High Court awards damages for personal injuries, applying guidelines and assessing global proportionality.

THE HIGH COURT

[2025] IEHC 757

[Record No. 2022/1910 P]

BETWEEN

JOSEPHINE HIGGINS

PLAINTIFF

AND

RICHARD COLEMAN

AND

MOTOR INSURERS’ BUREAU OF IRELAND

DEFENDANTS

APPROVED JUDGMENT delivered by Mr. Justice Micheál P. O’Higgins on 15th December 2025

Introduction

1. This is a claim for damages for personal injuries arising from an incident on Main Street, Carrigtwohill, County Cork on 13th February 2020. The plaintiff claims that she was struck by the first defendant’s van. This is disputed by the first defendant, Mr. Coleman, who denies liability and also raises issues of causation, remoteness of damage and admissibility of expert evidence.

2. I heard the case over five days in the personal injuries sessions in Cork in May 2025.

3. I propose to divide my judgment into the following sections:

(a) List of witnesses;

(b) Evidence on liability and findings of fact;

(c) Summary of the plaintiff’s injuries;

(d) Claim for loss of earnings;

(e) Admissibility of the accountancy expert’s report;

(f) Application of the Guidelines to the plaintiff’s injuries;

(g) Conclusion.

(a) List of witnesses

4. I heard evidence from the following witnesses:

(1) The plaintiff, Ms. Josephine Higgins

(2) Dr. Michael Thompson, General Practitioner

(3) Mr. Paul Kiely, Consultant Orthopaedic and Spinal Surgeon

(4) Dr. Mairead O’Leary, Consultant Psychiatrist

(5) Mr. Martin Foy, Consultant Engineer

(6) Mr. John Higgins, the plaintiff’s husband

(7) The plaintiff’s chartered accountant

(8) Dr. Catherine Corby, Consultant Psychiatrist

(9) Dr. Conor McDonnell, Occupational Consultant

(10) Mr. David Mulcahy, Consultant Orthopaedic Surgeon; and

(11) Mr. Richard Coleman, the first named defendant.

(b) Evidence on liability and findings of fact

5. The plaintiff is married and manages a portfolio of properties which she and her husband purchased over a number of years. They have two adult sons with heightened care needs who are now in their thirties. One of their properties is on Main Street, Carrigtwohill, County Cork. The plaintiff’s husband, John Higgins, is an accountant and he operates his practice from the ground floor of one of the properties on Main Street. The plaintiff manages rental apartments on the first floor of the property.

6. On the day of the incident, the plaintiff had asked her husband to deliver some large stools to the apartments on Main Street in his jeep. Traffic on the Main Street can be quite busy and parking was at a premium. The plaintiff spoke to a student next door who indicated that he would be pulling out of a parking space shortly. She asked her husband to collect the jeep from the community centre nearby while she stood outside to hold the car space.

7. Looking at the sketch prepared by the plaintiff’s engineer, there is a butcher’s shop marked in red, to the right of that is number 29 and to the right of that again is number 30.

8. The student’s car had been occupying a part of the parking spot outside number 29 and a part of the spot outside number 30. The plaintiff’s evidence was that she was standing on the roadway in the space which had now been freed up by the departure of the student’s car and was waiting for her husband to pull his jeep into the available space. The plaintiff said she saw the defendant’s van pull up in front of her, about a foot away. The driver of the van had his window down and he told her to move out of the way. She said she could not get out of the way because she was waiting for her husband’s van to pull in. She stated that the driver said she would have to move because he needed to go into the butcher’s shop.

9. According to the plaintiff, the next thing that happened was that “he went for me… and I jumped back”. She said she told the driver to stop but just as her husband was pulling in “he went for [her] again”. She had her back turned to the van driver at this stage, because she was watching for her husband, who had just arrived, to pull into the space. The plaintiff said that as she was turning around, the defendant’s van hit her left knee. This gave her a jolt, but did not knock her to the ground. She said the impact caused her knee to buckle slightly. She was in a state of shock and could not believe what had happened.

10. The plaintiff said that her husband saw the collision and accused the driver of assaulting her when he got out of his car. The plaintiff said the driver parked his van more or less outside number 30 and that her husband parked up his jeep more or less outside number 29. She said the defendant had adequate space to park without going near where she was standing.

11. She said that after she had been hit by the van she went back into the office and was in a state of shock. Her husband had left a note on the butcher’s van complaining about the parking spaces. Some minutes later, the van driver walked into the office and made a remark along the lines of “You’ll get more by honey than vinegar”. She then told him to get out.

12. The plaintiff subsequently went home, and her back was in a bad way. She bent down to give a treat to her dog but was unable to straighten up properly. She had a lot of pain in her back.

13. Her husband told her to phone the Gardaí to report the incident. She rang the Garda Station in Cobh, but they were unable to take her statement, so she called into Midleton Garda Station the following night to provide a statement. She said that in light of her injuries she made an appointment to see her GP, Dr. Thompson, the next day.

14. The plaintiff’s husband, John Higgins, also gave evidence. His evidence in large measure corroborated the account of his wife. When he returned from the community centre and was driving along Main Street, he had to wait for someone to stop to let his vehicle cross the road. While he was stopped, waiting to pull into the parking spot, he could see his wife holding the space. At this point she was standing on the roadway, about 3 feet from the footpath. His wife was facing him, with her back to the building. He said that he had to watch Josephine because the space was tight to turn into. He said that as he was watching Josephine, the defendant’s van moved up and hit Josephine’s knee and she jerked. He said he drove his vehicle into the available space and parked up. He got out of the jeep and remonstrated with the van driver and accused him of assaulting his wife. Mr. Higgins said that the driver told him he was parked illegally, partly up on the footpath. He and his wife went into the office.

15. Mr. Coleman, the first named defendant, gave evidence on day five of the hearing. He had not been present for the evidence of either the plaintiff or her husband. He was the final witness in the case. He disputed the plaintiff’s account in several material respects.

16. Mr. Coleman acknowledged firstly that he was not insured to drive the van on the day in question (hence the involvement of the MIBI). He was embarrassed about this and indicated that it was out of character. He had only recently bought the van, and had made enquiries about transferring over the insurance. He had intended to transfer the insurance but had not done so at the time of the incident. His intention was to go into the butcher’s to buy some meat to have for dinner with his wife. He was driving up Main Street from the Midleton side going towards Cork and the butcher’s shop was on his right-hand side. He was looking out for a parking space and spotted one near the butcher’s. As he was pulling in, he could hear someone shouting through his open window “You can’t park there, that’s our parking spot”. He said the person was on the footpath on his right-hand side, just below the butcher’s. He did not know this person. As he pulled into the spot and squared up his van, the plaintiff started screaming “You’ve got to move on”. The plaintiff was about 2 feet away and standing on the footpath approaching the driver’s window. He said he reversed a small bit in the space to square up the van. As he got out of the van, he said he received more abuse. The plaintiff accused him of assaulting her with the van. He denied this and told her to “stop”. He said he told her that there were CCTV cameras everywhere if she was certain that he hit her. The plaintiff’s husband appeared on the scene at that stage, and she told her husband that he had assaulted her.

17. Mr. Coleman stated that he went into the butcher’s and was in there for about five minutes. When he came back out, he was passing the office next door and noticed the plaintiff staring out at him from inside the window. He said his frustration was boiling over because of the abuse he had been given earlier, and he opened the door of the office and went into Mr. and Mrs. Higgins. He said he told them “Lads, you’ve got to be good to people here. You catch more flies with honey than vinegar”. With that, in his own words, he “got up on [his] high horse”, got into his van and went home.

