Supreme Court of Ireland Decisions

1. Sandra Miley met with an accident on 16th January, 1994, as she was cycling at Sandyford, Co. Dublin. The defendant’s car came out of a side road and struck her and she fell to the ground hitting her head. Unfortunately, she was not wearing a helmet and the defence took the point that this represented contributory negligence on her part. Liability, as such, was not otherwise in issue. The trial judge Johnson J., when he came to give judgment on 4th February, 1998, held with the submission that the appellant should be found guilty of contributory negligence but he found that it should be on the small side, amounting to 10%. While the appellant initially appealed against that finding, it was not pursued at hearing before us.

2. As regards the damages, the first thing to be said is the appellant got a nasty head injury. It is true that she was not knocked unconscious. She told about how she suffered from insomnia and depression. She had this sensation of no feeling at all in her body; she was in shock and she felt very apart, “separated from everything”. The appellant continued in a state of shock and depression and had severe mood swings and dreadful period pain. Her menstrual cycle was thrown out of kilter and her libido was affected. That all lasted for about six months or more. This shaking up in itself, and these injuries, were of a not insignificant dimension in my opinion, and for which, if there was nothing else in the case, she would be entitled to a reasonable sum in damages. But the case does not rest there. Miss Miley also lost her sense of smell and taste and while it appears that by the time the case came for hearing on 4th February last, she had recovered her sense of taste pretty well, she has in effect suffered a severe loss of the sense of smell. It is very hard, I suppose, for one who has not undergone such an injury oneself to visualise what it is like. When she came to describe it, she said:-

3. She was asked to give an example and she replied:-

4. Miss Miley gave evidence that before the accident her ability to smell was perfect. The whole point of having a proper sense of smell is that it can differentiate different odours, and so forth, and if the thing is disguised or coming out differently or whatever, then in a way that almost comes to a loss of a sense of smell. She has not got a proper sense of smell. I think it is fair to say that the doctors are more or less in agreement on both sides that this will be a permanent condition.

5. Once this litigation is disposed of with this appeal, one hopes that Miss Miley will be able to put all this anxiety and so forth behind her. The plaintiff is a thirty year old woman and it is agreed on all sides that she gave her evidence very fairly. There is no suggestion of any exaggeration. But, as

6. Lynch J. observed in the course of the debate, we have only five senses and a significant loss, which I hold it is, of smell must rank as a serious disability for such a young woman who has many years, hopefully, ahead of her.

7. The total award the judge gave was £32,000 for pain and suffering to date and into the future. He did not break the sums as between past pain and suffering and pain and suffering in the future. We are only entitled to interfere if we think that the award was significantly on the low side. We cannot fine tune, so to speak, an award and I do not attempt to do that. But I think the award was significantly low in this case and I would increase it to the sum of £45,000.