High Court allows personal injury damages appeal, awarding aggravated damages for assault conviction.

THE HIGH COURT

[2025] IEHC 242

Record No. H.C.A. 2024.8

Between

AB

Plaintiff/Respondent

and

MW

Defendant/Appellant

Judgment of Mr. Justice Conor Dignam delivered on the 1st day of May 2025

INTRODUCTION

1. This matter comes before the Court by way of an appeal from the Dublin Circuit Court. It is an assessment of damages in the following circumstances.

2. As there is reference (albeit very limited) in this judgment to family law proceedings I have anonymised the parties. I will refer to them as the plaintiff and the defendant respectively.

3. The proceedings arise from an incident which occurred in the plaintiff’s crèche on the 4 th January 2012. I return to this incident in more detail below but for the moment it is sufficient to note that by Personal Injury Summons dated the 18 th February 2013 the plaintiff sued the defendant for assault, battery, negligence, breach of duty including breach of statutory duty, and trespass to the person on foot of which it is claimed the plaintiff suffered personal injuries, distress, and shock. Arising from the same assault, the defendant was convicted of assault causing harm contrary to the Non-Fatal Offences Against the Person Act 1997 following a three-day trial before a jury in Dublin Circuit Court in June and July 2013. He was sentenced to three years imprisonment, suspended on conditions for a period of three years. This conviction was upheld on appeal by the Court of Appeal who delivered a written judgment (The People (Director of Public Prosecutions) v MW [2017] IECA 175). The Supreme Court refused leave to appeal on the 6th July 2018 (Director of Public Prosecutions v W [2018] IESCDET 99).

4. An appearance was entered on the 23rd April 2013 by the defendant in person. The defendant has acted in person throughout the proceedings. He is a qualified barrister with an address in Belfast.

5. The defendant did not deliver a Defence and on the 18th December 2013 the County Registrar for Dublin made an Order on foot of a motion for judgment in default of Defence extending the time for delivery of same for six weeks.

6. The defendant did not deliver a Defence within this period and the plaintiff brought a second motion for judgment in default of Defence. The defendant delivered a replying affidavit to this motion. He also brought his own motion to strike out the plaintiff’s pleadings ‘for failure to disclose grounds of action for personal injury bill’, to ‘strike out the plaintiff’s action on grounds of a fraudulent action under section 26 of the Civil Liability and Courts Act 2004’, and to compel replies to particulars. On the 3rd June 2014, Her Honour Judge Linnane in the Dublin Circuit Court refused the defendant’s motion and ordered that judgment be entered in favour of the plaintiff on foot of the plaintiff’s motion and that the assessment of damages be adjourned to the trial of the action, with a stay on those provisions for a period of fourteen days to allow the defendant to lodge his Defence. Judge Linnane expressly provided that if the defendant lodged his Defence within fourteen days, the Order for judgment would not come into effect.

7. This Order was appealed by the defendant and Judge Linnane’s Order was affirmed by Haughton J on the 23rd February 2015. No Defence was delivered by the defendant.

8. The matter therefore proceeded in the Circuit Court by way of assessment only. On the 17th January 2024, the matter came before Judge Meehan in the Dubin Circuit Court and he made an award of damages. The defendant did not appear before Judge Meehan on that date.

9. The defendant has never sought to have the Orders of Judge Linnane, Haughton J, or Judge Meehan set aside.

10. Thus, the matter came before this Court as an assessment of damages.

11. However, at the beginning of this appeal, the defendant submitted that the matter should not be dealt with as an assessment only. Having heard submissions, I ruled that the matter should proceed as an assessment only and said that I would give my reasons as part of my judgment. I therefore do so before dealing with the assessment of damages.

12. It is necessary to first set out the background in summary form.

BACKGROUND

13. I do not propose to set all the background out in detail. It is not necessary to do so and, given that there is an underlying dispute between the parents of a child, it is appropriate that there should be the least intrusion in those issues as possible whilst also doing justice between the plaintiff and the defendant. The background is in any event set out in great detail in the narrative contained in the judgment of the Court of Appeal in DPP v MW.

14. The plaintiff is a crèche/nursery manager. She owns the crèche through a company. The defendant made the point that some of the items of damage claimed relate to this company rather than the plaintiff. I deal with this below.

15. The defendant’s child attended the crèche. It seems that the defendant and his former partner, the child’s mother, each collected the child from the crèche on different days. The plaintiff says that at a certain point she was instructed by the child’s mother that the child was not to be collected by the defendant.

16. On the 4th January 2012, the plaintiff received a phone call from the Assistant Manager of the crèche (the plaintiff was in her home office a few minutes from the crèche) telling her that the defendant was at the crèche. The plaintiff says she immediately went around to the crèche and the defendant was sitting in the room where the child was based. The plaintiff’s account is that she asked the defendant to come downstairs to the office and the defendant said that he was not leaving without his child. The plaintiff’s account is that the defendant pushed her twice in the chest. She describes managing to manoeuvre the defendant out the door of the room whilst leaving the child in the room. The plaintiff and the defendant were then in a corridor immediately outside the room with the door into the room closed behind the plaintiff. The plaintiff described the door as being half glass and the corridor as being a narrow corridor. She said that she had her back to the door and had her hand on the handle of the door. She said the situation escalated quickly with the defendant accusing her of being in cahoots with the child’s mother. The plaintiff says that she told a member of staff to call the Gardaí. The plaintiff describes the defendant as banging her arm to dislodge her hand from the handle of the door, and of trying to bite her face and her arm. He then said, according to the plaintiff, that “I’m going to hurt you”, and then head butted her straight in the face. She said that he then tried to get into the room again and tripped over his feet and fell to the floor. The plaintiff has a condition which causes mobility difficulties. The Gardaí came and took the defendant out. The plaintiff gave evidence of the injuries suffered by her.

17. The plaintiff also claims that the plaintiff attended at the crèche on a subsequent occasion (the 26th March 2012) and she has previously described him as breaking-in and/or trespassing on that occasion.

18. The defendant did not give evidence. He cross-examined the plaintiff on some features of her account of the incident and in relation to her injuries. He also crossexamined her about subsequent incidents which are referred to in Updated Particulars of Injuries. It is not necessary to deal with the substance of the cross-examination at this stage, though I return to it later in this judgment. It is sufficient to note that the defendant’s position was that the assault did not occur in the manner described by the plaintiff and essentially that she was being untruthful in her account of the incident and subsequent incidents. He also put to her that she previously gave inconsistent statements about aspects of the incident (in the context of other proceedings which arose from this and subsequent incidents).

NATURE OF THE APPEAL

19. The defendant advanced two reasons why the matter could not proceed as an assessment only. In the context of the defendant’s position that the incident did not happen as alleged he claimed that the plaintiff had suppressed evidence in respect of the incident. Separately, he submitted that Updated Particulars of Injury delivered on the 3 rd November 2023 amount to new pleadings which entitle him to fully defend the matter.

20. The background to the first allegation, i.e. that the plaintiff suppressed evidence, is somewhat complex. As already noted, the defendant was charged with and convicted of assault causing harm on the 4th January 2012. The conviction seems to have been in July 2013. As noted above, there was also a subsequent incident (which is part of the plaintiff’s case) on the 26th March 2012, on which date the defendant attended at the crèche. He was charged with a breach of a family court order and with trespass in respect of this incident. As I understand it, the first of these was withdrawn by the DPP and Judge O’Sullivan in the Circuit Court dismissed the second. The defendant says that in the context of the latter proceedings relating to the 26th March 2012, fraud on the part of the plaintiff was discovered, namely that witnesses (employees of the crèche) had lied and the plaintiff had suppressed statements and evidence relating to the incident on the 4 th January 2012. This occurred on the 11th February 2016. He says that this led to the Gardaí attending the crèche in August 2016 and removing evidence including statements. The defendant says that this only came to light after Haughton J had made his Order affirming Judge Linnane’s Order for judgment in default of Defence and therefore could not have been considered by him and that if it had been available to Haughton J he may well have made a different Order. The defendant submitted that fraud unravels everything and therefore the Order for judgment in default of Defence is unravelled and therefore the matter must not proceed as an assessment only.

21. I am satisfied that this is not a basis upon which this Court could treat the appeal as other than an appeal in respect of the quantum of damages. Essentially, what is sought is that I treat the appeal as though the defendant had delivered a Defence or as though judgment in default of Defence had not been entered. I do not believe that I can or should do so. I am of this view for a number of reasons.