Findings on liability

18. As the above summary indicates, there is a stark conflict between the protagonists on certain key factual issues. Two issues in particular dispute are:

(i) Whether the plaintiff was on the footpath or on the roadway as the defendant drove his van into the parking spot; and

(ii) Whether the defendant’s vehicle collided with the plaintiff.

19. To assist in resolving these two key issues, it is helpful to consider the matters that are agreed between the parties and/or established beyond any level of serious dispute from the evidence:

(1) Prior to the disputed collision, the defendant was aware that the plaintiff, a pedestrian, was standing close to his vehicle, at a point in time when he was attempting to park his van.

(2) The manoeuvre of parking the van involved driving the vehicle into a reasonably tight space on a busy main street and straightening up the vehicle, at all times aware that a pedestrian was close by.

(3) At the time of the incident, the defendant was driving a vehicle which he knew to be uninsured.

(4) The defendant accepts that in the immediate aftermath of the disputed collision, the plaintiff claimed that the defendant’s van had hit her.

(5) This led to the plaintiff and the plaintiff’s husband remonstrating with the defendant prior to him going into the butcher’s.

(6) On being accused of hitting the plaintiff, the defendant says that he denied the allegation and told the plaintiff that if she wanted to see if he had hit her, she should check the nearby CCTV cameras. Neither side ultimately procured any camera footage.

(7) The plaintiff reported the incident to the Gardaí that night and made a statement the following day.

(8) Though aware of the allegation that had been made against him, the defendant did not report the incident until he was contacted sometime later by the Gardaí.

Conclusion on liability

20. The evidence establishes a vein of consistency between the plaintiff’s account in evidence and the accounts given by her to her doctors. She has always maintained that she was struck by the defendant’s van on her left knee. Her actions in the immediate aftermath of the incident are consistent with her account that she was struck by the van, including her actions of accusing the defendant of hitting her as soon as he got out of the van; making a report to the Gardaí on the phone that night; providing a statement to the Gardaí the next day; and attending her GP the next day in relation to injuries which she told the GP arose from being hit by the van.

21. I found that both parties to the incident did their best to provide the court with truthful evidence. However, the consistency of the plaintiff’s account contrasts with the evidence of the defendant.

22. In cross-examination, the defendant accepted that, in the statement he subsequently gave to the Gardaí on 5th July 2020, he described the lead up to the incident as follows:

“When I went to cross the road to pull into the space just beside Willie O’Brien’s butcher’s, as I was pulling in a woman came from nowhere”. This is somewhat different to the account given by the defendant in evidence that, as he was pulling in, he saw the woman standing on the footpath. The divergence between the account that the plaintiff “came from nowhere” (as described in his Garda statement) and the account that he saw the plaintiff on the footpath at all times and spoke to her through his window (as maintained in evidence) is in my view quite significant.

23. Secondly, though not an independent witness in the true sense, the plaintiff’s account is corroborated by the evidence of her husband.

24. Thirdly, I conclude that it is more likely than not that the plaintiff was standing on the roadway in one of the parking spaces, and not on the footpath, as the defendant pulled into the spot and straightened up his van. This conclusion tallies with the plaintiff’s evident determination to keep the parking space.

25. Fourthly, I agree with counsel for the plaintiff’s point that it is difficult to rationalise the defendant’s actions post incident with a belief on his part that he had just been wrongly accused of driving into a pedestrian.

26. In all the circumstances of the case, I find on the balance of probabilities that the defendant’s vehicle struck the plaintiff. I am satisfied that the defendant misjudged the situation, failed to keep a proper look-out and inadvertently struck the plaintiff who was standing on the roadway close to the footpath.

27. I accept the plaintiff’s evidence that the impact was to her left knee and that her body was jerked as a result of the incident. I am satisfied on the balance of probabilities that the plaintiff suffered the injuries and symptoms that she described the following day to her general practitioner and that the collision involved a low to moderate impact. In all the circumstances, it is not surprising that the plaintiff was left in a state of shock by the incident and was aggrieved at what had occurred.

(c) Summary of the plaintiff’s injuries

28. The plaintiff was 63 at the time of the accident and is now 68. She was born and reared in Cork. She grew up in a hard-working household and this trait of diligence was passed on to her by her parents. It is clear from all reports that the plaintiff herself is a hard-working, determined, able and caring lady who put most of her energy into caring for her two boys, both of whom have profoundly serious challenges in life.

29. The plaintiff went back to do her leaving cert in her fifties when her children were in school. She subsequently went on to study law in University College Cork and acquired a BCL, LLB and an LLM. Though the boys are now in their early thirties, she and her husband still have to care for their children and financially provide for them.

30. In order to minimise the intrusion on the privacy of the plaintiff’s children, I propose not to dwell on the nature and extent of their respective disabilities and challenges. Suffice to say, the plaintiff had to play the role of carer and mother for a long number of years throughout the boys’ childhood and later into their adulthood, and this has continued right up until the present time. Over the years, the plaintiff was frequently called upon to ferry the children to countless medical appointments and procedures. In the case of one of the children, she helped him undergo some 36 separate operations to ameliorate the effects of a significant condition.

31. One of the boys was home-schooled for a while until he was ready to join his brother in school. She described in evidence how she would frequently bring one of the boys with her when carrying out her duties looking after the various properties in the family portfolio.

32. I am satisfied from all the evidence that the plaintiff and her husband are extremely dedicated to their two children and that it was this dedication and desire to provide for their future that prompted them to save and buy investment properties as a retirement ‘nest-egg’. The plaintiff told the court, and I accept, that the focus of her work in managing and renting out the properties was to build up a fund so that when it came to her and her husband’s retirement, firstly, they would be sustained in their retirement by the rental payments and, in turn, given that her adult children are in receipt of State benefits due to their respective disabilities, the children would have properties to sell to provide for their future care needs.

33. Over time, the plaintiff and her husband amassed a substantial portfolio of properties consisting of the following:

• Tinergeragh – five bed detached house;

• Tinergeragh – two bed apartment;

• Tinergeragh – one bed apartment;

• Glasheen – three bed semi-detached house;

• South Terrace – three bed apartment;

• Carrigtwohill – one bed apartment;

• Carrigtwohill – one bed apartment;

• Carrigtwohill – one bed apartment;

• Kildinan – guesthouse and lodge.

34. I will come back to the property portfolio later in my judgment when I examine the plaintiff’s claim for loss of earnings, past and future.

35. It is fair to say that at times in her evidence, the plaintiff came across as quite a difficult and testy individual, or at least gave that impression, who had grown mistrustful of other people and was somewhat prone to rows. For instance, she spoke several times of feeling let down by and mistrustful of property management companies, and being unhappy with the Gardaí and other people whom she encountered in the course of this litigation.

36. I am satisfied from the evidence, however, that that initial impression is not in fact a fair or complete assessment because, amongst the several doctors who gave evidence, the two doctors who best knew the plaintiff formed a positive impression of her, and concluded that she was caring, able and determined. Both doctors also agreed on the major impact which this entire incident has had on the plaintiff’s personality and enjoyment of life. Those two doctors are the plaintiff’s general practitioner, Dr. Thompson, and the plaintiff’s psychiatrist, Dr. O’Leary, to whose evidence I will now turn.

