Court allows appeal on future earnings damages but dismisses claim regarding pension and health insurance deductions.

APPROVED

NO REDACTION REQUIRED

THE COURT OF APPEAL

Court of Appeal Record Number: 2025/132

Neutral Citation Number [2026] IECA 110

Faherty J. Hyland J. McDonald J.

BETWEEN/

MARK KEANE

PLAINTIFF/

RESPONDENT

- AND -

JOHNSON AND JOHNSON VISION CARE (IRELAND)

DEFENDANT/

APPELLANT

JUDGMENT of Ms. Justice Faherty dated the 23rd day of June 2026

1. This appeal arises as a result of an industrial accident which occurred at the appellant's factory in Limerick. For ease of reference, I will refer to the appellant as "the defendant". The respondent (hereafter "the plaintiff") worked as a process technician at the defendant’s factory. The accident occurred on 10 September 2018, at approximately 6am, while the plaintiff was working a night shift on Line 24 in the factory. In the immediate vicinity, the plaintiff’s colleague was working on a pre-cure machine on Line 25 when his hand became trapped under a heavy weight in the machine. Upon hearing the screams of his co-worker for help, the plaintiff immediately intervened as a rescuer to save his colleague's hand. In doing so, he caught his right hand on a metal rail in the machine, forcefully bending his right little finger backwards, causing immediate pain and injury. Despite this, the plaintiff proceeded to position himself in a crouched stance underneath the machine, using his right shoulder to bear the full weight of the heavy load that was pressing down on his colleague's trapped hand. He maintained this position for thirty seconds to a minute. Eventually, with the assistance of other employees using a crowbar and bottle jack, his co-worker's hand was freed. The cause of the accident was the failure of the machine's safety mechanism, which allowed the heavy weight to descend on the plaintiff's colleague's upper limb.

2. The within proceedings were commenced by way of a Personal Injury Summons dated 31 August 2021. The plaintiff pleaded that he suffered a flexion deformity of the proximal interphalangeal joint and an extension injury to the distal inter-phalangeal joint of his right little finger. On 22 November 2024, by way of Updated Particulars of Personal Injuries, he pleaded that in addition to the injury to his right hand he sustained an injury to his right shoulder and PTSD. In essence, the plaintiff’s case was that the accident caused injury to his right little finger, right shoulder and led to his developing PTSD.

3. As we shall see from the High Court judgment, the central issue in the case was whether the plaintiff's right shoulder symptoms were causally related to the accident of 10 September 2018.

4. Before addressing what was decided in the court below and what arises on the appeal, it is useful to set out the trajectory of the plaintiff’s injuries post-accident.

5. Following the accident, the plaintiff was initially of the belief that he had only suffered an injury to his right little finger, which was bent backwards from impact with a metal rail in the machine. He attended University Hospital Limerick on the evening of the accident, where an X-ray confirmed a fracture to his little finger. He was then referred to Cork University Hospital (“CUH”) for further assessment. Under the care of Mr. Seán O'Sullivan, Plastic Surgeon, his hand was placed in a splint and underwent conservative treatment for several months. However, his condition did not improve, and surgery was deemed necessary to correct a flexion deformity that had developed in the extensor tendon of his little finger. On 15 February 2019, the plaintiff underwent surgery at the South Infirmary in Cork which failed to straighten the little finger.

6. By March 2019, a possible ulnar compression syndrome was suspected involving pain radiating to his elbow with no documented mention of shoulder involvement. As a result of his presentation, the plaintiff was referred for nerve conduction studies, which were performed in June 2019 and reported as normal. In November 2019, Mr O'Sullivan wrote to the plaintiff’s general practitioner, Dr. David Boylan, noting that he was “a bit uncertain (about what exactly was) going on”. On 3 December 2019, a CUH clinical note recorded “pain radiating from hand to right elbow/shoulder”. As the High Court duly went on to note, this was the first documented note of any shoulder involvement, though no specific shoulder diagnosis was made.

7. On 1 December 2020, a physiotherapist (Ms. Patricia O’Gorman) treating the plaintiff documented his complaint of increased right arm and shoulder pain after his seven-year-old daughter had jumped on him. This was the first documented mention of pain coming from the plaintiff’s right shoulder.

