plaintiff’s life in all its different aspects including his family, his work his sports or hobbies or pastimes, in addition to any other features that are relevant in the plaintiff’s particular circumstances.
Decision
46. I find myself in the unenviable position of having to take issue with the conclusions of the learned High Court judge who clearly gave great care and consideration to each of these claims before delivering a lengthy and thoughtful judgment. I fear that she became caught up in the difficult task of deciding the credibility issues raised for her consideration, with the result that she did not provide a sufficient analysis of her reasons for making such large awards in favour of these plaintiffs.
47. Undoubtedly, the trial judge considered the plaintiffs’ injuries to be “significant”, because this is what she said in her judgment, and she then proceeded to assess damages, in the case of both plaintiffs, on that basis. However, her reasons for reaching such a conclusion are not obvious. While the trial judge described in medical terms the nature of the physical and psychological injuries sustained by the plaintiffs and went on to identify how these injuries were borne out by EMG and MRI studies, her analysis of the effect of such injuries on the plaintiffs is not sufficiently detailed to support awards of the magnitude which she made. It is vital that judges in personal injuries cases set out their conclusions as to the consequences for the plaintiff of the injuries sustained in terms of pain, suffering and loss of enjoyment of life, both past and future. Without that reasoning an appeal court is somewhat left in the dark as to the rationale behind the award.
48. The trial judge concluded that both plaintiffs had suffered an injury to a nerve in their neck, causing cervical radiculopathy. She also concluded that it was possible that Mrs. Shannon might require surgery in respect of this injury at some future date. She was also satisfied that both plaintiffs had suffered soft tissue injuries to their neck and shoulders and that in relation to the former, that asymptomatic pre-existing degenerative changes had been rendered symptomatic by the collision. She concluded that these injuries had and would have a significant effect on their lives.
49. In this case, it is difficult to see much evidence of pain, suffering, treatment or limitation on life style such as would support an award of general damages to Mrs. Shannon in the sum of €50,000 and in the case of Mr. Shannon of €35,000 in respect of the two-year and four-month period between the date of the accident and the date of trial. I will deal with the conclusions of the trial judge in respect of the plaintiffs’ physical injuries before turning to her findings in respect of their psychological injuries.
50. The trial judge accepted that they were both assessed in hospital on the evening of the accident. However, they were not detained and did not require any medical intervention or treatment. Whatever symptoms they may have had did not preclude them from going to work the next day and living what appeared appears to have been a relatively normal life until such time as they both went to Dr. McCarthy on 1st December 2012. On that date, both plaintiffs were prescribed painkilling medication, i.e., Tylex for one month.
51. It is undoubtedly the case that the trial judge found that the plaintiffs were both suffering from pain in the neck and shoulder at this stage. However, it is to be noted that Dr. McCarthy did not consider their injuries sufficiently serious to refer them for further expert advice or investigation. Neither did he consider their complaints sufficiently serious to advise them that they should come back for review after any stated period. It is common case that neither of them returned to seek any further advice, treatment or medication until February 2014, some 13 months later.
52. The trial judge clearly addressed the implications of the plaintiffs’ lack of engagement with the medical process over that period and concluded that this was because they were stoical, and that may well be so. However, the fact that they did not return seeking further medication, treatment or advice has to be somewhat indicative of the level of pain and suffering that they were experiencing.
53. Because the court usually has only the plaintiff’s evidence as to the extent of their pain, is important that their evidence be carefully evaluated and consideration given to factors that might assist with the court’s assessment. In that regard, it is common case that most people who sustain injury and have consequential pain seek medical intervention and, if necessary, treatment. The needs of the injured party are usually at their greatest in the days, weeks and months following injury when engagement with the medical and allied professions is likely be at its most intense. Further, it is usually during these periods that plaintiffs who suffer minor or modest injuries are most affected in terms of their ability to work and/or participate in sports, hobbies or pastimes. It must be inferred from the fact that the plaintiffs were both in a position to continue to work, were able to participate in their normal day-to-day activities and did not feel the need to attend a doctor between December 2012 and February 2014 that their symptoms over this period were relatively modest.