Evidence of the plaintiff’s GP, Dr. Thompson

37. Dr. Thompson saw the plaintiff on the day after the accident on 14th February 2020. The plaintiff had reported being struck on the left knee in a low to moderate impact. She did not fall down but recalled being very shaken by the incident and by the distressing exchange with the van driver. The plaintiff reported that she felt an immediate strange sensation in her lower back. The pain significantly increased during the day and spread to her leg. Lower back and left leg pain were her predominant complaints at this early stage. On examination, the plaintiff had slight left-sided lumbar lordosis, which means that her spine had a little bit of spasm and curved a bit. At that stage, the GP diagnosed mild-to-moderate soft tissue injuries. On subsequent visits by the plaintiff, Dr. Thompson noted that the plaintiff had significant weight gain which the plaintiff had put down to her lack of mobility.

38. The plaintiff found the summer months difficult; she had limited activity and needed to avoid her previous activities such as long drives, gardening, walking distances, and instead had to sit for prolonged periods. He noted that frustration was starting to creep into the picture from the prolonged nature of her symptoms.

39. In his second report, Dr. Thompson noted that on 4th December 2020 the plaintiff was reviewed and referred for an MRI on her lumbar spine. The MRI was taken on 16th December 2020 and indicated a left disc bulge making contact with the L5 nerve. This, along with her sciatica symptoms, led to the plaintiff’s referral to the neurosurgeon.

40. On 17th May 2021, Dr. Thompson notes a recent significant exacerbation of neck and back pain. She was caused to attend the VHI Clinic, and was referred to the Mater Private Emergency Department. Mr. Eoin Fogarty of the Emergency Department referred the plaintiff to Mr. Patrick Kiely, Consultant Orthopaedic Spinal Surgeon in the Mater, and noted that the plaintiff had changed her work posture and body habits as a result of the accident which may in turn be leading to her new neck and shoulder pain. Mr. Kiely performed an injection on the plaintiff’s neck and shoulder region.

41. The plaintiff was reviewed again on 21st September 2021. At this stage, she had undergone an epidural injection under the care of Mr. Kiely, but unfortunately, she did not receive much benefit from this. The plaintiff’s anxiety levels on that occasion were significant. On later review on 1st March 2022, the plaintiff had ongoing back pain. She was frustrated with her experiences since the incident and her sleep continued to be affected. Her mood was variably low at times, though she did not meet the criteria for clinical depression. Dr. Thompson felt that the plaintiff’s symptoms were entirely in keeping with her mechanism of injury, albeit of a prolonged nature at this stage.

42. Due to her medical history and history of allergies, the plaintiff was precluded from taking a lot of medication. She attended physiotherapy on a number of occasions, but COVID-

19 interrupted this. Her hobbies and social activities had diminished due to her symptoms, and she was at that point unable to do things which she had enjoyed previously such as volunteer work, gardening and painting.

43. Dr. Thompson emphasised in his evidence that, arising from the plaintiff’s chronic pain, her capacity to carry out her normal professional and social tasks was seriously impacted.

44. Significantly, Dr. Thompson felt that the plaintiff’s personality underwent significant change pre and post-accident. Since the accident, she has felt frustration and a sense of injustice. She was very disappointed initially with the response from the Gardaí to the incident and was shocked at how something like this could happen to her. Further, she was frustrated at how long it was taking for her injuries to clear up and thereafter had protracted dealings with the medical profession.

45. She was also not managing well at home or at work. She had previously been a very good advocate for her two sons and found her newfound circumstances and injuries to be an increasing struggle. She was less able to interact with her grandchild and less able to concentrate on her own professional work. The plaintiff had quite detailed conversations with the GP over several visits about the difficulties she was encountering in carrying out her property management duties. In March 2022, Dr. Thompson referred the plaintiff to Dr. O’Leary, Consultant Psychiatrist, whom she attended on a number of occasions.

46. Dr. Thompson told the court that, as of now, the plaintiff’s ongoing difficulties include her neck complaint, back pain, an Achilles tendon injury sustained in March 2025 and psychological injuries for which she was attending the psychiatrist. Her neck pain was radiating into her right upper limb. The lower back pain was causing ongoing sciatica which the plaintiff attributed to her recent fall when she suffered the Achilles injury. The plaintiff was spending a lot of time in bed whereas previously she had enjoyed social activities and hobbies.

47. When asked to compare how the plaintiff was before the incident with how she was now, Dr. Thompson stated that she was radically different. She was a ‘force of nature’ before. She had been self-employed and very successful in her role in managing the properties and particularly in caring for her two sons with their challenging issues. She had been motivated, dynamic and happy. In the view of the GP, there had now unfortunately been a radical personality change as a result of her injuries, both physical and mental.

Summary of evidence of Dr. Mairead O’Leary, Consultant Psychiatrist

48. Dr. O’Leary first met the plaintiff on 2nd June 2022. Dr. O’Leary provided three reports, dated 2nd June 2022, 5th March 2024 and 1st October 2024 respectively. At the conclusion section of her initial report, Dr. O’Leary indicates that the plaintiff suffered psychiatric sequelae, namely an adjustment disorder with a mixed anxiety and depressive reaction, and also a disturbance of other emotions as a result of the injury. The plaintiff had developed pain all over her body, but particularly in her back, as a result of the accident which prevented her from being able to work and do the activities she had previously engaged in.

49. Dr. O’Leary explained in evidence that an adjustment disorder is a state of subjective distress and emotional disturbance usually interfering with social functioning and performance and arising in the period of adaptation to a significant life change or the consequences of a stressful life event. She felt that, clearly, the stressful event was the van driving into the plaintiff and the life change was the very significant pain that the plaintiff had to endure thereafter.

50. The plaintiff went on to develop typical manifestations including depressed mood, anxiety, worry, tension and anger. She felt unable to cope and plan ahead and had a definite degree of disability in the performance of her daily routine. The plaintiff’s reporting indicated that, in the first couple of months, she was quite depressed with low motivation. As time passed, this depression persisted, and the plaintiff became more anxious and also deeply frustrated and angry. This anger and frustration included her dissatisfaction with how the Gardaí had dealt with her complaint; she had initially been reassured that an investigation would be carried out, but charges were not brought against the man, even though he had been driving without insurance.

51. While an adjustment disorder normally does not extend beyond a period of approximately six months, this was not the case in the plaintiff’s situation as it persisted alongside the severe pain she was feeling and the impact this was having on her lifestyle and work activities.

52. Dr. O’Leary reviewed the plaintiff on 5th March 2024. The plaintiff reported that she did not go for walks anymore as the effort was too much. She did jigsaws instead. She constantly felt sad and frustrated that her life which had been so full was now quite different. It was painful for her to get into her husband’s jeep, but she could not justify having a car for herself as she did not have a job. She reported falling regularly, something that had never happened before the accident and this worried her, particularly because her own mother had multiple sclerosis, and she was afraid her condition would lead to a similar condition. Overall, the plaintiff was very “agitated”, “frustrat[ed]”, “spoke quickly” and was “intensely aroused”. She was very apprehensive and anxious about the future. There had not been much improvement between May 2023 and March 2024. The plaintiff continued to feel frustration, anger, depression, pessimism and also preoccupation with her legal case. Her continuing pain was preventing her from doing any of the things that she used to do in the past.

53. Dr. O’Leary reviewed the plaintiff on 1st October 2024 and, unfortunately, there was no improvement in her condition. She continued to be agitated and pessimistic and, in the opinion of the psychiatrist, the plaintiff’s adjustment disorder persisted as did her low mood.