8. Because of his worsening symptoms, the plaintiff was referred to Professor Dominic Harmon, a pain specialist who arranged for an MRI to be carried out to investigate possible structural pathology in the plaintiff’s right shoulder. The MRI was carried out on 20 December 2021 and revealed early degenerative changes and a probable SLAP (Super Labrum Anterior to Posterior Tear) lesion where the bicep tendon attaches to the top of the labrum.

9. Between 2022 and 2023, the plaintiff received multiple pain management injections to his shoulder and neck, administered by Professor Harmon. In May 2022, at the request of Professor Harmon, he was assessed by Professor Cathal Moran, Orthopaedic Surgeon and shoulder injury specialist. Professor Moran initially recommended a trial of physiotherapy and an injection to manage the plaintiff’s symptoms conservatively. When these treatments proved ineffective, it was decided that arthroscopic surgery was necessary. The plaintiff underwent this in Dublin in mid-September 2022 during which Professor Moran undertook “a distal clavicle debridement” and performed “a bicep tenodesis”. Whilst four months post-surgery the plaintiff still had an irritable and sensitised shoulder, the pre-surgery bicep tendon tenderness was no longer present. Professor Moran administered another injection at this time and described the plaintiff’s ongoing condition as a somewhat sensitised and inflamed shoulder with a tendency towards stiffness or borderline frozen shoulder.

10. When seen by Professor Moran in September 2023, the plaintiff remained unable to go to work because of pain in his arm shoulder and hand. As recorded by Professor Moran, this pain was affecting the plaintiff’s ability to live and provide financial security for his family. His inability to participate in sports was recorded as well as his complaints of difficulty in sleeping and the susceptibility of his right hand and arm to being sensitised which affect not only his ability to engage in daily activities but also his mental health. Professor Moran’s view was that he had done all that could be done for the plaintiff’s shoulder. He recorded the plaintiff’s advice that he had no problem with his shoulder prior to the accident and that he had been “affected heavily” by it since the accident. He advised the plaintiff to continue under the non-operative care of Professor Harmon.

11. As referred to already, in addition to his physical injuries, the plaintiff presented with severe anxiety, depression and emotional distress related to his injuries and inability to work. On 22 April 2024, he was assessed by Dr. Cian Aherne, Clinical Psychologist, who diagnosed him with severe PTSD due to the trauma of the accident and his ongoing pain. His PTSD symptoms included vivid flashbacks, hypervigilance, sleep disturbance, social withdrawal and feelings of helplessness. The plaintiff was prescribed anti-depressant medication and underwent multiple psychotherapy sessions.

12. The trial of the action commenced on 27 February 2025 and ran for ten days. Whilst the action proceeded as an assessment of damages, the defendant disputed any causal relationship between the trauma of the accident and the plaintiff’s right shoulder condition or his alleged incapacity to work beyond 11 September 2020 when it was alleged the plaintiff was offered employment which would have accommodated the admitted injury to his right little finger. Judgment was delivered by the High Court (Coffey J. (hereafter “the Judge”)) on 1 April 2025 ([2025] IEHC 216).

13. The plaintiff was awarded €944,074.46 made up as follows:

1. General damages €135,000.

2. Loss of earnings (together with interest) and loss of pension rights to date €154,605.

3. Miscellaneous special damages to date €24,567.96.

4. Future loss of earnings €408,943.50.

5. Future loss of pension rights to retirement €141,780.

6. Future loss of employer paid health insurance to retirement €67,320.

7. Future pain management procedures €11,858.

The Appeal

14. The defendant appeals from the judgment and Order of the High Court on a number of discrete grounds, hereafter referred to as “the causation issue”; “the future losses issue” and “the Reddy v. Bates issue”. Each of these is addressed below.

15. As is well established in the case law, here, the onus is on the defendant (qua appellant) to establish that a particular finding or connection made by the trial judge is one which cannot be sustained on the evidence. As acknowledged by counsel for the defendant, that is a high hurdle having regard to the principles set out in Hay v O’Grady [1992] 1 I.R. 210. Those principles were summarised by Denham C.J. in The Leopardstown Club Ltd v Templeville Developments Ltd [2017] IESC 50, [2017] 3 I.R. 707 as requiring that:

“An appellate court should be slow to substitute its own inference of fact and is bound by the findings of fact of a trial judge which are supported by credible evidence.”