22. Firstly, the defendant could have applied to set aside the Orders of Haughton J and/or Judge Linnane but did not do so. Thus, the matter proceeded on the basis of those Orders granting judgment in default of Defence. It is wholly inappropriate for the defendant to seek to have those Orders set aside by the backdoor by asking this Court to proceed on the basis that this is a fully-contested matter. If the matter had been the subject of an application to set aside, there would have been proper evidence and submissions in relation to the allegations of fraud now made by the defendant, which could have been replied to by the plaintiff. At the hearing, I inquired of the defendant why such an application had not been made and his answer was that he is still trying to get to the bottom of things. That is not a sufficient explanation for not bringing an application in this case. On the defendant’s own case, ample evidence of fraud and suppression of evidence is already available (and has been since 2016) and, if the defendant is of the view that this would or may have caused Haughton J to make a different Order, then there was no need to wait until he obtained more information. Indeed, these, or related points have in fact previously been raised by the defendant in Director of Public Prosecutions v MW [2017] IECA 175 and Waters v The Commissioner of An Garda Síochána & Ors [2021] IEHC 552. Thus, there is no reason why these could not have been raised in these proceedings at a much earlier stage. They were considered in great detail by the Court of Appeal (Edwards J) in DPP v MW. This was the defendant’s appeal against his conviction for assault causing harm on the 4th January 2012. Edwards J listed the grounds of appeal in paragraphs 64-

67 of his judgment. They included a failure to disclose statements of the plaintiff and of other witnesses to events on the 4th January 2012. The Court of Appeal considered the significance or materiality of these statements to the conviction in detail and refused the defendant’s appeal. I obviously make no finding as to whether there is sufficient evidence to warrant the Order being set aside or as to the merits of that evidence. The point is that on the defendant’s own account he has clear evidence of fraud and suppression of evidence.

23. Secondly, and it follows from that point, this is an appeal from the decision of Judge Meehan. That was given on foot of the Orders of Judge Linnane and Haughton J. I am not satisfied that, absent an application to set aside those Orders, I can expand the scope of the appeal beyond the matters which were decided by Judge Meehan, i.e. the quantum of damages (though, of course, it is a de novo appeal).

24. Thirdly, I am in in any event satisfied that the defendant had ample opportunity to deliver a Defence. He made the point that he could not do so because he was seeking further particulars which he claims were necessary to draft and deliver a Defence. As already mentioned, he brought a motion to compel the plaintiff to provide particulars. That motion was struck out by Judge Linnane and that decision was affirmed by Haughton J. Therefore, that point has already been determined. He also raised the interesting point that Judge Linnane gave him fourteen days to deliver his Defence but he could not do so because his position was that he needed the particulars to prepare a Defence and because his appeal would and did take more than fourteen days to come on, the time allowed for delivery of the Defence had expired by the time the appeal was decided. I do not need to determine this point. The fact is that a defendant is always entitled to deliver a Defence expressly on a without prejudice basis to the contention that particulars are needed and in which they reserve their rights to amend the Defence. Furthermore, it is very difficult to see which of the particulars that were sought were so essential to a Defence that its, or their, absence made it impossible for him to deliver a Defence.

25. As a second point, the defendant also alleged that a number of claims in the Updated Particulars of Injury delivered on the 3rd November 2023 amount to new pleadings and that the matter could therefore not proceed as an assessment because he must be given an opportunity to plead in response. The specific matters in the Updated Particulars in respect of which he makes this submission are:

(i) “The Defendant has continued to be verbally abusive and challenging to the Plaintiff when in Court wherein he continues to represent himself in an egregiously aggravating manner.”

(ii) “The Plaintiff continues to suffer flashbacks. The Plaintiff specifically recalls the Defendant stating “I’m going to hurt you”.

(iii) “The Plaintiff is confirmed as suffering post-traumatic stress diagnostic scale on the borderline between mild and moderate PTSD.”

(iv) “The Plaintiff has suffered threats and harassment in the aftermath of the incident the subject matter of the proceedings with stress exacerbated by the long, drawn out nature of Court proceedings and the Defendant’s criminal prosecution with the negative behaviour of the Defendant when questioning and conducting himself in Court.”

(v) “As a consequence of the foregoing the Plaintiff has continued to suffer and sustain severe personal injury and psychological shock and injury.”

26. The defendant said that the matter was set down for hearing in the Circuit Court in November 2023 but could not proceed, partly because the plaintiff had served a number of documents. He said that on that occasion Judge O’Connor left the question of whether the defendant should be permitted to deliver a Defence to the trial judge. (This was disputed by Counsel for the plaintiff). The matter then came before Judge Meehan on the 17th January 2024. The defendant did not attend. He explained that this was because of his disability (the plaintiff has mobility difficulties), a very recent injury, and the weather. He did not make any subsequent application to have Judge Meehan’s Order set aside.

27. I am satisfied that the contents of the Updated Particulars in no way change the substantive case that was being made by the plaintiff all along to such an extent that the defendant must be given another opportunity to deliver a Defence, or indeed, that if he had delivered a Defence, that same would have to be amended. Essentially, the case made by the defendant is that although he did not originally deliver a Defence and judgment in default was entered against him, I should disregard those facts because the matters contained in the Notice are so new as to give rise to a fresh entitlement for him to deliver a Defence. I do not accept that proposition, in particular in light of the actual contents of the Updated Particulars.

28. In respect of (i) and (iv) listed at paragraph 25 above, these matters, in particular the allegation of threats and harassment, had been referred to in Replies to Particulars of the 2nd July 2013 where it was stated, inter alia:

“…note that in addition to the initial incident on 4th January 2012 as set out in the Personal Injury Summons the Defendant also attended on the Plaintiff’s premises on the 26th March 2012 and issued threats to the Plaintiff and her staff. There has been continuing harassment of the Plaintiff by the Defendant and Further Particulars will be furnished if appropriate…In general, the Plaintiff and her staff have been harassed by the Defendant by way of phone calls and emails and evidence will be given at the Hearing of this Action concerning same.”

29. Furthermore, some of these matters, in particular the fact of extensive Court proceedings arising from the incident, also post-date the service of the Personal Injury Summons and the Replies to Particulars and therefore could not have been particularised at the time. They are not standalone claims but rather are particularised as part of the alleged effect of the incident the subject of the proceedings.

30. In relation to (ii), the allegation that the plaintiff “continues” to suffer flashbacks where there is no reference to “flashbacks” at an earlier stage does not constitute a new case in circumstances where the plaintiff’s fear and distress are clearly pleaded from the beginning. The reference to the defendant stating during the course of the incident “I’m going to hurt you” is not a new case. Indeed, it is arguably not a matter for pleading at all. It is part of the circumstances of the assault, which is clearly pleaded. Thus, it is a matter of evidence. Furthermore, the defendant himself entered an excerpt from the transcript of his criminal trial into evidence when cross-examining the plaintiff. It is recorded in that excerpt that the plaintiff said in her evidence at that trial that the defendant said, immediately before headbutting her, that “I’m going to hurt you.” Thus, the plaintiff could not have been in any way surprised at this allegation when it was contained in the Updated Particulars of Injury and was not at any disadvantage.

31. The reference to Post-Traumatic Stress Disorder in the Updated Particulars is the first time that PTSD and a diagnosis of same were mentioned. However, this in itself does not give rise to an entitlement to deliver a Defence or to amend a Defence (if one had been delivered). It is clearly pleaded in the Personal Injury Summons that the plaintiff suffered shock and distress. It is appropriate that further particulars be given if this case was going to be made. In proceeding as an assessment, the plaintiff still had to prove her injuries and therefore the defendant was going to be able to cross-examine her and her witnesses in respect of those injuries (as, indeed, he did during the course of this appeal). This therefore did not give rise to a new pleading requiring a pleading from the defendant. Perhaps more importantly, the defendant’s point is purely technical. He did not suggest that he wished to have the plaintiff examined by his own expert in respect of the diagnosis of PTSD. His case therefore amounts to saying that this was a new plea which permits him to get around the judgment in default of Defence by being permitted to deliver a Defence, without him even seeking to obtain his own evidence in respect of the diagnosis.

32. I am, therefore, satisfied that the matter should proceed as an assessment of damages.

33. Notwithstanding this, I permitted the defendant to cross-examine the plaintiff in relation to the incident. I did so, not because the plaintiff was required to prove the assault, but because it seemed to me that the nature of the assault and the immediately surrounding circumstances could go to the question of quantum. I was of this view for two reasons. Firstly, counsel for the plaintiff made clear that the primary claim was for damages for assault rather than personal injuries. Thus, the nature of the assault is directly relevant to the question of damages in respect of the particular assault. Secondly, part of the plaintiff’s claim was for damages for personal injuries suffered in the assault. Therefore, the defendant was entitled to challenge whether she did in fact suffer the alleged injuries (and the nature of the assault is directly relevant to that) and to challenge the plaintiff’s credibility in respect of the nature of the incident and her injuries.

34. In cross-examination, the defendant did seek to cross-examine the plaintiff on issues going beyond the incident, the circumstances immediately surrounding the assault, and her injuries. For example, he sought to cross-examine on contacts between the child’s mother and the plaintiff. He sought to do so to allege that the plaintiff was “in cahoots” with the mother and to address the plaintiff’s way of dealing with conflict. In my view these matters were entirely irrelevant to the issues which had to be determined. He also sought to allege that the plaintiff was guilty of contributing to her injuries through, for example contributory negligence, but I was of the view that this was not permissible as it goes to the question of liability.

ACCOUNT OF THE ASSAULT

35. For the reasons just explained and as will be clear when I address the approach to the assessment of damages for trespass to the person, the question of quantum can not be entirely divorced from the incident itself. Therefore, before dealing with the injuries, I will deal with the defendant’s challenges to the plaintiff’s account of the assault (summarised in paragraphs 16 and 17 above).