54. In cross-examination, it was put to Dr. O’Leary that the plaintiff had been assessed by Dr. Corby, psychiatrist for the defendant, who felt that the plaintiff did not have a recognisable psychiatric illness. Dr. O’Leary disagreed with her colleague in that regard and noted that Dr. Corby had elicited all of the symptoms which she herself had elicited from the plaintiff, and that the only difference in fact between the two psychiatrists was the conclusions drawn from that list of symptoms. Dr. O’Leary indicated that, if she had read Dr. Corby’s report, her

conclusion would be that the patient in question had an adjustment disorder. Dr. O’Leary stated, and I accept, that she had no doubt in her mind that the plaintiff has an adjustment disorder. In her view, the plaintiff remains agitated and uneasy, and her adjustment disorder persists. She has not accommodated at all to her change in lifestyle and her inability to function in the way that she did previously. This is engendering intense agitation, unease and low mood in the plaintiff.

Evidence of Paul Kiely, Consultant Orthopaedic Surgeon

55. Mr. Kiely provided three reports dated 7th May 2021, 16th May 2022 and 29th January 2024 respectively.

56. In his report following the consultation in May 2022, Mr. Kiely noted that the plaintiff had sustained an injury to her lower back that was consistent with the described road traffic accident on 13th February 2020. She continued to be symptomatic and had not fully recovered despite (at that point) the passage of time of 27 months, six sessions of physiotherapy and pain management intervention consisting of caudal epidural injections on 15th September 2021. The plaintiff’s persistent symptoms interfered with her activities of daily living, including working. She was unable to garden, prepare apartments for tenants (such as by cleaning, painting and interviewing prospective tenants), and participate as a cancer volunteer worker. She also reported difficulties looking after her granddaughter whom she was unable to lift.

57. In Mr. Kiely’s opinion, the majority of the plaintiff’s back and right lower limb symptoms were secondary to the L3/L4, L4/L5 and L5/S1 disc bulges, and L5/S1 foraminal stenosis, respectively. These radiological findings appeared degenerative in origin. However, the plaintiff had stated that she was asymptomatic prior to the 2020 accident. He states that the plaintiff’s symptoms were precipitated by the 2020 injury and may not have developed until later in adulthood, were it not for the RTA. He was of the view, in May 2022, that she required a follow-up with a consultant spinal surgeon as her symptoms had not resolved.

58. Mr. Kiely stated that the plaintiff had an MRI of her lower back in 2020, and MRIs of her neck and right shoulder in 2021. The MRI of her neck demonstrated that she had significant stenosis or narrowing of her neck at C6/C7. Furthermore, due to fusion in her neck at the next level of C5/C6, she had a loss of cervical lordosis (normal shape) which demonstrated that she had abnormal segmentation. Mr. Kiely indicated that this tallied with the plaintiff’s history of neck fusion surgery many years earlier which was unrelated to the RTA.

59. The MRI of her shoulders demonstrated extensive degeneration in her shoulder, specifically involving her rotator cuff. All of this gave the plaintiff a significant restriction of movement. She showed symptoms similar to having a ‘frozen shoulder’. In terms of treatment, Mr. Kiely gave the plaintiff an epidural injection in her lower back but, unfortunately, she did not respond well to this. He told the court it is not unusual for patients not to get relief from the procedure, and sometimes it needs to be repeated or does not work for a patient at all. He explained it is also not unusual for a plaintiff to have a bad experience and to be disinclined to have another one done.

60. Mr. Kiely reviewed the plaintiff on 29th January 2024. At that stage, the plaintiff was complaining of persistent neck and back symptoms which were still affecting her daily activities. On examination, he noted that the plaintiff walked with a painful gait. She had increased kyphosis in that she was tilted forward on one side. This was probably down to degeneration in her thoracic spine. She had localised tenderness and pain at the junction between her neck and her mid back, and in her lower back. This was consistent with the plaintiff’s account of the events. He stated that there was objective evidence in the form of spasms which indicated that the muscles in the paravertebral region, right and left of the lumbar spine, were overactive. When he examined her neck specifically, he found that she had a reduced range of motion, particularly in her extension and in looking to her right and left. Mr.

Kiely noted that a ‘Spurling sign’, an objective way of trying to demonstrate if somebody has particular symptoms, was positive in her case.

61. Mr. Kiely examined the plaintiff’s shoulder, and noted she had a painful arc of motion insofar as her range of motion was compromised and restricted by pain. The plaintiff had an arc of motion of 80° of abduction. Mr. Kiely felt that overall, the plaintiff’s injuries were likely to have a significant impact on her ability to do her property management duties such as DIY work, cutting grass, painting and decorating. The plaintiff, he indicated, did not have normal function at all on the right side.

62. On examination Mr. Kiely noted that the plaintiff had a restricted range of motion in her back. Her extension flexion, which he described as the ability to “go down” on either side, was compromised on the right side, and she was symptomatic. This he said was reflective of her having an underlying problem with the facets in her lower back. He felt that, again, her back complaints would negatively impact on her ability to perform her property management duties or anything that was physical in nature.

63. In Mr. Kiely’s view, the plaintiff’s neck and shoulder complaints were not caused by the accident, but may have been exacerbated by it due to pre-existing degenerative changes in her neck. It was not unusual that she may not have complained about her neck symptoms for some time post-accident because her main symptom, namely her lower back complaint, would have operated as a distracting type injury and was probably where her focus would have been. He felt that if somebody was asymptomatic prior to an accident and then suddenly became symptomatic, that would certainly be relevant from the point of view of diagnosis and causation.

64. Under cross-examination, it was put to Mr. Kiely that the plaintiff had neck surgery some 20 years previously and was also getting older. He was asked whether, if she did have degenerative changes in the neck, it was likely that she could suffer exacerbation from it at some stage. Mr. Kiely replied that data would suggest a 10% chance of that occurring. When asked if the plaintiff would have suffered from pain in respect of her neck later on in life, irrespective of the accident, he replied that she would have. He also stated that there was no way of knowing for sure whether the neck injury was connected to the incident or not, particularly in circumstances where the presentation in respect of the neck complaint appeared to have been some 15 months post the RTA.

65. It was put to Mr. Kiely that Dr. Mulcahy, the doctor who saw the plaintiff for the defendant, took the view that the plaintiff’s back injuries were degenerative in nature and were caused by ‘wear and tear’ as opposed to the RTA. Mr. Kiely’s response to that question was interesting. He noted that the plaintiff had had two MRIs done, one in 2011 and one in 2020, and that there were significant changes between the two. He stated that in the MRI in 2011, there was present an annular fissure at L3-4, which he described as a hole at the back of the disc, and that these can come about as a result of trauma. That fissure on the 2020 MRI was worse than on the 2011 MRI. Therefore, in Mr. Kiely’s view, there was evidence in the most recent MRI of the plaintiff’s lower back which was objectively supportive of her current symptoms. He acknowledged that, while Mr. Mulcahy may maintain that many of the symptoms and features of her condition are consistent with degeneration, the up-to-date/postaccident scan indicated that her symptoms had been made worse.

66. The above extracts are only a limited summary of the evidence heard by the court. The parties can take it that I have reviewed all of the medical reports in the case and also the transcripts of the oral evidence given by the doctors called for both sides, including the evidence from the defendant’s doctors, Dr. Corby, Consultant Psychiatrist, Dr. McDonnell, Occupational Consultant and Mr. Mulcahy, Orthopaedic Surgeon. It is not necessary to repeat their evidence in any great detail because it is clear from submissions made to the court that there are only limited areas of dispute between the parties on the medical evidence and on the question as to the appropriate bracket within the Personal Injuries Guidelines each element of the plaintiff’s injuries should lie. I will now summarise my findings on the medical evidence.