16. Moreover, the fact that there is some evidence before a trial judge which may lead to a different conclusion does not alter the fundamental applicable principle.

17. As Noonan J. opined in Twomey v Jeral Ltd and Ors [2022] IECA 177: “The starting point in any consideration by an appellate court of the trial judge's assessment of the evidence is… the seminal judgment of the Supreme Court in Hay v O’Grady.” However, he went on to note: “More recent judgments have tended to emphasise the need for trial judges to explain their train of thought, at least to a sufficient degree to enable the appellate court, and of course the parties, to understand how a particular result is arrived at…”

18. Noonan J. was there referring to Doyle v Banville [2012] IESC 25, [2012] 1 I.R. 505, and Donegal Investment Group v Danbywiske [2017] IESC 142 (to which I will return). Noonan J. also quoted extensively from the decision of this Court in McCormack v Timlin and Ors. [2021] IECA 96 where, writing for the Court, Collins (Maurice) J. summarised the state of the authorities regarding the functions of an appellate court, as follows:

“57. However, as I noted in McDonald v Conroy (at para 17), the appellate selfrestraint mandated by Hay v O'Grady has an important quid pro quo, namely the requirement for “a clear statement .. by the trial judge of his findings of fact, the inferences to be drawn, and the conclusions to be drawn.” The decision of the Supreme Court in Doyle v Banville [2012] IESC 25, [2018] 1 IR 505 has developed this aspect of Hay v O'Grady significantly.

58. Of course, the exception must not be allowed to swallow up the general rule. Accordingly, appellate courts must be astute not to permit Doyle v Banville

- inspired complaints of ‘non-engagement’ with the evidence to be used as a device to circumvent the principles in Hay O'Grady: Leopardstown Club Limited v Templeville Developments Ltd [2017] IESC 50; [2017] 3 IR 707, per McMenamin J at paragraphs 109–111. Only complaints that go ‘to the very core, or essential validity, of [the trial judge’s] findings’ will suffice (para 110).

59. What is required of a trial judge is that their judgment ‘engages with the key elements of the case made by both sides and explains why one or other side is preferred’: Doyle v Banville, at paragraph 10. Where a case turns on ‘very minute questions of fact’ as to how an accident or injury occurred – and this case is such a case par excellence – ‘then clearly the judgement must analyse the case made for the competing versions of those facts and come to a reasoned conclusion as to why one version of those facts is to be preferred.’: ibid. The obligation here is essentially functional: elaborate analysis is not necessarily required. What is required is that the parties know why the court concluded as it did or (as it was put by Irvine J in O'Driscoll v Hurley [2015] IECA 158, at para 19) ‘why they won or lost.’”

19. Collins J. went on to describe the judgment of the Supreme Court in Donegal Investment Group plc as an important illustration of the principles he identified. In the latter case, Clarke J. (as he then was) put it as follows:

“8.8 It is, in my view, important to emphasise that the exercise which an appellate court has to carry out when scrutinising the judgment of a trial judge is not one to be conducted in a mechanical way so as to encourage parties to attempt to find some element of the findings of the trial judge which is said to be insufficiently explained. It must be recalled that a judgment is arrived at the end of a very open and transparent trial process. The case will have been fully pleaded, the evidence fully heard and submissions made on both sides. In many cases, and in particular in the Commercial Court, there will be further procedures including the exchange of witness statements and expert reports. Against that backdrop it will often be possible readily to infer why a particular finding was made even if there is no express statement in the judgment. The parties will know how the case ran. An appellate court can read the record of the case. The judgment needs to be read in the light of the case as made and defended before the trial judge.