36. I have set out in broad terms the plaintiff’s account of the assault. The defendant did not give any evidence so the only account available to the Court is that of the plaintiff. She was cross-examined at length by the defendant. It was a wide-ranging crossexamination but it can be summarised as amounting to a challenge to the plaintiff’s account on the basis of a broad challenge to her credibility by reference to (i) alleged inconsistencies in what she had previously said during the course of other proceedings,

(ii) what she is recorded as saying to Ms. Anne O’Connell, Consultant Clinical Psychologist, and (iii) flaws in what she said in respect of the subsequent incident on the 26th March 2012. He also sought to cross-examine her on the basis that she had suppressed evidence. These general themes also applied to the cross-examination in respect of the injuries. The defendant’s case was essentially that the incident did not happen in the manner claimed by the plaintiff and she was not telling the truth about it or other events, or her injuries, and she should not be believed. Indeed, at an earlier stage in the proceedings the defendant said on affidavit (grounding an application for discovery) that “discovery is necessary as the Plaintiff has made repeated false complaints of me, has a demonstrably history of concealing evidence from the courts and Prosecuting Authorities, has manipulating the evidence of witnesses who are persons in her employment and made statements of me that are patently false and malicious…”(sic), that “…the Plaintiff is a fantasist prone to making ever increasingly ridiculous statements about me”, “…she is prone to fabricating malicious accounts in her evidence”, and in an email to the plaintiff’s solicitor on the 21st September 2023 he stated that the plaintiff “…will be cross-examined on the long list of fantasies and fabrications she conjures up…”. This approach culminated in the defendant making an application pursuant to section 26 of the Civil Liability and Courts Act 2004 at the conclusion of the hearing.

37. It is not necessary to consider each area of cross-examination but there are some key parts.

38. The defendant cross-examined the plaintiff in respect of a statement in the second report (29th September 2023) of Ms. Anne O’Connell, Consultant Clinical Psychologist, that the defendant attacked the plaintiff “physically on the day (biting her face and headbutting her)…” and that “In her mind’s eye she can still feel the pain of the injuries and see the bite marks and bruises on her skin…” It was put to the plaintiff that what she told Ms. O’Connell about the defendant biting her. This does not have the significance ascribed to it by the defendant. In evidence, the plaintiff immediately confirmed that she was not claiming that the plaintiff bit her but that he tried to bite her. The plaintiff says that she did not tell Ms. O’Connell that he had bitten her but that he tried to bite her. Indeed, crucially, Ms. O’Connell records in her first report (27th August 2015) that the plaintiff told her that the plaintiff had tried to bite her. I find that the plaintiff did not tell Ms. O’Connell that the defendant bit her.

39. There was a lengthy cross-examination about the subsequent incident on the 26 th March 2012. On this date, the plaintiff attended at the crèche again. The plaintiff alleged that he broke in and was trespassing. The plaintiff was charged with trespass (not with breaking-in) and was acquitted on the 11th February 2016. The defendant challenged the plaintiff’s claim that he had broken in. This was directed at showing that the plaintiff was making up allegations against him or at the very least that her complaint and belief were entirely unreasonable and she can therefore not be relied upon as a witness.

Essentially, the plaintiff’s case was that the defendant should not have been on the premises because he had been instructed not to be, and that on the day in question they observed him on CCTV working on the pin-code pad and apparently eventually working out the code (it had been changed since the 4th January 2012). The plaintiff was clear that in those circumstances she considered the defendant to have broken-in and to be trespassing, saying to the defendant when being cross-examined by him that he had been instructed not to come into the crèche and once he came in he had broken in and was trespassing.

The defendant said that he did indeed try to gain access using the code (by entering the code several times) before it transpired the door was already open. He put it to the plaintiff that the door was defective and did not close properly after the last person came through it. The plaintiff responded that she was the last person to use the door and she did not leave it open. This was a lengthy section of the cross-examination and, it seems to me, transpired to be of very little relevance to the plaintiff’s credibility. The defendant himself acknowledged during the course of his cross-examination that he entered a pin code three times before discovering, on his account, that the door was open.

This in fact supports the plaintiff’s account of the defendant being observed working on the key-pad, even if ultimately the door was in fact already open. Furthermore, the defendant did not dispute that he had been instructed not to attend the crèche. The plaintiff was clear in her evidence that it was in this sense that she meant he had broken in and was trespassing. The defendant placed a very heavy emphasis on her claim that he had broken in, characterising it as fictitious. However, it is clear that she was not speaking in a legal sense.

For the reasons which I have just discussed earlier in this paragraph, it was not unreasonable or lacking in credibility that the plaintiff’s honest belief was that the defendant had broken in to the crèche in that sense.

40. The defendant also questioned the plaintiff on a statement in Ms. O’Connell’s first report that “[The plaintiff] took a civil case related to her injuries and was awarded €12,000 but this has not been paid” and in the second report (29th September 2023) where she says “…compensation is still not paid…”, and “…it would be helpful to her for resolution to occur in as timely a manner as possible, with the already agreed restitution and compensation carried through…” It is in fact incorrect to say that an award of €12,000 had been made in respect of any case and the defendant submits that this shows that the plaintiff was being untruthful. The plaintiff was very clear in her evidence that she did not tell Ms. O’Connell that she had received an award of €12,000. Importantly, Ms. O’Connell was also very clear in her evidence that the plaintiff may not have told her this and that this may have been a miscommunication or a misunderstanding on her part. She said that she can only surmise that she was aware that the plaintiff had taken a civil case and that she, Ms. O’Connell, did her own calculations and came up with that figure. The plaintiff did say that she thinks that she told Ms. O’Connell that the defendant had been fined €1000 and that perhaps Ms. O’Connell mixed this up. It is important to note that during the hearing Ms. O’Connell did express surprise that no award had been made, or indeed that civil proceedings had not come to an end even by the time of her second report, in light of the contents of her reports. I am satisfied that the plaintiff did not tell Ms. O’Connell that she had been awarded €12,000 in damages.

41. The defendant also put it to the plaintiff that she had not sought to correct Ms. O’Connell’s reports. She accepted that she had not done so. She said that she did not read the first report immediately before the second assessment

42. I am satisfied that none of these go to the heart of the plaintiff’s credibility so as to undermine the credibility of her account of the incident, or of the plaintiff’s injuries. I therefore accept the plaintiff’s account of both the incident, its aftermath and her injuries.

INJURIES

43. In her evidence, the plaintiff said that following the head-butt, there was a cut on her nose and blood was coming out of her nose. Her nose was swollen. There was bruising on her arm from the defendant banging it to dislodge her hand from the door handle. She attended her General Practitioner on the 4th January 2012. The General Practitioner provided a report but was retired by the time the matter came before me. The defendant objected to the report being admitted without it being formally proved. I have therefore not had regard to its contents. The plaintiff said that the doctor applied steri-strips to her nose and prescribed painkillers and Valium. She said that there was bruising to her face, she was congested and felt “weird” with a headache. She took ten days off work. I accept the plaintiff’s evidence in this regard.

44. She came under the care of Professor Aongus Curran, Professor of Otolaryngology/Head and Neck Surgery. I was not provided with a report from Professor Curran. The plaintiff gave uncontested evidence that Professor Curran performed surgery on the 21st January 2012 under general anaesthetic in which he corrected the nasal bones and deviated septum. This caused more bruising. The plaintiff feels that her nose is now relatively straight with a slight deviation. She described it as being sensitive to cold but not to touch. She also said that she has breathing issues and wakes up at night. Essentially, she feels that from a cosmetic point of view, her nose is not perfect but is good enough. I was also given photographs of the plaintiff in the period following the assault.

45. In relation to her arm, which she said the defendant had repeatedly banged, the anti-inflammatory for her nose also helped with her arm.

46. In relation to her claim of psychological injuries, she said that she was shocked and anxious. She described an overreaction to a road traffic accident in March 2012. Her anxiousness was exacerbated by the defendant breaking in or attending again on the 26 th March 2012 and by phone calls and emails from the defendant. She was afraid and had security installed at her home and the crèche (there is a separate issue about whether the cost of this installation is recoverable). She was anxious every time the matter came up. In this regard, she gave evidence that she had to attend a significant number of court hearings arising from the incident. She estimated the number of such attendances as being twenty-two. These were separate family law and criminal proceedings and the instant proceedings. She describes the defendant’s conduct in these proceedings as amounting to intimidation and harassment. She also said that she has sleep disturbance when these cases came up. She describes herself as not giving people the benefit of the doubt.

47. The plaintiff attended with Ms. Anne O’Connell, Consultant Clinical Psychologist, on the 27th August 2015 and the 29th September 2023. Ms. O’Connell provided two reports and gave evidence at the trial. She adopted the contents of her reports.