Findings on the medical evidence

67. I have carefully considered the medical evidence and reports of both sides. Arising from that evidence I make the following findings on the balance of probabilities:

(1) Even though the collision the subject of the proceedings was minor in nature and involved an impact with no more than a moderate level of force, the accident resulted in significant personal injuries to the plaintiff and has negatively impacted her life to a serious degree for the last five years.

(2) The plaintiff’s most serious injury is the psychiatric adjustment disorder described by Dr. O’Leary. Both psychiatrists provided helpful evidence to the court. However, Dr. O’Leary as the treating doctor had a greater and longer opportunity to assess the plaintiff. Moreover, Dr. Corby fairly acknowledged that Dr. O’Leary’s view regarding an adjustment disorder was reasonable, albeit Dr. Corby felt that the diagnosis did not sufficiently explain the full extent of the plaintiff’s anger. I accept the evidence of Dr. O’Leary as the plaintiff’s treating psychiatrist, including her finding that the plaintiff suffered from a prolonged and disabling adjustment disorder as a result of the accident, which was prolonged by extensive pain from her physical injuries. I accept her finding that the plaintiff suffered psychiatric sequelae in the form of a psychiatric adjustment disorder with a mixed anxiety and depressive reaction, and also a disturbance of other emotions. I accept her finding that the plaintiff, as a result, developed typical manifestations including depressed mood, anxiety, tension and anger. The plaintiff felt unable to cope and plan ahead and was disabled in the performance of her daily routine. She became depressed and lacking in motivation and this has persisted, compounding her sense of misery, anger and withdrawal.

(3) The second most serious element of the plaintiff’s injury profile is her ongoing back complaint with related pain and soreness radiating to other areas of the body. I am satisfied that these injuries are also attributable to the accident. According to the reports from Mr. Kiely, Orthopaedic Surgeon, the plaintiff’s back complaint was localised to the lower lumbar region and also radiated to the right buttock and the anterior aspect of the right thigh as far as the knee. These symptoms began in February 2020 after the accident. Her symptoms have persisted to date and interfere with her activities of daily living and her working tasks such as preparing apartments for tenants, cleaning, painting, interviewing tenants, gardening, DIY work and participating as a cancer volunteer worker. Her back complaint has also caused a loss of amenity in terms of her ability to lift and play with her grandchild. While the findings on the MRI scans are degenerative in nature, I find that the plaintiff’s back symptoms were precipitated by the accident and would not have developed (if they developed at all) until much later in the plaintiff’s life. The causal connection between this aspect of the plaintiff’s injuries and the accident is also supported by the evidence of the plaintiff’s general practitioner, Dr. Thompson.

(4) The cause of the plaintiff’s neck injury and related symptoms is more difficult to assess. Dr. Thompson records the plaintiff mentioning the neck symptoms approximately 15 months after the accident. The plaintiff relayed to the defendant’s occupational consultant, Dr. McDonnell, that the neck symptoms began sometime in 2021 approximately 10 months post-accident. Both the defendant’s orthopaedic surgeon, Mr. Mulcahy and Dr. McDonnell, the occupational consultant, felt that the neck complaint was not related to the accident. Mr. Kiely was more equivocal on the issue and stated that the neck and shoulder complaint may have been exacerbated by the injury to her back but was not caused by it. Having reread the reports and the transcripts on this issue, I think the preponderance of the evidence favours a

conclusion that the neck and shoulder complaint is not attributable to the accident and is more likely connected with the previous surgery and general ‘wear and tear’.

(5) The cause of the plaintiff’s injury to her Achilles tendon in March 2025 did not receive much attention in the evidence or in the medical reports. The plaintiff’s evidence was that she had been experiencing issues with her balance, which she attributes to the accident, and that this caused or contributed to her falling on a step and banging her Achilles tendon. The Achilles tendon injury gave rise to a significant deterioration in the plaintiff’s mobility, requiring crutches and even a wheelchair for a period. All told, I am not satisfied that this has been evidentially connected to the accident. The injury occurred in approximately March 2025, over five years after the index accident. Neither the plaintiff’s GP nor Dr. Kiely expressly linked the two events. In the circumstances, I conclude that this aspect of the plaintiff’s injuries was not caused by the accident.

(6) My conclusion that neither the plaintiff’s neck/shoulder injury nor the Achilles tendon injury are attributable to the accident of February 2020 may impact, to a limited degree, the plaintiff’s claim for loss of earnings arising from the compromising of her ability to earn profits from her rental properties. However, I think on a fair reading of the evidence, the plaintiff’s ability to carry out her working duties as a property manager was already seriously compromised by the combination of her adjustment disorder, psychological symptoms and primary physical complaint relating to her back injury with related secondary pain radiating into other areas. I have taken this into account in the final outcome.

(d) Claim for loss of earnings

68. This was by far the most problematic aspect of the plaintiff’s overall claim. The claim for loss of earnings advanced in the report from the plaintiff’s accountancy expert amounted to a whopping €1.752 million, of which €1.4 million was claimed for loss of earnings and €342,602 claimed for the loss of capital appreciation of properties which had to be sold.

69. In truth, I found it difficult to work out the basis upon which the loss of earnings claim of over €1.4 million was put forward. It was said to consist of three components: firstly, the cost of third-party management agents if they had been engaged to manage the properties on the plaintiff’s behalf; secondly, the lost opportunity of increasing income by buying new properties; and thirdly, the loss of rental receipts to date and into the future. The figures were premised on the rather ambitious basis that the plaintiff would have continued to carry out the physical and administrative tasks in question up until she was aged 85.

70. The accountant’s report was premised on maximum or close to maximum rent being earned by each property in view of the high level of demand for rental properties in Cork and in the specific areas in question. The accountant also factored in the extensive and varied role played by the plaintiff (legal, financial, marketing, maintenance etc.) in the past while operating her property portfolio. On this basis, the accountant worked from a rate of 60% of future rental income as a way of measuring the cost of the plaintiff’s contribution. The accountant calculated the net present value of the cost of third-party management to be €974,465.

71. The lost opportunity of increasing income by buying new properties was calculated to be €307,726. The figure for loss of rent in the years 2020 to 2023 was calculated to be €127,842.

72. In relation to the claim of €342,602 for the loss of capital appreciation of properties which had to be sold, the accountant’s report referred to the plaintiff having to put three properties on the market, namely Glasheen, South Terrace and Watergrasshill (otherwise known as Tinergeragh).

73. The final page of the report notes, unusually, that the report was “approved by” the plaintiff, whose signature is appended underneath the signature of the accountant.

(e) Admissibility of the accountancy expert’s report

74. The court was invited by counsel for the defendant to deem the evidence and report of the accountancy expert inadmissible. It is fair to say that flaws in the methodology utilised by the plaintiff’s expert were already apparent from the evidence of the plaintiff and her husband, long before the accountant got into the witness box.

75. In several important respects, the accountancy expert’s evidence and report did not meet the standards for expert evidence identified by the Court of Appeal by Noonan and Collins JJ. in Duffy v. McGee [2022] IECA 254. Expert witnesses enjoy a special position in the law of evidence. Unlike non-experts, expert witnesses are not confined to giving purely factual evidence but may give opinion evidence where certain criteria are satisfied. Very frequently, the evidence of the expert will be decisive to the outcome, particularly where there are complex scientific or medical issues arising. Some of the most high-profile miscarriage of justice cases have arisen from serious failures on the part of an expert. It is right therefore that the law expects and demands the highest standards of experts. This has found expression in many judgments and more recently, rules of court (see Duffy paras. 78 and 79 per Noonan J.).