8.9 But there can be cases where it is just not possible to ascertain, with any reasonable degree of confidence, the reasons why a trial judge adopted a particular approach in relation to an important part of the facts. Where a finding of fact is of significant materiality to the overall conclusion of the case and where the reasons of the trial judge are neither set out in the judgment or can safely be inferred from the run of the case and the structure of the judgment itself, then an appellate court is unable properly to carry out its task of scrutinising the judgment to see whether the findings of fact are sustainable in the light of the principles set out in cases such as Hay v. O'Grady and Doyle v. Banville. In such circumstances an appellate court will have no option but to allow an appeal to the extent appropriate and take whatever further steps may be required in all the circumstances of the case in question.”

Bearing in mind the scope for this Court’s intervention as outlined in the jurisprudence just referred to, and which bears on the causation issue and the future losses issue (the standard of review regarding the Reddy v. Bates issue is discussed later in the judgment), I turn now to the first of the appeal grounds.

The causation issue

20. I should say, at the outset, that the defendant concedes that the plaintiff sustained injury to his right little finger and that he suffered PTSD as a result of the accident. What is in dispute is the Judge’s finding that the right shoulder problem which emerged after the accident was caused by the accident. However, the defendant also concedes that if the Court were to find that the Judge was correct in holding that the plaintiff’s right shoulder injury is linked to the accident, then no issue can be taken with the assessments undertaken by the Judge of any of the three categories of injury of which the plaintiff made complaint. On the other hand, however, if the Court finds for the defendant on the causation issue, then the defendant says that there must then be a consequent reduction in the general damages award to exclude the sum awarded in respect of injury to the right shoulder.

21. Before addressing the defendant’s argument on causation, it is useful to look at the evidence and arguments advanced in the court below.

22. Paragraphs 16-21 of the judgment set out the defendant’s case which was, essentially, that there was no reference to any shoulder injury when the plaintiff attended CUH in September 2018 where his right little finger injury was diagnosed as the primary injury. Moreover, the plaintiff's first recorded complaint of shoulder pain was on 1 December 2020 when he reported symptoms to Ms. O’Gorman. As the defendant highlighted, this was more than two years after the accident. The case advanced by the defendant was that if the accident had caused a significant shoulder injury it would have been documented in the immediate aftermath of the accident or within a reasonable time following the trauma. As indeed noted by the Judge, the absence of any shoulder complaint in the plaintiff’s early medical reports was central to the defendant’s argument.

23. Another of the matters highlighted by the defendant was that Dr. Boylan’s (the plaintiff’s GP) recorded complaints related only to his right little finger without reference to the right shoulder until late 2021 when Professor Harmon referred the plaintiff for an MRI. Furthermore, there was no reference to a right shoulder injury in the notes made by Dr. David Madden, the defendant’s occupational health physician, from 2018 onwards. Whilst Dr Madden's notes for August 2019 and December 2019 documented pain radiating up the plaintiff’s right arm, that, the defendant contended, was by inference pain originating in the right hand. The defendant also relied on the fact that in February 2019, the plaintiff had been examined by Mr. John Rice, Consultant Orthopaedic Surgeon, in respect of a previous and unrelated road traffic accident that occurred in 2014 and he had not then complained of pain in his right shoulder: his complaints at the time related to his neck, back and knee.

24. The defendant also relied on the evidence of Dr. Gareth Quin, Consultant in Emergency Medicine, who emphasised that symptoms of acute trauma, such as a shoulder tear, would normally present either immediately or within days of the injury. Dr. Quin testified that the late onset symptoms suggested no causal connection between the accident in September 2018 and the plaintiff’s shoulder condition.

25. On the other hand, the case advanced by the plaintiff was that his right shoulder injury was directly caused by the workplace accident in September 2018 and that whilst the symptoms were not immediately apparent, they had progressed as a result of the trauma sustained in the accident. He pointed to the absence of symptoms in his shoulder before the accident, the mechanism of the accident, the restricted use of the shoulder post-injury, and expert medical opinion on causation all of which, it was said, supported the link between the accident and his shoulder condition.

26. The plaintiff argued that it was not in dispute that he had no shoulder symptoms in his right shoulder before the accident or that he was unable to use his right shoulder for extended periods thereafter. This, he said, explained why symptoms in his shoulder might not have been fully apparent until much later. Reliance was placed on the fact that his right hand was in a sling from the date of injury until surgery in February 2019 due to the fracture to his little finger and associated pain. Following that surgery, he was again in a sling intermittently and continued to wear a splint on his hand for long periods during his recovery. Thus, the argument advanced in the court below was that because the plaintiff's right arm and shoulder were being used less frequently or not at all, it was entirely plausible that the injury to the right shoulder went unnoticed initially. It was further contended that as the plaintiff began to reintroduce movement, particularly after surgery, he started experiencing pain radiating up his arm which was ultimately found to originate in his shoulder.