48. She recorded the plaintiff on the occasion of her first assessment as describing having strong feelings of anxiety and vulnerability about the defendant and strong feelings of anger towards him. This was reflected in the plaintiff’s evidence. She noted that threats or harassment from the defendant in the form of phone calls and email and his conduct in court hearings were contributing to her negative feelings. She noted that the plaintiff also complained of flashbacks to the incident, particularly when reminded of it by solicitors letters. On these occasions she had nightmares and cold sweats. She frequently thinks back to court appearances. The plaintiff also described reacting with oversensitivity to some situations, including the road traffic accident in March 2012, since the assault and feeling an overwhelming sense of injustice

49. In her evidence, Ms. O’Connell was of the opinion that the plaintiff’s feeling of vulnerability was reasonable and there was no reason for her to think that the plaintiff was exaggerating or fabricating.

50. In 2015, Ms. O’Connell assessed the plaintiff as scoring in the moderate range on the Post Traumatic Stress Diagnostic scale. She showed elevated scores in all areas, and particularly in the scales of Re-experiencing and Arousal.

51. In her report of the 29th September 2023, Ms. O’Connell noted the adverse impact of the stressful and disruptive nature of a significant number of court dates and that the defendant continued to be verbally abusive and challenging to her.

52. Ms. O’Connell records the plaintiff’s difficulties at that stage, including continuing to feel vulnerable and anxious around the defendant and being cautious and lacking in trust around other people, having a grievance at the defendant never apologising and not paying compensation, continuing flashbacks to the incident triggered by the defendant, and legal letters and medico-legal appointments, worry for her family, and frustration and annoyance that she has not been allowed to move forward with her life.

53. Ms. O’Connell assessed the plaintiff as scoring on the borderline between mild and moderate Post-Traumatic Stress Disorder at that stage (2023). It was Ms. O’Connell’s evidence that it was not surprising that the PTSD had persisted as the frequent court appearances act as triggers.

54. The defendant vigorously challenged Ms. O’Connell, including challenging her conclusions and impugning her methodology and professionalism. This was particularly striking in circumstances where the defendant did not call an expert to contradict what Ms. O’Connell said about the plaintiff or about her own methodology.

55. The defendant challenged Ms. O’Connell about not retaining her notes from 2015. In her direct evidence, Ms. O’Connell explained that she did not have her notes from the first assessment because her practice is to destroy documents after six years unless there is a reason not to do so, such as ongoing litigation. In this case, she had not been contacted between 2015 and 2023 so therefore destroyed the records as a matter of course. There is nothing unusual in this. More importantly, the defendant did not call any evidence that this was wrong or inappropriate. However, this became a recurring theme during the crossexamination and the rest of the hearing, with the defendant at one stage saying that Ms. O’Connell was a person who destroyed evidence, and repeatedly referring to Ms. O’Connell having destroyed the documents in a manner and tone which sought to suggest that Ms. O’Connell had deliberately done so in order to ensure that her notes would be unavailable either to the Court or to an expert engaged by the defendant. However, this was a debating point. The defendant only discovered that Ms. O’Connell had not retained her notes at the hearing. He had never sought them previously and had never sought to have the plaintiff examined. Thus, the question of them not being available for an expert engaged by the defendant simply does not arise. Furthermore, there was no basis at all for the suggestion that Ms. O’Connell had acted in a manner that was not in accordance with normal practice or that was wrongful or improper. It is wholly inappropriate to suggest that a professional would act in such a way without any proper evidential basis. Of course, if Ms. O’Connell had been aware that the proceedings were still ongoing it would not have been appropriate to destroy the original notes.

56. The defendant also put a number of specific points to Ms. O’Connell. I do not consider it necessary to deal with them all.

57. He pointed out that her report was entirely wrong in recording that the plaintiff had been awarded €12,000 in a civil case related to her injuries prior to August 2015 and that the defendant had not paid compensation. Ms. O’Connell accepted that this was wrong.

58. The defendant put it to her that this established that the plaintiff was untruthful and, more importantly for the current discussion, that Ms. O’Connell’s conclusions were based on “bad facts”.

59. In relation to the first point, Ms. O’Connell made clear in evidence that she was not saying that the plaintiff had definitely said that she had been awarded €12,000 damages. As noted above, she accepted that this could have been an error on her part. Thus, it does not establish that the plaintiff was “untruthful”.

60. In relation to the second point, i.e. that the conclusions were based on “bad facts”, it initially seemed to me that the alleged fact that the plaintiff had been awarded compensation which the defendant had not paid was significant to Ms. O’Connell’s assessment as she refers to it several times across her two reports. In her first report, Ms. O’Connell stated “[The plaintiff] took a civil case related to her injuries and was awarded €12,000 but this has not been paid.” She goes on in the report to record that the plaintiff “…believes strongly that he does not have the right to…flout the decisions of the Court…” and in her second report she notes that “…compensation is still not paid…” and “She wants to have a formal apology from him, and fulfilment of the court directives (compensation) as otherwise, in her mind, justice has not been served and she will not achieve closure of this painful chapter in her life” and “While she is determined to see this matter through to its conclusion, it would be helpful to her for resolution to occur in as timely a manner as possible, with the already agreed restitution and compensation carried through.” However, Ms. O’Connell was very clear in her evidence that it was not at all significant to her report and conclusions that she believed that compensation had been awarded or agreed because the important point was that the plaintiff had not in fact received compensation, which is correct. It is important to note that this was just one of the factors which the plaintiff was complaining about to Ms. O’Connell and which are referred to by Ms. O’Connell. Thus, the point that was being made by Ms. O’Connell was that the “bad fact” was not significant in the sense of causing her to change her opinion.

61. The defendant also sought to cross-examine Ms. O’Connell in respect of communications between the child’s mother and the plaintiff prior to the incident. In discussion with the Court, the defendant contended that these were relevant to the question of how the plaintiff deals with conflict. I considered this line of cross-examination to be irrelevant to the issues which had to be decided.

62. The defendant also put to Ms. O’Connell that it was significant that the trespass prosecution was concluded in 2016 and that it was significant to Ms. O’Connell’s conclusions that the plaintiff did not tell her that at the consultation in 2023. Ms. O’Connell rejected this, saying that the significant issue is that from the plaintiff’s perspective the court processes were continuing. It will be recalled that the appeal against the conviction for assault causing harm was not determined in the Court of Appeal until 1st June 2017 and was not concluded until the Supreme Court made its determination on the 6 th July 2018. These proceedings obviously continued after that. Thus, as a matter of fact the court processes were continuing and have continued since 2012.

63. The defendant also cross-examined Ms. O’Connell in relation to the references in her reports to the defendant biting the plaintiff. He put to her that the plaintiff misled her because the defendant did not bite her and indeed the plaintiff had not claimed in her evidence that the defendant had bitten her. He put it to her that this is significant to her conclusions. Ms. O’Connell said that this does not make any difference to her conclusion. Importantly, it is clear that the plaintiff told Ms. O’Connell at the first assessment that the defendant tried to bite her and not that the defendant did in fact bite her as Ms. O’Connell in fact records in her first report that the plaintiff told her that the defendant tried to bite her.

64. Ms. O’Connell’s reports also record that the plaintiff complained to her about harassment and intimidation of the plaintiff and staff members by the defendant. It was put to Ms. O’Connell that her conclusion was flawed because the plaintiff had given no evidence in relation to this. Ms. O’Connell did not accept that her conclusion was flawed. She said the important point is that that is what she was told by the plaintiff and she operates on the basis of what she is told. She rejected the proposition that she should also have independently checked with the staff members. She later acknowledged that she did not know if she had got all the correct facts and the defendant put it to her that this meant her report is deficient. She did not accept that.

65. I agree with Ms. O’Connell that she can form her conclusions on the basis of what she is told by a client and does not have to independently verify what she is told. However, it naturally follows that if what she is told is incorrect, then that may undermine her opinion if the information which is incorrect is material to that opinion. However, the facts must be shown to be incorrect and to be material to the opinion. Ms. O’Connell gave very clear evidence that the facts in her reports which are incorrect are not material to her opinion. If the defendant wanted to establish otherwise, e.g., to show that Ms. O’Connell was wrong in relation to the materiality of certain facts or in her methodology, it was for the defendant to call an expert to give evidence to that effect.

66. I do not accept as a general proposition that if a plaintiff tells an expert something but does not give that in evidence that it means the expert’s conclusion is flawed. It simply means that the court does not have any evidence of that thing and can not simply rely on what the plaintiff is recorded as having told the expert or any conclusion based on that. Perhaps more importantly, the plaintiff did refer to harassment and intimidation. This was partly in the form of telephone calls and emails from the defendant. The defendant accepted that he was contacting the plaintiff by email up to July 2012 when the contacts ceased following a solicitor’s letter.

67. The defendant also impugned Ms. O’Connell’s report on the basis that while Ms. O’Connell recorded that the plaintiff was worried about the threat to her family and to staff members, Ms. O’Connell did not include any examples of such threat and did not independently check this with members of the plaintiff’s family and staff. Ms. O’Connell did not recall whether the plaintiff gave any specific examples but said that it would not be normal practice to include examples, though she may do it on occasions. She also rejected the suggestion that she should have carried out independent checks. There was no evidence to the contrary in relation to normal practice. It is also important to note two matters. Firstly, the reports refers to “threat” rather than “threats” and Ms. O’Connell clarified during the course of the hearing that she should probably should have used “sense of threat”. Secondly, it is also important to note that the defendant accepted during the hearing that he reattended at the crèche and that he made phone calls and sent emails following the assault, though he said these ceased in about June/July 2012.