54. As to the period between February 2014 and the date of trial, it is true to say that Mr. and Mrs. Shannon were referred for MRI and EMG studies and were also referred for specialist review by Dr. Morrison and Prof. Molloy. While these referrals led to a number of diagnoses being made, such as a stretching or bruising of a nerve and Post-Traumatic Stress Disorder, the lives of the plaintiffs continued on, much the same as they had done over the earlier 13-month period, the only difference being that they each received two injections from Dr. McCarty in respect of their respective nerve injury. Both continued with their work, neither of the missing a day. Neither did they have to abstain from any of their normal activities. Mr. Shannon stated that there was nothing that he could not do. He was able to garden, put out the bins and go to work. His only complaint was that he had some difficulty casting, while out fishing. Mrs. Shannon confirmed that she was able to mind her grandchildren and go to the gym.
55. Of some further assistance in terms of determining the extent of the impact of the injuries sustained on the plaintiffs’ lives must be the fact that at no time did either of them, as an individual, attend a medical practitioner to seek help, treatment or medication in respect of their symptoms. On each occasion they attended Dr. McCarthy, which was only three times in total, they went together. On the only occasion they attended Prof. Molloy, they went together. Likewise, they attended together with Dr. Morrison and later with Dr. Neville, she having been retained due to Dr. Morrison’s unavailability. So while the plaintiff’s may have been symptomatic, neither of them ever had any acute episode or a period of individual pain which required them to seek advice, treatment or medication.
56. Insofar as the plaintiffs’ psychological injuries are concerned, I have detailed these earlier at para 12 and 15 of this judgment, so I will not repeat them here. Suffice to state that I find it difficult, from the judgment of the trial judge, to assess the extent to which she likely relied upon the plaintiffs’ psychological injuries when she came to assess the amount of damages to be awarded in respect of pain and suffering to date. While she made findings of fact concerning the psychiatric injuries sustained by both plaintiffs and charted their recovery, she did not state her conclusions as to the severity and frequency of their symptoms such as flash backs and nightmares, nor her conclusions as to the extent to which and over what period these affected the plaintiffs in their enjoyment of everyday life.
57. What is clear, however, is that regardless of the existence of symptoms such as those last mentioned, the severity of the plaintiffs’ symptoms was not such that they felt it necessary to seek any professional assistance. It was only following their attendance upon Prof Molloy in 2014 that they were ultimately referred for psychological review.
58. Insofar as pain and suffering into the future is concerned, while the trial judge clearly took the view, in Mrs. Shannon’s case, that she would continue to suffer some tingling in her arm and pain and discomfort in her neck because her condition had become chronic, regrettably, she does not detail the symptoms or limitation on lifestyle that explain an award of the magnitude of €80,000. She did not, for example, identify what she believed Mrs. Shannon would likely experience in terms of pain arising from the chronicity of her symptoms, and without such analysis an appellate court is in a position of some difficulty when asked to review a trial judge’s award of general damages. It needs to know the trial judge’s conclusions as to the likely frequency, severity and duration of any adverse sequelae. Obviously, a plaintiff who is expected to suffer modest pain which can be relieved by over-the-counter medication for a couple of hours a week will attract an entirely different award of damages to the plaintiff who is expected to experience lifelong pain on of the type that cannot be controlled by medication. Further, an appellate court needs to know the conclusions of the trial judge as to the likely effect that any anticipated pain will have on a plaintiff’s lifestyle, hobbies and work.
59. However, this fact notwithstanding, I think it can reasonably be inferred from:-
(i) her lack of any apparent need for prescribed medication, other than Tylex for a month post accident,
(ii) the fact that her only medical treatment consisted of two injections given by Dr McCarthy in 2014,
and
(iii) the fact that she required no rehabilitative intervention of any sort and (iv) that she had not been disrupted in her working, leisure or sporting activities, that Mrs Shannon was unlikely to experience anything significant in terms of pain or discomfort or limitation in lifetime activities post the date of trial.