27. The evidence of the plaintiff’s GP, Dr. Boylan, was that although he initially had multiple attendances on the plaintiff, these had been for the purposes of certifying his absences from work and not for the purpose of reviewing or treating him clinically. Dr. Boylan testified, however, that shoulder injuries can sometimes develop gradually, particularly when a person is unable to use a limb for an extended period. He also testified that there was no other known injury to the plaintiff’s shoulder between the work accident in September 2018 and the onset of symptoms.

28. The plaintiff also relied on the evidence of Professor Harmon, who testified that the plaintiff's right shoulder symptoms originated from the accident, and who rejected the suggestion that they were caused by degenerative changes due to his age.

29. Reliance was also placed by the plaintiff on the evidence of Professor Moran. Whilst Professor Moran had acknowledged in evidence that multiple factors, including wear and tear, activity levels, or a subsequent trauma, could have contributed to the findings on the plaintiff’s MRI, he ultimately concluded that it was reasonable to believe that the accident played a causative role in triggering symptoms in the plaintiff’s shoulder.

The Judge’s assessment

30. On balance, the Judge preferred the evidence that supported a causal connection between the trauma of the accident and the emergence of symptoms in the plaintiff’s right shoulder. He considered it of importance that the plaintiff had had no complaints or symptoms relating to his right shoulder prior to the accident. This provided a “baseline” for assessing causation “as any subsequent issue with his shoulder must be explained by an identifiable event or process that occurred after the accident”. No such event, however, was identified in the evidence. He found that “the nature and mechanics of the accident provide a clear and obvious mechanism for the shoulder injury”, noting that the plaintiff coming to the aid of his colleague involved his attempting to lift the weight of a heavy part of a machine off his colleague’s trapped arm which exerted “considerable force” through the plaintiff’s upper limb, particularly his right arm and shoulder.

31. He noted that the plaintiff gave “unchallenged evidence” that in taking the weight off the relevant part of the machine, all the pressure was on his right shoulder while he was positioned under the machine in an awkward position. The Judge found this “entirely consistent with the type of traumatic force that can either lead to the partial tear that was seen on the MRI and/or trauma that was likely to have provoked symptoms in his shoulder, if such a tear or degenerative changes were already present”. He found it “highly relevant” that although the plaintiff did not initially report right shoulder pain, his failure to do so was in “the context of a prolonged immobilisation of his right shoulder in a sling”. This immobilisation “likely masked the symptoms of a developing shoulder issue”, as the plaintiff “was not engaged in normal activity that would have prompted the recognition of pain”.

32. The Judge also considered it relevant that it was after the sling was removed and his hand treatment progressed in March 2019 that the symptoms in the plaintiff’s right arm began to emerge, and it became “increasingly apparent” that those symptoms extended beyond his hand and forearm “eventually involving the shoulder”. Moreover, it was clear from contemporaneous medical records that the plaintiff’s treating doctors did not fully understand his symptoms at this time, as expressly acknowledged by Mr. O’Sullivan in his letter of 14 November 2019 to Dr Boylan, in which he stated that he was “a bit uncertain (about what exactly was) going on”. To the Judge, this uncertainty suggested that the plaintiff's medical team recognised that his symptoms did not align with an injury to his finger or hand.

33. In the view of the Judge, the plaintiff’s medical records thereafter “demonstrated a clear trajectory of worsening pain, eventually involving his right shoulder”. He noted Ms. O'Gorman’s documented record on 1 December 2020 of the plaintiff specifically complaining of right arm and shoulder pain “with an upward-facing arrow”, which suggested that the pain had worsened or increased in severity and which, the Judge said, “prima facie suggests that the pain was already present and therefore not caused by the incident of 1 December 2020”. This had been confirmed by Ms. O’Gorman in her evidence when she stated that the incident on 1 December 2020 (which involved the plaintiff’s child jumping on him) had increased muscle spasm in the back of the plaintiff’s shoulder in respect of which he had already reported pain on 17 November 2020.