68. The defendant asked Ms. O’Connell who normally makes a diagnosis of Post- Traumatic Stress Disorder and Ms. O’Connell said psychologists or psychiatrists.

69. The defendant summarised by putting it to Ms. O’Connell that her report was deficient because she destroyed documents and there was no need to destroy them, she was operating on the basis of bad facts, and that due to her destruction of the documents no other psychologist could check her 2015 assessment. I have addressed each of these points other than the final one. It is, of course, correct as a matter of fact that the shredding of the original documents means that another expert can not check the 2015 assessment or provide their own assessment (as of 2015) based on the original notes. However, the significance of this is completely undermined by the fact that the defendant did not have, or even seek to have, the plaintiff examined by an expert and did not seek to have an expert check Ms. O’Connell’s 2015 assessment or to provide their own assessment of the position in 2015 based on the original documents.

70. I accept the plaintiff’s evidence in respect of her injuries and am also satisfied that Ms. O’Connell’s reports and evidence are an accurate account of the plaintiff’s psychological injuries.

THE SECTION 26 APPLICATION

71. At the conclusion of the hearing, the defendant made an application pursuant to section 26 of the Civil Liability and Courts Act 2004 to dismiss the plaintiff’s claim on the basis that she had given false or misleading evidence.

72. Section 26 provides, inter alia:

“(1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that –

(a) is false or misleading, in any material respect, and

(b) he or she knows to be false or misleading,

The court shall dismiss the plaintiff’s action unless, for reasons that the court shall state in its

decision, the dismissal of the action would result in injustice being done.

(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that –

(a) is false or misleading in any material respect, and that he or she knew to be false or misleading when swearing the affidavit, dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.

(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court…”

73. The bases for the defendant’s contention that the plaintiff gave false and misleading evidence are really the matters discussed above. In summary, they are as follows. The plaintiff confirmed in cross-examination that she accepted the accuracy of Ms. O’Connell’s report. However, that report recorded that the plaintiff had told Ms. O’Connell that an award of €12,000 had been made in favour of the plaintiff and the defendant was refusing to pay it. Such an award had not in fact been made. The report also recorded that the plaintiff told Ms. O’Connell that she, her family and staff had been the subject of ongoing threats and harassment but the plaintiff did not introduce any emails or phone calls into evidence. Furthermore, the plaintiff did not correct Ms. O’Connell between the date of her first report and her second report and the second report also referred to threats and harassment and the fact that the defendant had not paid compensation. The defendant also relies on the fact that the plaintiff “added in a new falsehood of having been bitten on the face which caused her to relive a psychological trauma.” Finally, the defendant contends that the Updated Particulars of Personal Injury were largely taken from Ms. O’Connell’s second report and the plaintiff swore an affidavit of verification in respect of the Updated Particulars. He also relied on the allegation that he had broken into the crèche on the 26th March 2012.

74. The defendant referred me to Noonan J’s judgment in Keating v Mulligan [2022] IECA 257. Noonan J stated at paragraph 27 of his judgment:

“27. Section 26 has most recently been considered by this court in O’Sullivan v Brozda & Ors.

[2022] IECA 163 in a judgment of Collins J. with which the other members of the court agreed.

In the course of his judgment, Collins J. considers most of the authorities to which we were referred in the course of this appeal and carries out a very comprehensive and helpful analysis of those authorities. The following passages from the judgment are of relevance in this appeal:

“So far as appears to me, the following are the main points to emerge from the terms of section 26 itself and the authorities which have addressed it:

• The onus of establishing that evidence given in an action and/or in a section 14 affidavit is “false and misleading in any material respect” is on the defendant. The requirement of materiality appears to have two aspects. First, the evidence at issue must be material to the claim advanced (as to which see Nolan v O' Neill, at para 43, citing the observations of Fennelly J for the Supreme Court in Goodwin v Bus Éireann [2012] IESC 9, at para 62 of his judgment).… Second, the evidence must be false and misleading to a material degree. That does not mean that a defendant must establish that the entirety of the claim is false or misleading in order to succeed (Nolan, para 44) but the false or misleading evidence must nonetheless “be sufficiently substantial or significant in the context of a claim that it can be said to render the claim itself fraudulent” (Nolan, at para 43, again citing the judgment of Fennelly J in Goodwin).

• Similarly, the onus of establishing that the plaintiff knew that the evidence given and/or that any section 14 affidavit sworn was false or misleading is on the defendant. The test of knowledge in this context is subjective: Ahern v Bus Éireann [2011] IESC 44, per Denham CJ at para 34. Actual, rather than constructive, knowledge/dishonesty must therefore be established. Where section 26(2) is relied on, the defendant “must establish, on the balance of probabilities, that the plaintiff swore a verifying affidavit knowing it to be false or misleading in a material respect” (McLaughlin, at para 33)

• Where those two threshold requirements are established, the court is obliged to dismiss the action unless doing so “would result in injustice being done”. Section 26 does not allow the court to excise from the claim only that part or those parts that have been contaminated by the false or misleading evidence. As Irvine J put it in Platt, the court “cannot proceed to award damages for that part of a claim which is not infected by the misleading evidence. The legitimate parts of the claim cannot survive” (para 74, citing Ryan J in Meehan v BKNS Curtain Walling Systems Ltd [2012] IEHC 441, at page 13).

• That being so, it is unsurprising that section 26 has been described as “draconian” (per Peart J in Carmello v Casey [2007] IEHC 362, [2008] 3 IR 524, at para 57; Nolan, at para 35).

• In light of the significant adverse consequences for a plaintiff of the making of an order under section 26, both in terms of the potential loss of a legitimate claim for damages arising from injury sustained in an accident caused by the negligence of the defendant and the reputational impact of a finding that the plaintiff knowingly gave false or misleading evidence (in essence, a finding of civil fraud), the threshold requirements must be clearly established. The applicant “undertakes a significant burden of proof ” (per Quirke J in Farrell v Dublin Bus [2010] IEHC 327, at page 6) and, while the standard of proof is the civil standard of the balance of probabilities, the application of that standard should “be proportionate to the nature and gravity of the issue to be investigated” (ibid, citing Georgopoulos v Beaumont Hospital Board [1998] 3 IR 132, per Hamilton CJ at 149– 150). Accordingly, the defendant must discharge the onus of “proving, as a matter of high probability, that the evidence which has been given or adduced by the plaintiff has been false or misleading in a material respect” (ibid). The analysis in Farrell was referred to with evident approval by Irvine J in Nolan. In her view, it led to the conclusion that the trial judge “should be absolutely satisfied in his or her own mind that the defendant has discharged the requisite burden of proof” before making a section 26 order (Nolan, at para 42). …

• Just as the court should be careful and cautious about making a section 26 order, defendants ought to exercise caution in seeking such an order. “It behoves defendants to use prudent discernment before taking the very serious step of making a s. 26 application” (per O’Neill J in Smith v Health Service Executive [2013] IECA 360, at para 92). Section

26 is there to deter and disallow fraudulent claims. It “should not be seen as an opportunity to prey on the frailty of human recollection or the accidental mishaps that so often occur in the process of litigation, to enable a concoction of error to be assembled so as to mount an attack on a worthy plaintiff in order to deprive that plaintiff of the award of compensation to which they are rightly entitled” (per O’Neill J in Smith v HSE, at para 92, cited with approval in f, at para 67). …”

75. Noonan J also noted at paragraph 28 that Collins J had concluded in O’Sullivan v Brozda, following a consideration of the facts of a number of cases in which courts made section 26 Orders, that in “all of those cases…the plaintiff was found to have engaged in a calculated and conscious attempt to advance a dishonest claim. In each, it could properly be said that the point had clearly been reached “where dishonesty in the prosecution of a claim can amount to an abuse of the judicial process as well as an attempt to impose upon the other party” (per Hardiman J in Vesey v Bus Éireann [2001] 4 IR 192, at page 202)”.

76. The matters raised by the defendant are a long way from satisfying the burden which is on a defendant in a section 26 application, as set out in those authorities.

77. For the reasons set out above at paragraphs 38-42 and 57-69, I am not satisfied that the plaintiff gave evidence which she knew to be false and misleading or caused to be adduced evidence she knew to be false and misleading.

78. Firstly, I am not satisfied that the plaintiff told Ms. O’Connell that she had been awarded €12,000 or any compensation. It seems to me that this is most likely to have been a miscommunication or misunderstanding.

79. Secondly, I am not satisfied that she told Ms. O’Connell that the defendant had bitten her. In fact, Ms. O’Connell records the plaintiff as telling her at the first assessment that the defendant had tried to bite her.

80. It is not at all unusual for there to be misunderstandings or miscommunications which then appear in expert reports. These two matters are precisely the types of things that O’Neill J was warning against when he said that section 26 “should not be seen as an opportunity to prey on the frailty of human recollection or the accidental mishaps that so often occur in the process of litigation, to enable a concoction of error to be assembled so as to mount an attack on a worthy plaintiff in order to deprive that plaintiff of the award of compensation to which they are rightly entitled.” Of course, there is an obligation on a litigant to correct such errors when they occur but a failure to do so can not automatically lead to a conclusion that the litigant is dishonest.