76. Noonan J. makes clear that the expert is there to assist the court, not to decide the case, and the court has no obligation to accept the evidence of any particular expert, even where it is uncontradicted. Noonan and Collins JJ. both emphasised that the expert’s first duty is to assist the court, and most expert reports include a declaration to that effect. Both judgments observed that unfortunately, it is commonplace for experts to succumb to the natural tendency to put the interests of their own clients first, unconsciously or otherwise. This is not acceptable.

77. Both judgments reference with approval the classic statement of the duties of experts as set out in the judgment of Cresswell J. in National Justice Compania Naviera SA v. Prudential Assurance Co. Limited (“The Ikarian Reefer”) [1993] 2 Lloyd’s Report 68 at 81-

82. I won’t quote the Ikarian Reefer principles verbatim but in summary they include the following:

(1) Expert evidence should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.

(2) An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness should never assume the role of an advocate.

(3) An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

(4) An expert witness should make it clear when a particular question or issue falls outside his expertise.

(5) If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

(6) If after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such a change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.

(7) Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be proved to the opposite parties at the same time as the exchange of reports.

78. Noonan J. carried out a review of authorities in this jurisdiction on the duties of experts. He distils the relevant principles at paras. 91 to 99 of his judgment in Duffy. Lifting out the extracts from the cases cited, the following principles are identified: “91. The overriding duty of the expert is owed to the court and includes the duty to provide an objective opinion. Objectivity by definition requires that one has regard to both sides of the case. An essential component of the duty of the expert is to ascertain all relevant facts whether they support the client’s case or not. This duty has been reiterated many times…

92. An expert is not entitled to simply accept without question the instructions of his or her client and proceed to offer what must necessarily be a blinkered opinion...

93. An expert should bring “an independent inquiring mind” to bear on the task at hand… [An expert must not simply restate] without question the claims made by the plaintiff without conducting any independent verification or analysis of those claims...

94. Thus, where the facts are in dispute, the expert should make clear which version of events forms the basis for his or her opinion and what the consequences for that opinion are if an alternative version is accepted. In that analysis, however, it is no function of the expert to advocate for a particular resolution of factual controversies as that would be to usurp the function of the court. The duty of impartiality and independence necessarily imports a willingness on the part of the expert to remain open to alternative possibilities and if necessary, to change his or her mind when confronted with new information.

95. Where it is found that an expert has not complied with these duties, the question arises as to whether this should affect the admissibility of the expert’s evidence or merely the weight to be attached to it…

96. With regard to Canadian law, the Court said that the weight of authority strongly supports the conclusion that at a certain point, expert evidence should be ruled inadmissible due to the expert’s lack of impartiality and/or independence.”

79. I am satisfied that in the present case the expert called on behalf of the plaintiff did his best to provide the court with helpful and impartial testimony. He did not enter the fray in a partisan way in the manner the toxicology expert did in Duffy. The partisan and one-sided testimony of the expert in Duffy lay at the extreme end of the spectrum. In my view, we are not in that territory here. However, there were several aspects of the evidence of the plaintiff’s expert in the present case that were concerning and, to put it mildly, unsatisfactory. The fundamental difficulty was that it was not clear to the court to what extent the figures in the report represented the desired “wish list” of the plaintiff and her husband, rather than (as one would expect) the wholly independent expertise and judgment of the expert. Unfortunately, there was a singular failure by the expert to stress test or independently assess the instructions received from his clients. In several respects, the expert took the instructions from the client at face value, without carrying out even basic verification checks. It is of no assistance to the court if an expert simply acts as a mouthpiece for their client.

80. But the problems with the claim for loss of earnings ran deeper than the methodology used by the expert witness. One concerning aspect was that the court was told the plaintiff and her husband were unhappy with earnings figures put forward in an earlier report, referred to as the “EY report”. This report from Ernst & Young apparently advanced a claim for loss of earnings in the amount of €1.4 million in total. The plaintiff and her husband wanted a larger figure and withdrew the EY report, having already provided the report to the defendant’s solicitor.

81. Since I have not seen the EY report, I do not propose to base any findings on it or draw any inferences from it. However, it is an uncomfortable and off-putting aspect of the case that the plaintiff and her husband appeared to be desirous of wringing every last ounce out of each heading of loss to maximise her claim for loss of earnings. Unfortunately, this led to the plaintiff and her husband advancing an overall claim that was wholly unreasonable, excessive and unrealistic.

82. But for the fact that the accountancy expert and the plaintiff made reasonable acknowledgements in their replies to questions, particularly in the context of cross-examination by counsel for the defendant, I would have had little option but to dismiss the entirety of the loss of earnings claim as being wholly devoid of credibility. I would also have had to consider the implications of this on the rest of the plaintiff’s claim. However, somewhat to her credit, the plaintiff acknowledged in different parts of her evidence – both in chief and in crossexamination – that there were various causation issues in play (e.g. water ingress issues, planning issues and unruly tenants) which prevented some properties from being rented out, unrelated to her injuries.

83. The accountancy expert rightly accepted in cross-examination that the proper course would have been to obtain independent figures from an estate agent or other experts on the question as to rental valuations. I also take into account that his failure to do this in the time since September 2024 was due to the fact that he had a very serious health condition. The expert accepted that the failure was unsatisfactory. He also acknowledged that the report before the court was in fact only a provisional report and was lacking in assumptions and figures which had been independently assessed.

84. No oral or documentary evidence was provided from an auctioneer or estate agent as to the likely rental values for the properties concerned. The rental figures apparently came from the EY report that I have referenced, which the plaintiff’s husband apparently relied on in his evidence.

85. Nor was it clear why the loss of earnings claim as originally advanced in May 2022 was for €50,400 in respect of, at that time, two years’ loss of earnings. That initial claim was particularised in a reply to a notice for particulars dated 9th February 2023. The plaintiff was unable to explain the disconnect between this claim and the vastly larger claim the accountant was instructed to bring.

86. Another concerning feature was that the plaintiff appeared to feel that she had some supervisory role over the preparation and finalisation of the accountant’s report. The fact that, according to the report, she “approved” the document speaks volumes. The accountancy expert told the court that he sent the draft report to the plaintiff on 15th September 2024 but did not alter its contents.

87. The expert accepted that he should have looked for independent verification of the historic acquisition of the properties, instead of just accepting the plaintiff’s inaccurate instruction that she added properties to the portfolio every five years. Cross-examination on these issues prompted the expert to acknowledge (appropriately) that, with the benefit of the information now available to him, he would change the report. He acknowledged that he did not see evidence of letting agreements prepared by the plaintiff. He also acknowledged that the report was produced in circumstances of urgency because of the then looming hearing date. Regrettably, however, the report was never updated or subsequently rechecked.

88. The report notes at the top of page 2 that, as the expert’s appointment only took place on the 4th September 2024, just prior to him taking annual leave, he had not been in a position to seek expert opinions elsewhere, which he indicates he may have sought if time had allowed.

Therefore, the report notes that reliance was being placed solely on information provided by the plaintiff. In my view, that concession, though properly made, is not a sufficient answer to the defendant’s reasonable criticisms of the expert’s methodology. Allowing what was effectively a draft report to go before the court was in my view not acceptable.

89. The expert also acknowledged that, with respect to the Glasheen, South Terrace and Watergrasshill/Tinergeragh properties, the report may have ‘double counted’ in outlining the rental losses and capital losses.

90. On any view, it is beyond unsatisfactory that the court was provided with a report vouching a claim for loss of earnings which partially included double counted figures for rental losses and capital losses. This acknowledgement, coupled with the other defects, calls into question whether the court can place any reliance on the report.