34. The Judge noted that an MRI of the right shoulder on 20 December 2021 ordered by Professor Harmon after he assessed the plaintiff in November 2021 disclosed degenerative changes and a partial tear of the labrum which suggested “the evolution of symptoms, consistent with a progressive shoulder injury triggered by the accident but masked by prolonged immobilisation and a focus on his hand injury”.

35. The Judge also took cognisance of the evidence of Professor Moran who, although he could not definitively attribute the abnormalities on the MRI to the trauma of the accident, acknowledged the “second hit” phenomenon, where an injury elsewhere on the limb, here, the hand, “can sensitise the shoulder and tip it into symptomatology”. He noted Professor Moran’s acknowledgement that injuries can take time to reach a level that would prompt a referral to a clinician. He noted that Professor Moran had found it “logical” and “reasonable” to conclude that the accident “was likely to have aggravated a tear that was already there, or a tear caused in the accident”. Hence, it was “reasonable”, according to Professor Moran, to conclude that the accident played a role in the “gradual progression of symptoms”.

36. The Judge found it significant that Professor Moran's opinion was independently supported by the opinions of Professor Harmon and the plaintiff’s GP, Dr. Boylan. He noted that Professor Harmon was “unequivocal” in stating that the right shoulder symptoms were directly attributable to the accident and that he had categorically rejected the argument that the degenerative changes were due to age. The evidence of Dr. Boylan was helpful because of his long history of treating the plaintiff and his familiarity with the progression of his symptoms. He noted Dr. Boylan’s emphasis that shoulder injuries can sometimes manifest gradually, particularly when the limb was immobilised for an extended period, as was the case with the plaintiff.

37. In all of the foregoing circumstances, and notwithstanding the counterarguments advanced on behalf of the defendant, the Judge was satisfied, on the balance of probabilities, that “the accident was not only a contributing factor but a crucial and necessary link in the chain of causation of the plaintiff’s shoulder condition”. Consequent on his findings, he characterised the right shoulder injury as one at the upper end of “moderate” in its gravity and assigned to it a value of €55,000.

The defendant’s argument on the appeal

38. The defendant’s primary submission is that there was no credible evidence supporting any connection between the plaintiff’s right shoulder injury and the accident of

10 September 2018. It contends that in reaching the conclusion he did regarding the plaintiff’s right shoulder, the Judge erred in: (i) principally relying on the plaintiff’s evidence which of itself was materially untrustworthy given that he had given false evidence in a material respect which, whilst acknowledged as such by the Judge in the course of the hearing, was not ultimately dealt with in the judgment, and (ii) having no proper regard to the defendant's expert’s evidence, or indeed other expert evidence.

39. This, the defendant’s first and fundamental ground of appeal, is expressed in Ground A of the notice of appeal in the following terms:

• The findings of the Judge were unsupported and contrary to the evidence in finding that there was a causal connection between the trauma of the accident and the emergence of symptoms in the plaintiff’s right shoulder in circumstances where:

(a) Such a conclusion was not supported by the plaintiff’s orthopaedic surgeon Professor Moran;

(b) No substantial complaint about such injury was made during the course of his treatment as appears from the medical records;

(c) The plaintiff had given untruthful evidence that he had not cycled a bicycle in years, which he subsequently accepted was untruthful in crossexamination and which was seen as material by Professor Moran;

(d) No or no appropriate weight was given to the evidence of Dr. Quin, Consultant in Emergency Medicine, that such an injury would have manifested itself within a short period and that it occurs frequently in the context of repetitive sporting activities or occupational activities to vigorous overall activity;

(e) No complaint regarding the plaintiff's shoulder was made when he attended with Mr. Rice, Consultant Orthopaedic Surgeon, subsequent to the index accident in respect of a different claim/accident;

(f) No regard was paid to the evidence of Mr. Colin Riordan, Consultant Plastic Surgeon.