81. Thirdly, I am not satisfied that the plaintiff knowingly gave false or misleading evidence in respect of the defendant’s entry to the crèche on the 26 th March 2012. As discussed above, the defendant tried to input a pin-code three times and was observed doing so before gaining entry. He said in evidence that he managed to get in because it transpired that the door was in fact already open. Even if this is correct, it does not mean that the evidence was knowingly false or misleading. The plaintiff had instructed the defendant not to come into the crèche and had then observed him trying to operate the key-pad to gain entry.

82. Finally, the suggestion that telling Ms. O’Connell of an ongoing threat and harassment and then not giving evidence of same at the hearing constitutes the giving of evidence knowing it to be false or misleading is incorrect. If a plaintiff tells an expert something and then does not give the necessary evidence at the hearing, it does not necessarily mean that what he or she told the expert was false or misleading. What it means is that there is no evidence of that thing before the court. More importantly, the plaintiff did in fact give evidence of a threat or harassment (albeit in answer to the defendant’s own questions) by way of emails and phone calls and the defendant admitted to sending such emails up to July 2012.

83. I am entirely satisfied that the defendant has failed to establish that the plaintiff knowingly gave false and misleading evidence or caused to be adduced false or misleading evidence, or swore a false and misleading affidavit of verification and I therefore refuse the defendant’s application under section 26 of the 2004 Act.

APPROACH TO ASSESSMENT OF DAMAGES

84. Both parties addressed me in relation to the proper approach to the assessment of damages.

Proportionality

85. The overarching principle in relation to damages is that they must be proportionate. In MN v SM [2005] 4 IR 461 at 474, the Supreme Court commented as follows in relation to compensation:

“An award of damages must be proportionate. An award of damages must be fair to the plaintiff and must also be fair to the defendant. An award should be proportionate to social conditions, bearing in mind the common good. It should also be proportionate within the legal scheme of awards made for other personal injuries. Thus the three elements, fairness to the plaintiff, fairness to the defendant and proportionality to the general scheme of damages awarded by a court, fall to be balanced, weighed and determined…in assessing the injury suffered by the plaintiff, it is relevant to consider the actions of the defendant and, in particular, his early admission, early plea and apology in that they helped to alleviate the suffering of the plaintiff.”

Trespass to the person

86. In Alseran v MRE [2017] EWHC 3289 at paragraphs 875-890, the English Court of Appeal identified three types of loss recoverable under English law in respect of trespass to the person:

“876. First of all, where a person is a victim of an assault or false imprisonment, the wrong itself – that is to say, the interference with the claimant’s bodily integrity or liberty – is an injury for which the claimant is entitled to be compensated in English law whether or not the interference has resulted in any ‘actual harm’ to the claimant. As Lord Rodger said in Ashley v Chief Constable of Sussex Police [2008] AC 962 at para 60: ‘battery or trespass to the person is actionable without proof that the victim has suffered anything other than the infringement of his right to bodily integrity.’ See also Watkins v Secretary of State for Home Department [2006] 2 AC 395, para 68. Likewise it is well established that loss of liberty is itself an injury for which a claimant is entitled to be compensated apart from any damage which has resulted from the loss of liberty: see e.g. R v Governor of Brockhill Prison, ex p Evans (No 2) [1990] QB 1043, 1060. This kind of injury which is inherent in the wrong itself is often referred to as ‘moral injury’.

877. Second, an assault or false imprisonment may cause identifiable physical or psychiatric injury. In such circumstances damages are awarded in English law for what is conventionally referred to as ‘pain and suffering’ and any loss of amenity.

878. A third kind of injury is injury to feelings. This includes the distress, misery, humiliation, anger and indignation that such a tort may cause. The distinction between this kind of injury and what I am calling ‘psychiatric injury’ is that psychiatric injury refers to a recognised medical condition (such as clinical depression or post-traumatic stress disorder) whereas injury to feelings refers to mental suffering which does not amount to such a medical condition. Each of these types of injury is a separate head of damage but in awarding damages where both are suffered it is obviously important to avoid double counting.

879. Fourth, English law recognises that injury to the feelings of the victim of an assault or false imprisonment may be increased by the defendant’s motivation in committing the tort if the defendant shows particular malice towards the victim, or by other particularly egregious features of the defendant’s conduct in committing the tort or subsequent behaviour towards the victim: see Rookes v Barnard (No 1) [1964] 1129, 1221; and the report of the Law Commission on ‘Aggravated, Exemplary and Restitutionary Damages’ (September 1997), pp 10-11, paras 1.1 and 1.4. As already mentioned, the damages which, in English law, may be awarded for such additional injury to feelings are referred to as ‘aggravated damages’. Such damages, which are intended solely to compensate the claimant, must not be confused with ‘exemplary’ or ‘punitive’ damages, which in certain exceptional circumstances may only be awarded in English law in order to punish or make an example of the defendant.

880. A fifth kind of injury which may be suffered is financial loss – consisting, for example, of the cost of medical treatment or loss of earnings if the assault or false imprisonment prevents the claimant from working.”

87. I am satisfied that this reflects the general position in Irish law.

Aggravated damages

88. As noted in Alseran, a court may also award aggravated damages in certain circumstances. These must be distinguished from exemplary or punitive damages. The purpose of aggravated damages is to properly compensate the plaintiff in the particular circumstances of the case rather than to punish the defendant (aggravated damages are described by Culleton in “The Law Relating to Aggravated Damages” [2020] Irish Judicial Studies Journal Vol. 4(2) as a sub-category of compensatory damages). Finlay C.J said in Conway v Irish National Teachers Organisation [1991] 2 IR 305 at 317:

“…In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case. They are:-

1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.

2. Aggravated damages, being compensatory damages increased by reason of:

a. the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or b. the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or c. the conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.

Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages, must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.

3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered…”

89. Ordinarily, a court will be reluctant to make an award of aggravated damages against a defendant who merely seeks to put the plaintiff of proof of their case. However, in certain circumstances, the court may do so. For example, in O’Donnell v O’Donnell [2005] IEHC 216, a claim for damages for sexual abuse, Kelly J said “the maintenance of a denial of liability is not an abuse of the process of the court. A defendant is entitled to require a plaintiff to prove his case.” However, in that case the defendant instructed his solicitor to threaten to sue the plaintiff and Kelly J went on to award aggravated damages for the attempt to intimidate the plaintiff. Kelly noted that the court in Noctor v Ireland [2005] 1 IR 433 had endorsed a passage from the English case of Sutcliffe v Pressdram Ltd [1991] 1 QB 153 in which Nourse LJ identified the type of conduct in defence of an action which would warrant an award of aggravated damages, including:

“conduct calculated to deter the plaintiff from proceeding; persistence, by way of a prolonged or hostile cross-examination of the plaintiff or in turgid speeches to the jury; a plea of justification which is bound to fail; the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract further wide publicity; and persecution of the plaintiff by other means.”

90. In Kinsella v Kenmare Resources plc [2019] IECA 54, Irvine J noted at paragraph

236 that:

“In coming to my conclusion in relation to the award made in respect of aggravated damages, I also have to the forefront of my mind the fact that the purpose of an award of aggravated damages is to compensate a plaintiff for some additional injury perpetrated beyond the libel the subject matter of the proceedings. In this context, whilst Mr. Kinsella was clearly upset about the fact that he had been accused of fabricating the conversation between himself and Ms. Corcoran, the additional upset caused by that challenge could not have inflicted upon him an injury of the type or magnitude that would have warranted the award of an additional sum by way of aggravated damages. There are few witnesses who leave a witness box unchallenged as to the truth of their evidence or who do not feel somewhat bruised and upset as a result of the oftentimes hard-hitting consequences of an adversarial system of litigation.”

91. Thus, aggravated damages are not readily awarded simply because of a difficult cross-examination, provided there is a reasonable basis for it. Cross J in O’Sullivan v Depuy International Ltd [2016] IEHC 684 indicated the conduct of a defendant including, for example, the making of baseless or reckless allegations against the plaintiff or a witness might attract an award of aggravated damages (to act as a counterweight to the provisions of section 26 of the Civil Liability and Courts Act 2004)

92. In LO’K v LH [2006] IEHC 393, deValera J said:

“among the matters which I should take into consideration when considering aggravated damages is the manner in which the wrong was committed, the conduct of the wrongdoer after the commission of the offence and the conduct of the wrongdoer in the defence of the action up to and including the trial of the action. In this matter the first defendant has refused to take any part in the trial and I am satisfied that I am entitled to take this into consideration as well as his behaviour at the criminal trial which was the ‘trigger’ for [the plaintiff] in initiating this action.”

93. The conduct of the plaintiff is also relevant to the decision as to whether or not aggravated damages should be awarded. For example, in Smith v Gilbert [2005] IEHC 275 (referred to by Culleton, page 19) a plaintiff sought aggravated damages because of the way their loss of earnings claim had been challenged, but that claim was supported by “a mass of half illegible invoices of dubious accuracy” which had caused frustration to the defence and the court and Budd J therefore refused the application for aggravated damages.