60. Insofar, as a trial judge may conclude, as occurred in the present case, that a plaintiff remains at risk of surgery, an appellate court needs to know whether the judge considered that risk to be minimal or substantial. It also needs to know what such surgery would entail in terms of pain and suffering, the relevant recuperation period and the likely prognosis. If the risk of a surgical procedure is 50% as opposed to 5% this will obviously sound in damages. Likewise, the extent of any such surgical intervention and the plaintiff’s likely prognosis are all material to the damages to which the plaintiff is entitled.
61. In this case, however, all we know from the judgment of the trial judge is that she factored into her consideration, when awarding damages for pain and suffering into the future, the fact that the plaintiff remained at risk of surgery in respect of the bruising injury to the nerve in her arm. The extent of that risk is not mentioned nor any detail given as to what the surgery, if it were required, would involve. The fact that she did not do so, to my mind, was because none of these issues were canvassed in any detail with Prof. Molloy, who was the witness who had advised as to the possibility of such surgery. Absent that detail, I am not satisfied that there was sufficient evidence to entitle the trial judge to make an award which included compensation for the possibility that she might require future surgery.
62. A similar problem arises in respect of the trial judge’s conclusion that the plaintiff had developed a depressive illness which required antidepressant medication and in respect of which the prognosis was guarded. The trial judge did not identify the extent to which she expected such condition to impact upon the plaintiff’s life nor whether her symptoms were fully or partially controlled by medication. What is clear, however, is that up to the date of trial, there was little evidence to suggest that the plaintiff’s psychological symptoms had not adversely affected her from a vocational or social perspective. Thus, it might reasonably be inferred, notwithstanding the absence of any specific guidance from the trial judge, that Mrs. Shannon was unlikely to suffer much by way of psychological problems deriving from her road traffic accident into the future.
63. When it came to her assessment of Mr. Shannon’s injuries, the trial judge concluded that his injuries were less severe than those sustained by his wife but that he was likely to remain symptomatic indefinitely because of the accident. Unfortunately, however, she does not state her conclusions as to the frequency or severity his pain or emotional upset and she appears to have placed little reliance upon the fact that he was not limited in his work or leisure activities as a result of his injuries.
64. It is true to say, as already advised, that the trial judge concluded that the reason why Mr Shannon did not stay out of work was because he was stoical, and this court must accept that finding. However, it must be inferred from the fact that he was in a position to remain at work and never missed a single day that his pain, whatever its frequency, was manageable to the point that his life remained much as it was prior to the collision. His sole expressed limitation was casting a line when fishing and with the exception of two injections administered by Dr McCarty, he received no treatment of any nature.
65. Insofar as the trial judge’s award for damages for pain and suffering into the future is concerned, she clearly based her award on her conclusion that the degenerative changes in Mr Shannon’s neck would likely continue. However, as in the case of Mrs Shannon, the she did not identify the nature and extent of any pain, suffering lifestyle limitation that he would likely experience as a result. I have already expressed my view that a trial judge must support any such award by reference to their conclusions on such matters. Without that detail it is difficult for an appellate court to assess whether an award of general damages was reasonable, just and proportionate having regard to the injuries . These difficulties notwithstanding, in my view, the was nothing in the evidence to suggest that Mr Shannon would experience much by way of pain or discomfort into the future. His symptoms prior to trial had not impacted on his ability to fully engage with all aspects of daily living, and there was no evidence to suggest that his condition would deteriorate.
Conclusion
66. Regardless of the deference which an appellate court must afford to the judgment of the trial judge, for the reasons already stated I am satisfied that the awards of general damages in favour of these 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.
67. I’m quite 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 of thereof and, had she had regard to factors such as those earlier identified at paragraph 42 of this judgement, she would likely have made a significantly lesser award in each case.
68. As to where on the spectrum of awards the injuries and sequelae of Mr and Mrs Shannon, ought to be located, I am quite 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. In this context their injuries must be viewed as modest indeed. I accept, of course, 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, they too must be modest. That being so, in Mr Shannon’s case I would set aside the award of the trial judge in respect of general damages and would propose 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 I would likewise set aside the award of the trial judge in respect of general damages and propose 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.