40. Much of what is contended for under Ground A concerns what the defendant describes as significant materially untruthful evidence given by the plaintiff at trial such that, it argues, the threshold for intervention by this Court (as described in the case law) is met in circumstances where that untruthful evidence and the credibility issues to which it gave rise were not addressed in the judgment. In this regard, the defendant points to the plaintiff’s physical activities in the summer of 2020, which included multiple long distance cycling sessions, as evidence undermining any claim that he was suffering from a right shoulder injury before late 2020. In evidence on Day 2 of the trial, the plaintiff had denied engaging in such cycling activity only to concede on Day 3 that he had.

41. As a result, it is said, the Judge was faced with the “conundrum” of deciding whether or not the plaintiff’s evidence that he had no prior problems with his right shoulder, or that his problems developed in March 2019 (after he stopped wearing the sling on his right arm), was correct, particularly where this evidence was relied on by a number of experts, in particular Professor Moran and Professor Harmon.

42. As I have just referred to, the materially untruthful evidence to which the defendant refers was the testimony the plaintiff gave on Day 2 of the trial that he had not cycled a bicycle in years (in other words, his unequivocal rebuttal of any suggestion that he had cycled since the accident). On Day 3, it was put to him in cross-examination that in the period June to July 2020 he had cycled at least 10 to 12 times, including cycling at least 43 km on 1 June 2020 and some 84 km on 2 June 2020. Moreover, on 7 June 2020, he had cycled 105 km at an average speed of 26 km/h. As the High Court transcript shows, on Day 3, the Judge viewed the plaintiff’s evidence that he had not cycled since the accident as “clearly incorrect”, which the plaintiff accepted was the case.

43. In light of this the defendant argues that the Judge was, in the words of Hardiman J. in Shelly-Morris v. Bus Atha Cliath (Dublin Bus) 2002 IESC 74 (Hardiman J. there quoting from his judgment in Vesey v. Bus Eireann [2001] IESC 93) “not obliged, or entitled, to speculate in the absence of credible evidence”. As to the approach that should have been adopted in the court below, counsel for the defendant points to Cloonan v The Health Service Executive [2022] IECA 129 where Power J., with reference to the dicta of Hardiman J. in Shelley-Morris, stated:

“279. What a trial court may and may not do in the face of dishonest evidence was addressed with particular acuity by Hardiman J. in Shelly-Morris. In that case, an exaggerated claim was in issue but what Hardiman J. said applies, with equal validity, to untruthful evidence regardless of its purpose. Reiterating his own earlier observations in Vesey, he stated (at p. 257):

‘that the onus of proof in these cases lies on the plaintiff who is, of course, obliged to discharge it in a truthful and straightforward manner. Where this has not been done ‘a court is not obliged, or entitled, to speculate in the absence of credible evidence’ (per Hardiman J. at p. 199). To do so would be unfair to the defendant.’ He continued (at p. 258):

‘a plaintiff who is found to have engaged in deliberate falsehood must face the fact that a number of corollaries arise from such finding:-

(a) the plaintiff's credibility in general, and not simply on a particular issue, is undermined to a greater or lesser degree;

(b) in a case, or an aspect of a case, heavily dependant (sic) on the plaintiff's own account, the combined effects of the falsehoods and the consequent diminution in credibility mean that the plaintiff may have failed to discharge the onus on him or her either generally or in relation to a particular aspect of the case; and

(c) if this occurs, it is not appropriate for a court to engage in speculation or benevolent guess work in an attempt to rescue the claim, or a particular aspect of it, from the unsatisfactory state in which the plaintiff's falsehoods have left it.’”

The defendant submits that the foregoing dicta is apposite particularly having regard to the evidence given by the plaintiff’s experts in the present case.