94. The defendant disputed the plaintiff’s entitlement to any aggravated damages partly on the basis that there is no express claim for aggravated damages in the pleadings. He did accept that a court could award such damages in respect of matters which arose after the delivery of the Personal Injury Summons, such as during preliminary proceedings or at the trial, even where there is no specific express claim for aggravated damages contained in the summons. I have to confess that my initial reaction to the submission that there had to be an express claim for aggravated damages was that it was misplaced. Aggravated damages are compensatory damages and, therefore, provided damages are sought and the factual basis upon which aggravated damages might be awarded is clearly pleaded, it seemed to me that aggravated damages could be awarded notwithstanding that they are not expressly sought. However, this was addressed by Finlay CJ in Conway v Irish National Teachers Organisation where he held that the claim for aggravated damages must be specifically pleaded. There is a slight caveat to this in that Finlay CJ was in fact dealing with a claim for punitive or exemplary damages and therefore his comments in respect of aggravated damages are, strictly speaking, obiter. Nonetheless, it seems to me that it is a very clear statement which I should follow. Finlay CJ said at page 321:

“First principles would appear to suggest that the general purpose of pleading, as far as the plaintiff is concerned, is the giving of fair notice to the defendant of the issues which are to be tried and the allegations which are to be made against him and this would make it desirable that any claim being made for damages over and above ordinary compensatory damages should be notified, and the facts upon which reliance might be placed in support of it, should be indicated to the defendant. To such a general principle there would, of course, be exceptions: for example, in relation to aggravated damages in respect of matters which might only arise at the trial or at a stage of the preliminary proceedings subsequent to the filing of the statement of claim, but in general there would appear to be no sound principle for excluding from the general proposition that the claim should fairly make known to the defendant the question of a reliance or proposed reliance upon a right to exemplary damages”

Book of Quantum and the Personal Injuries Guidelines

95. The plaintiff submitted that the Book of Quantum does not apply because the claim is one of trespass to the person rather than a personal injury action. (Counsel explained that an application was made to PIAB and the proceedings were issued by way of Personal Injury Summons out of an abundance of caution). I do not have to resolve this question because counsel for the plaintiff nonetheless referred the Court to the Book of Quantum and accepted that I could have regard to it for assistance in relation to the plaintiff’s physical injuries as an assistance.

96. The defendant submitted that the Court is bound to apply the Personal Injuries Guidelines. I am satisfied that this is not the case. Section 22 of the Civil Liability and Courts Act 2004, as amended, provides as follows:

“22. (1) Subject to section 100 of the Act of 2019 and subsection (1A)(b), the court shall, in assessing damages in a personal injuries action commenced on or after the date on which section 99 of that Act comes into operation—

(a) have regard to the personal injuries guidelines (within the meaning of that Act) in force, and

(b) where it departs from those guidelines, state the reasons for such departure in giving its decision.

(1A) The court shall have regard to the Book of Quantum in assessing damages in a personal injuries action where the action is commenced—

(a) before the date on which section 99 of the Act of 2019 comes into operation, or

(b) on or after the date on which that section comes into operation in relation to a relevant claim where—

(i) an assessment was made under section 20 of the Act of 2003 in relation to that claim before the date of such coming into operation, and

(ii) that assessment was not, or was deemed not to have been, accepted in accordance with that Act.

(2) Subsection (1A) shall not operate to prohibit a court from having regard to matters other than the Book of Quantum when assessing damages in a personal injuries action to which that subsection applies…”

97. Thus, the Court is only bound to have regard to the Personal Injuries Guidelines in actions which were commenced prior to the 24 th April 2021. These proceedings were commenced in 2013. The defendant relied on paragraphs 28 to 35 of Charleton J’s judgment in Delaney v The Personal Injuries Assessment Board & Ors [2024] IESC 10 to submit that the Court is bound to apply the Guidelines when the date of assessment, i.e. the date of the hearing, is after the commencement of the Guidelines. I do not accept that this is the effect of Charleton J’s judgment.

98. I was in any event, referred to the section in the Personal Injuries Guidelines dealing with Post-Traumatic Stress Disorder by the parties, including by the plaintiff.

Summary

99. It follows, therefore, that my general approach to the assessment of damages must be as follows: the plaintiff is entitled to damages by reason of the trespass to her person; she is also entitled to damages for any physical and psychological injury or financial loss caused to her by the assault; I can not consider aggravated damages arising from the incident itself or events following the assault because there is no specific claim for aggravated damages (though it is important to note that where factors which may have given rise to aggravated damages contributed to the plaintiff’s injuries they are in any event to be taken into account in the assessment of ordinary compensatory damages); I can consider aggravated damages arising from the manner in which the defence was run (the defendant accepts that I am entitled to do so); I can have regard to the Book of Quantum in respect of the plaintiff’s physical injuries; and I am not bound to apply the Personal Injuries Guidelines.

QUANTUM

General Damages

100. The plaintiff is entitled to damages for the trespass to her person irrespective of injury. However, it is important not to double-count. Thus, it seems to me that the most appropriate way to calculate damages, in circumstances where the plaintiff suffered injury in the assault, is to assess the appropriate compensation for those injuries whilst also having regard to the fact that the plaintiff is entitled to damages for the “moral injury” of the assault.

101. I have set out the plaintiff’s injuries at paragraphs 43-53. The plaintiff was sixty years of age when this assault happened. It occurred in her place of work while she was carrying out her duties to care for a child. Whether or not the instruction from the child’s mother was correct or incorrect and whether or not the defendant had an entitlement to take the child, it is absolutely unacceptable that he would assault the plaintiff in those circumstances. It must have been a shocking and distressing event for the plaintiff.

102. As a result of the assault, the plaintiff suffered a cut on her nose, a deviated septum (as noted by Edwards J in DPP v MW (paragraph 111), a broken nose is a layman’s term) which had to be corrected under general anaesthetic, and bruising to her face and arm. In all she was out of work for fourteen days due to the injuries. She continues to have some difficulties with her nose (including sensitivity to cold and some breathing issues which can wake her up at night) but she did not make very much of these and I think it is fair to say that they are residual. Cosmetically, there was nothing particularly striking to the Court and, again, the plaintiff did not make very much of it, but she did say that her nose was not quite right but that it was good enough.

103. The more significant injury is the psychological injury. This is described in greater detail above. Irrespective of whether the plaintiff suffered Post-Traumatic Stress Disorder, she clearly suffered a psychological injury. In any event, the evidence is that in 2015, the plaintiff was assessed as scoring in the moderate range of Post-Traumatic Stress Disorder and in 2023, eleven years post-incident, she scored on the borderline between mild and moderate Post-Traumatic Stress Disorder. The symptoms and how this affects the plaintiff are set out in Ms. O’Connell’s report and in the plaintiff’s evidence and are considered above. A prognosis was not given but it seems to me to follow from the importance placed on the various ongoing court proceedings and the triggering nature of these that as the proceedings come to an end the PTSD will likely abate. I am therefore assessing damages on the basis that the plaintiff will have suffered fourteen years moderate to mild PTSD. The plaintiff did not seek counselling, which was suggested by Ms. O’Connell. She described herself as being through a lot in life and preferred to deal with matters herself. I have had regard to the fact that counselling may have helped her recover from the psychological symptoms more fully described earlier in this judgment.

104. It is clear from the plaintiff’s own evidence and the evidence of Ms. O’Connell that this aspect of her injuries has been exacerbated by the defendant’s re-attendance at the crèche on the 26th March 2012 (whether or not that was a trespass), and her involvement, through no fault of her own, in a series of court proceedings. This latter feature has exacerbated her difficulties and prolonged her recovery. The case was made that the plaintiff was harassed, intimidated and distressed by the manner in which the defendant conducted himself when questioning the plaintiff in court in these other proceedings. However, there was no specific evidence given upon which I could conclude that the defendant misconducted himself in those proceedings. Thus, it seems to me that while the fact of the plaintiff being dragged into court proceedings due to the behaviour of the defendant is relevant to the assessment of damages, I can not have regard to the general allegations in relation to how he conducted himself in those proceedings.

105. It is well-established at this stage that where a plaintiff suffers from more than one injury the court may not simply add the appropriate amount of damages in respect of each of the injuries to arrive at a total award but rather should assess the damages for the dominant injury and add an uplift to reflect the other injury. In this case the main injury is the psychological injury.

106. As noted above, the Post-Traumatic Stress Disorder and its symptoms abated from moderate in 2015 to borderline mild-moderate in 2023. In those circumstances, it seems to me that the appropriate level of general damages for this element of the plaintiff’s injuries is €30,000 on the basis that it is likely to abate further. It seems to me that this would be the appropriate amount if I applied the Personal Injuries Guidelines. The injury does not fit neatly within any of the categories in the Personal Injuries Guidelines, but it seems to me to most closely approximate to the category of Moderate PTSD, with the qualification that this category refers to the injured person having largely recovered. The range of compensation provided for is €10,000 – €35,000. In circumstances where the plaintiff has not recovered, it seems to me that the injury is reflected in the higher end of the category but there must be some reduction for the fact that the plaintiff did not seek counselling.