91. The expert acknowledged that he would not submit the report in its current form without carrying out further checks and verifications. He stated in evidence that he reluctantly took the job because the plaintiff and her husband were under pressure at the time and had asked several accountants, without success, to do a report.

92. In my view, while the expert’s evidence was plainly unsatisfactory, the parties most to blame for the inadequacies in the report and the inadequacies in the overall loss of earnings claim are the plaintiff and her husband. It is they who are guilty of overreach and it is they who are responsible for a grossly excessive and wholly unrealistic claim being presented to the court. Part of the claim was based on the premise that the plaintiff would be carrying out quite heavy physical work in managing the rental properties well into her mid-eighties. This was unrealistic in my view and no proper adjustment was made for this factor.

93. In all the circumstances, I find that the plaintiff’s claim for loss of earnings, as presented in the report of the accountancy expert, has not been evidentially sustained. Much of the evidence given by the plaintiff and her husband to underpin the various heads of loss was unclear and vague. Moreover, in certain important respects, the plaintiff failed to mitigate her losses because she steadfastly refused to countenance hiring a property management agent or other contractor to do the work that she could not now do due to her injuries. I did not find her explanation for this to be reasonable.

94. The overreach by the plaintiff and her husband in advancing the excessive sum claimed, coupled with the series of flaws in the expert’s methodology, together create a dilemma for the court as to how best to treat these difficulties in a manner that is fair and just to both sides. The court has been placed in a difficult situation in this sense: I must bear in mind that the plaintiff bears the onus of proof at all times, including in respect of proving her claim for loss of earnings. As against that, it is beyond any serious doubt that the plaintiff’s ability to carry out her working tasks was severely compromised by the mental and physical injuries she sustained in this accident. The plaintiff has undoubtedly suffered a diminution in earnings as a result of the injuries the subject of these proceedings.

95. The evidence establishes that the plaintiff played a crucial and varied role as manager of the rental properties. She was something of a “one-woman band” carrying out different roles. Under normal circumstances, these different tasks would have been carried out by several different contractors or employees. I accept the plaintiff’s evidence – corroborated by what was said to various doctors – that she operated variously as a painter, DIY person, gardener, cleaner, bookkeeper, rent collector, property manager, interviewer of tenants, liaison person and general administrator. From time to time, she also dealt with tenant complaints and legal claims before the Residential Tenancies Board (RTB). I have no doubt but that the plaintiff’s physical and mental health issues, as caused by the accident, substantially contributed to the plaintiff being unable to carry out these working tasks.

96. Without in any sense ignoring the unacceptable flaws in the loss of earnings claim as mounted, the fact remains that the plaintiff did all of these jobs pre-accident and was substantially unable to do these jobs post-accident. All things being equal, that state of affairs would usually give rise to a financial loss which should be capable of being calculated.

97. Having considered the issue at some length, I have come to the view that I should attach virtually no weight to the expert’s evidence. The report contains simply too many admitted flaws. The clients’ instructions have not been sufficiently tested or verified. The basis for the future loss of earnings calculations, especially the capital losses, is shaky and unexplained. There is double counting with respect to the claims for lost rentals and lost appreciation for the properties that were sold. Some of the findings are provisional at best.

98. However, there were aspects of the accountant’s evidence that I found helpful. I found the description of the property market in Cork as buoyant and references to the shortage of rental properties in Cork to be persuasive. The accountancy expert had a number of landlords on his books as clients, and he had a good sense of the rental market, as had the plaintiff and her husband. On any view of the evidence, it was clear the plaintiff had suffered a financial loss arising from a reduction in rental payments since the accident.

99. I have come to the view that it would be disproportionate to exclude the entirety of the plaintiff’s claim for loss of earnings, notwithstanding my negative findings on the extravagant claim advanced on the basis of the accountant’s report. There was in my view sufficient evidence of past rental losses, though the exact quantum of such losses was not clear. The plaintiff’s own evidence on future losses was vague and unfocused, but her evidence on past losses had a greater level of specificity, at least with respect to some of the properties. It was clear that she suffered financial loss from not being physically or mentally able to rent out some of the properties. I accept the plaintiff’s evidence that pre-accident, she was assiduous in getting in another tenant quickly when one moved out, but that she was unable to keep this up postaccident.

100. While the excessive claim for loss of earnings was deeply unimpressive and did not reflect at all well on the plaintiff or her husband, I am prepared to accept that their zeal and determination to provide a nest-egg for their children operated to cloud their judgment and contributed to them putting forward a wholly unrealistic claim.

101. Returning to the evidence, I find that, but for the accident, it is likely that the plaintiff would have been able to earn a good rental income from the Glasheen property which she had transformed from being a mini-supermarket into a private dwelling. I accept the plaintiff’s evidence that, but for the accident, Glasheen would have come on stream in 2020 as it was in a very good area for rentals. Once the planning eventually came through and the refurbishments were completed, it was a turn-key 3-bedroom house. However, the rental claim with respect to Glasheen cannot in my view extend beyond August 2023 when the property was sold. The defendant cannot be responsible for the period beyond that in circumstances where other factors may have prompted the plaintiff to sell, such as cash flow, loan repayments or unrelated business decisions.

102. Tinergeragh is a 5-bed detached house with a potential monthly rent of €2,850 and potential annual rent of €34,200. I accept the plaintiff’s evidence that Watergrasshill where this house is located is a solid rental location, attracting tenants from nearby companies and businesses. The plaintiff’s family lived in the main house while she and her husband over time renovated the one and two-bed granny flats alongside. The rentals table in appendix 1 of the report shows that the rentals in Tinergeragh (Watergrasshill) went from €19,693 in 2019 and stopped at €4,883 in 2021. I find that on the balance of probabilities, this was substantially due to the plaintiff’s injuries.

103. Past losses were also proved with respect to the three rental apartments on Main Street, Carrigtwohill. Rental payments which were €21,330 in 2019 had fallen to €9,914 by 2024. I accept the plaintiff’s evidence that only one of the three apartments was rented in 2025.

104. However, even the claim for past losses was not straightforward. There was a lack of clarity on precisely when properties were available for rent and why certain properties did not have an established history of rental receipts. In view of this uncertainty and the plaintiff’s candid evidence as to other properties having a chequered history of flooding and planning delays, the court can only do its best to estimate the true extent of the past losses.

105. I am factoring in that the property management role was the plaintiff’s full-time occupation, that the rental market in Cork was buoyant and there was a shortage of rental properties, that the plaintiff’s role likely involved after-hours calls and tasks, that the various duties involved a significant draw on physical as well as administrative resources, that the plaintiff also fulfilled a quasi-legal role in defending complaints before the RTB and that she chose, for whatever reason, not to hire a property management agent to carry out the management tasks she was unable to perform due to her injuries. I also take into account that, to a limited degree, some of the plaintiff’s inability to work was down to her neck and shoulder injury, and from March 2025 the Achilles injury, neither of which was attributable to this accident.

106. I have little doubt but that the actual value of the work done by the plaintiff pre-accident would have been greater than the figure I propose to allow for past losses, possibly considerably so. However, arising from the wholly unrealistic claim advanced by the plaintiff for future losses and the, at times, uncertain claim advanced for past losses, the court has been left in a situation of having to estimate the value of the plaintiff’s past losses. Therefore, out of fairness to the defendant in particular, the court must err on the side of caution and choose a minimum figure at the bottom end of the likely range.