107. The plaintiff required surgery under a general anaesthetic for her nasal injury and has been left with some residual difficulties and very minor cosmetic effects but, apart from these minor ongoing effects, the plaintiff largely recovered within a number of weeks or months, though had to undergo surgery and for a period of time suffered pain and bruising. She also suffered bruising to her arm. If I were to treat this as a separate injury it would seem to me that it would attract an award of approximately €22,000 (straddling the minor and moderate categories in the Book of Quantum). However, as discussed above, this must be dealt with by way of an uplift on the damages for the dominant injury. The appropriate uplift is €10,000.

Aggravated damages

108. I have already addressed the question of aggravated damages in circumstances where they have not been specifically claimed. I do not feel able to award such damages in respect of events other than events arising from the manner in which the proceedings were run by the defendant.

109. I am satisfied that the plaintiff is entitled to aggravated damages in respect of certain features of how the case was run by the defendant. I am of this view for the following reasons.

110. As discussed at length earlier in this judgment, the defendant sought to have this appeal dealt with as though it was a full appeal rather than an assessment of damages. While I held that this position was misplaced, I do not believe that it in itself can give rise to aggravated damages. As noted in Kinsella v Kenmare Resources, “the purpose of an award of aggravated damages is to compensate a plaintiff for some additional injury perpetrated beyond the [wrong] the subject matter of the proceedings.” In that case, Irvine J held that whilst the plaintiff was clearly upset about that fact that he had been accused of fabricating a particular conversation “the additional upset caused by that challenge could not have inflicted upon him an injury of the type or magnitude that would have warranted the award of an additional sum by way of aggravated damages.” In my view, while the defendant’s submission that the appeal should be dealt with as a full appeal took additional time and may have caused the plaintiff some upset at the thought that she might have to revisit the entire matter, that is not sufficient to have caused the type of additional injury as to attract aggravated compensatory damages. The Court has to be careful that aggravated damages are not an automatic consequence of the exercise of a litigant’s rights, particularly in an adversarial system of justice. Furthermore, in circumstances where I ruled that, even where the appeal must proceed as an assessment only, the defendant would be entitled to cross-examine the plaintiff in respect of the assault because that might go to the question of damages, the plaintiff did not suffer any additional injury from the thought of having to revisit the assault brought about by the defendant’s application.

111. I am not satisfied that the nature and tone of the defendant’s cross-examination was such that I should award aggravated damages to the plaintiff. There is no doubt that the defendant in certain respects approached the bounds of when a court should do so. He impugned the plaintiff’s credibility, he was at times disrespectful, and he sought to cross-examine her on matters which I ruled were not relevant to the issue which had to be decided. However, I am not satisfied that these, either taken separately or cumulatively, were of such seriousness that aggravated damages should be awarded.

112. I am, however, satisfied that it is appropriate to award aggravated damages arising from two aspects of how the defendant ran the case.

113. Firstly, as already discussed, the defendant impugned the expert called on behalf of the plaintiff. He impugned her conclusions, but more importantly, for the current discussion, he impugned her methodology and, therefore, her competence and professionalism. In doing so, he also challenged the plaintiff’s honesty. It must be emphasised that expert witnesses can be and must expect to be cross-examined rigorously. However, where there is a challenge to an expert’s methodology and professionalism there must be an evidential basis for same. The defendant did not call any evidence to suggest that how Ms. O’Connell approached her task was wrong. Most seriously, the defendant repeatedly referred to Ms. O’Connell’s destruction of the original documents. Of course, the fact that the original documents were not available was relevant. However, the clear import of the defendant’s cross-examination was that Ms. O’Connell had improperly destroyed them. At one stage, he referred to Ms. O’Connell as being someone who “destroyed evidence.” I accept that this might have been slightly careless use of language, and the defendant clarified that he meant that she destroyed documents (rather than evidence) but it did reflect the defendant’s overall approach to this issue. In submissions, he referred to her as having destroyed the records “without good cause”. Ms. O’Connell gave clear evidence as to why she destroyed the documents and that it was in accordance with her normal practice. Unless the defendant could say that this was not acceptable practice or that the destruction of the documents was otherwise wrongful, Ms. O’Connell should not have been subject to such comments or challenged on the basis that she had acted improperly.

114. The second feature of how the defence was run which gives rise to aggravated damages is the defendant’s application pursuant to section 26 of the 2004 Act.

115. In Keating v Mulligan, Noonan J noted Collins J’s observations at paragraph 70 and

74 of O’Sullivan v Brozda & Ors:

“70. It is important that courts should have the power to dismiss fraudulent personal injuries actions. Such actions amount to an abuse of the court process and also impose significant societal costs. But it is equally important that there should be a high threshold for exercising that power. The proofs required are identified in section 26 and have been explained in the authorities. The authorities emphasise that a court should be careful and cautious about making an order under that section. The authorities also counsel caution on the part of defendants in invoking it.

…

74. No issue of aggravated damages arises on this appeal. But defendants should be mindful that, where an application for a section 26 order is made without any proper basis, the court may consider it appropriate to mark its disapproval by an award of aggravated damages. If the risk of such an award being made serves to deter the making of marginal applications, that is no bad thing.”

116. Noonan J also accepted that an award of aggravated damages may be an appropriate response where a section 26 application is made and fails (see also Lackey v Kavanagh [2013] IEHC 341, Waliszewski v McArthur & Company Limited [2015] IEHC 264). Noonan J referred to his decision in Daly v HSE [2014] IEHC 560 in which he said:

“[Section 26] was introduced into law not long after the decision of the Supreme Court in Shelley-Morris and, as noted above, acts as a very major ‘nuclear’ deterrent to the mounting of fraudulent and exaggerated claims. It undoubtedly confers litigation advantage on defendants and has long been complained of by plaintiffs’ lawyers as violating the principle of ‘equality of arms’ in personal injury litigation. However, the recent jurisprudence of this court reveals an emerging trend towards a more level playing field by the threat of sanctioning defendants who invoke the section without just cause by way of aggravated or punitive damages.”

117. He also made it clear that it is by no means axiomatic that the making of a failed section 26 application should result in an award of aggravated damages in favour of a plaintiff. He had previously said in Browne v Van Geene [2020] IECA 253 (paragraph 108) that “Although some of the judicial comments to which I have referred rightly deprecate the unwarranted and speculative use of s.26 which, in an appropriate case, may result in an award of aggravated damages, in this case there is no question of such considerations arising.” In that case, both the trial judge and Noonan J were of the view that the section

26 application was not without substance and was certainly an application that the respondents were entitled to make.

118. As discussed above, the defendant’s application in this case fell a long way short of satisfying the requirements of section 26. In my view, there was no merit to the application and it should not have been made. The application in this case must also be seen in the context of the defendant already having been convicted of assault causing harm.

119. For those two reasons, I am satisfied that an award of €6500 in aggravated damages should be made.

Special Damages

120. The plaintiff claims €60.00 consultation fee with her GP and €250.00 fee for a consultation with Professor Curran. These were vouched and the defendant accepted the vouching.

121. She also claimed an X-ray fee of €180.00 which the defendant also accepted was correctly vouched. However, he submitted that the plaintiff should only recover 50% of that fee because the voucher on its face records that the X-rays were of the plaintiff’s hip, knee and nasal bones and the first two were a separate issue. I accept that.

122. The plaintiff also claimed €2336.92 in respect of the installation of security equipment at the crèche and the plaintiff’s home. However, the invoice for these works was to the company which owned the crèche and it seems to me that the plaintiff is therefore not entitled to recover that amount. This was as much as accepted by counsel for the plaintiff. It is a similar position in respect of a bill for the resetting of the code on the key pad in the crèche.

123. The plaintiff also claimed loss of earnings for sick days in the amount of €4096. This was calculated on the basis of the plaintiff being absent for seven days from the 5 th January to the 16th January 2012, seven days from the 26th January to the 6th February and three separate half days on the 12th January, 20th January and 8th June 2012 to attend for x-rays and with Professor Curran respectively. The plaintiff explained that while most of these losses were in January and February, the business only deducted the wages in July because this is a time of year when the business’ revenue stream is down. The plaintiff also claimed for attendance as a witness at family law proceedings on two separate days. In my view, the plaintiff is not entitled to this latter item as it was a matter for the relevant court to deal with witness expenses. She is entitled to the other items. I therefore calculate this amount at fifteen and a half days at €256 per day (the figure given by the plaintiff). The total is €3968.

CONCLUSION

124. I will therefore make an award of €50,868 (€46,500 for general damages (including aggravated damages) and €4368 for special damages) in favour of the plaintiff.

125. As this judgment is being delivered electronically I will indicate that my provisional view in respect of costs is that the plaintiff is entitled to her costs notwithstanding that the award is less than the award in the Circuit Court. This is so in circumstances where the defendant ran the appeal on the basis that the plaintiff should not obtain any damages, including bringing an application under section 26 of the 2004 Act, but the plaintiff established her entitlement to an award. This is my provisional view and I will give the parties an opportunity to make submissions in writing in respect the question of costs if they so wish. Any such submissions must be made in writing (limited to 2000 words) within twenty-one days of delivery of this judgment. If no such submissions are made within that time I will make an Order for the plaintiff’s costs.