107. Adopting that necessarily conservative approach, the figure I have chosen is considerably lower than the figure that would be earned by a person on a minimum wage working full-time, five days a week on a 40-hour week (€28,080 on the current minimum wage of €13.50 per hour in 2025). Even if one works off the lower minimum wage applicable in 2020 (€10.10 per hour), the figure I am allowing is less than the equivalent earnings that a cleaner or painter on minimum wage would earn cleaning or painting the plaintiff’s properties.

108. At the end of the day, while it is not the role of the court to patch up holes left by the plaintiff’s own evidence, justice requires that the court should do its best to arrive at a just outcome that is fair to both sides. Having carefully considered the issue, I have decided that the justice of the case would be met by allowing a total figure of €15,000 net per annum for all of the plaintiff’s properties, and bookending the loss of rentals claim to 4 years from the date of the accident. This takes into account the fact that part of the plaintiff’s incapacity was down to the other injuries not caused by the February 2020 accident. I will disallow any figure under the remaining headings of capital losses or losses into the future.

109. Finally for completeness under this heading, I should add that the court was (understandably) not invited by the defendant to dismiss the proceedings under s. 26 of the Civil Liability and Courts Act 2004 (as amended), notwithstanding the wholly unreasonable loss of earnings claim into the future. While the plaintiff was robustly and fairly crossexamined, there was no basis for any such application. The video footage played by the defendant’s private investigator was inconclusive. The court makes no finding that the plaintiff knowingly sought to mislead the court or gave evidence which she knew to be false.

(f) Application of the Guidelines to the plaintiff’s injuries

110. The parties are agreed that this is a claim to which the Personal Injuries Guidelines adopted by the Judicial Council in March 2021 should apply. Applying the guidelines and factoring in the helpful submissions of counsel, I make the following findings.

111. The plaintiff’s psychiatric injuries fall into the €40,000 to €80,000 range for “serious psychiatric damage” on page 14 of the guidelines. The psychiatric adjustment disorder from which the plaintiff suffers interfered with her quality of life and impacted seriously her ability to carry out her work. It also impacted her interpersonal relationships for the past five years and is ongoing. Even at this stage, the prognosis remains unclear.

112. As noted by Clarke J. (as he then was) in Walsh v. South Tipperary County Council [2011] IEHC 503, in accordance with the “eggshell skull” principle, it can on occasion turn out that, due to some weakness or predisposition, a particular injured party suffers much more severe consequences from a relatively innocuous incident than might be expected. If personal injury is a foreseeable consequence of the negligent driving concerned, then the fact that those injuries may be much more severe than might have been expected does not deprive the injured party from an entitlement to recover whatever may be appropriate for those injuries. In short, the tortfeasor takes his victim as he finds her.

113. I consider that the plaintiff’s inability to carry out her working tasks also gave rise to an important loss of amenity for her because the property management work also gave her an opportunity to involve her son with special needs in the day-to-day working tasks as a source of informal occupational therapy for him. The plaintiff mentioned this detail to various doctors including both psychiatrists.

114. However, I agree with the defendant’s submission that the psychiatric injuries do not warrant the higher bracket of “severe” psychiatric damage (attracting a range of €80,000 to €170,000). This is in circumstances where the plaintiff is able to get by and function on a dayto-day basis, does not take psychotropic medication and has never had any psychosis issues or any complications of that nature.

115. In the overall circumstances of the case, I will assign a value towards the top of this band of €75,000. It is clear from the plaintiff’s treating doctors that she effectively became overwhelmed by her psychiatric sequelae and the consequent impact on her mood, and that her condition impacted all areas of her life.

116. The plaintiff’s back and related injuries fall into the bracket of “moderate” back injuries in category (c)(ii) on page 31 of the guidelines. The range of damages for this bracket is €20,000 to €35,000. In my view, the severity of the back injuries warrants an assigned value towards the top of this bracket at €33,000. I will discount this figure by one third to reflect the “role up” and overlap factors mentioned in the caselaw for secondary injuries. The uplift figure to be added to the figure for psychiatric injuries will therefore be €22,000 (being €33,000 less one third).

117. In assigning values towards the top of the damages range for each element, I have also taken account, in a very general sense, of the fact that subsequent to the meeting of the Judicial Council in January 2025, proposed amendments to the Personal Injuries Guidelines were submitted to the Minister for Justice pursuant to section 7(2)(b) of the Judicial Council Act 2019. As noted in Somers v. Commissioner of An Garda Síochána and the Minister for Justice [2025] IEHC 388, the Review Committee concluded that the existing guidelines from March 2021 were out of date and had been overtaken by a number of social developments, including inflation, and that, broadly speaking, the Committee had recommended a 16.7% increase in the valuations.

118. While the Review Committee made that recommendation, it must be recognised that the necessary statutory architecture and procedures have yet to be finalised with respect to the applicability of the new suggested guidelines. The proposed amended guidelines do not have the force of law, and the court therefore regards as the applicable guidelines the current version from March 2021. At the same time, however, it would not be unreasonable for the court to take into account, in a general sense, the inflation that has occurred since that date and to not close its eyes to the important development whereby the body responsible for formulating the guidelines has itself determined that they have not kept abreast of inflation and are now, to an extent, out of date.

119. The plaintiff is also entitled to non-earnings related special damages in the sum of €13,564. The defendant agreed the specials but queried the sum of €4,842.72 claimed in respect of travelling expenses. However, counsel for the plaintiff was careful to ask the plaintiff to confirm that these outlays were incurred and in the circumstances the plaintiff is entitled to recover the total sum claimed for the specials of €13,564.

(g) Conclusion

120. In summary I will award the plaintiff damages in the following sums:

• €60,000 damages for four years past loss of earnings;

• €75,000 in respect of her psychiatric injuries;

• €22,000 uplift in respect of her back injuries (having deducted one third); and

• €13,564 in respect of special damages.

Total: €170,564

121. That is not the end of the exercise, however, because the Court of Appeal made clear in Meehan v. Shawcove [2022] IECA 208 that it may be necessary to stand back from the combination of individual figures in order to assess whether the global aggregate figure for pain and suffering and loss of amenity would be proportionate both to the maximum cap of €500,000 and to awards made to plaintiffs in other cases. Following that approach here, I take the view that the general damages proposed above would produce an outcome that is fair to both sides and proportionate in the sense indicated in the case law.

122. I say that for a number of reasons. First and foremost, the plaintiff’s doctors stated in evidence that the accident has had a radical impact upon the plaintiff’s whole personality and enjoyment of life. She has had serious pain from her back injuries for upwards of five years and this has still not abated. Her injuries have affected her work, leisure, day-to-day living, interpersonal relationships and overall mood and well-being. While some of the plaintiff’s symptoms involve subjective reporting, many of the medical findings are objectively based. There is little doubt but that the plaintiff unfortunately became overwhelmed by the combination of her psychiatric and physical injuries and that this, combined with her life circumstances, resulted in a major spiral downwards in her life. It is to be hoped that with the

conclusion of stress from this litigation and hopefully the abatement of her physical symptoms over time, that the plaintiff will in due course manage to turn a corner.

123. In all the circumstances I am satisfied that the order proposed will achieve fairness and proportionality for both sides.

124. In summary, there will be judgment for the plaintiff in the sum of €170,564.

Signed: Micheál O’Higgins

Appearances: Tom Creed SC and Lorraine O’Sullivan SC instructed by Martin A. Harvey & Co. Solicitors for the plaintiff. John Lucey SC and Cian Cotter BL instructed by TJ Hegarty Solicitors LLP for the defendants.