44. As this Court observed during the appeal hearing, notably, when the Judge specifically asked for closing submissions on causation (which were made) there was no reference by the defendant in its submissions to the untruthfulness of the plaintiff’s evidence. Whilst acknowledging that the plaintiff’s credibility had not been raised in the closing submissions, counsel for the defendant’s response to the Court’s observation was to point to the fact that the issue had been brought up on at least three occasions during the plaintiff’s cross-examination, and that the Judge himself had accepted that the plaintiff’s evidence that he had not engaged in cycling activity was incorrect. In those circumstances, the defendant’s submission to this Court is that it was thereafter a matter for the Judge to deal with, which was not done. Regarding the latter submission, I would observe that in circumstances where the Judge specifically sought submissions from the parties on legal causation, and indeed gave them sufficient time to prepare for that (as the High Court transcript for Day 7 shows), it is impossible to understand, if the plaintiff’s credibility was an issue for the defendant, why that issue was not addressed in its closing submissions. The emphasis now being placed on the plaintiff’s credibility is at odds with the approach adopted by the defendant in the course of the trial.

45. It is said that the plaintiff’s credibility is important in the context of whether he had symptoms before the accident or whether he developed them afterwards. Whilst the plaintiff’s case is that he developed symptoms in March 2019 after he stopped wearing the sling on his right arm (which is what the Judge accepted), that, the defendant submits, must be juxtaposed not only against his cycling activity in 2020 but also against the pleadings, the prior complaints and the medical reports in respect of all of which the plaintiff made no complaint that his right shoulder was an issue. It is submitted that in light of all those factors, if, as the Judge did, one was to conclude that there was a connection between the accident and the plaintiff’s shoulder symptoms, one would have to have regard to the fact that he gave untruthful evidence which, it is said, was required to be weighed by the Judge, and which was not done since no regard was had to it by the Judge in the judgment.

46. One of the factors the defendant points to in arguing that the plaintiff’s credibility required to be considered is that he did not plead a shoulder injury until 22 November 2024, some six years post-accident. This is in circumstances where the proceedings were commenced in August 2021, the personal injuries summons verified in September 2021, and where the plaintiff had again verified his replies to particulars in July 2022 without pleading any shoulder injury. In July 2022 he served notice of trial. Yet it was only in November 2024 that the defendant was apprised of the shoulder injury. Allied to all of that, is the absence of any reference to a shoulder injury in the medical reports until 2021 notwithstanding that the plaintiff had seen his GP on many occasions up to that time. Insofar as there was any reference in the medical records, the first record is noted by CUH only on 3 December 2019. All of this, counsel for the defendant describes as a “red flag” which went to the credibility of the plaintiff.

47. Reliance is placed on the medical opinion of the plaintiff’s expert Professor Moran, who could not say with any certainty whether the MRI findings were caused by the accident. The defendant argues that this uncertainty, combined with the absence of shoulder complaints in the plaintiff’s earlier medical records, and his extensive physical activity in 2020, made it more likely than not that his right shoulder condition was unrelated to the accident.

48. The defendant takes issue with the Judge’s reliance on the acknowledgement by Mr. O’Sullivan in his letter of 14 November 2019 to Dr. Boylan in which he said that he was “a bit uncertain” about what exactly was going on in relation to the plaintiff’s symptoms at that time, leading the Judge to conclude that that uncertainty “strongly suggests” that the plaintiff’s medical team recognised that his symptoms did not align neatly with an injury to his finger or his hand. The defendant emphasises that the Judge arrived at this

conclusion despite the fact that Mr. O’Sullivan did not give evidence.

49. It is submitted that this Court can draw its own inferences from the fact that Mr. O’Sullivan did not give evidence even though he was the plastic surgeon who operated on the plaintiff on 15 February 2019 and the person who dealt with the plaintiff’s early complaints. This factor, it is said, should have been assessed by the Judge in conjunction with the plaintiff’s clearly untruthful evidence given on Day 2 of the trial.

50. The defendant’s position, therefore, is there was an evidential vacuum in this case by reason of the fact that the only evidence of any shoulder complaints was that from the plaintiff himself. Whilst the plaintiff relies on medical notes which refers to pain radiating up from his right hand, counsel points to the reports from the plaintiff’s GP on 29 August 2019 where no mention is made of that complaint. He further points out that under crossexamination, when put to him that there was no record in any of the doctors’ reports of his right shoulder complaints, the plaintiff had responded that he had told his doctors. Yet Dr. Boylan, who testified he took meticulous notes, did not document any complaint from the plaintiff regarding his right shoulder. It is also pointed out that when the plaintiff was assessed by PIAB on 20 November 2020 there was reference only to his right little finger injury and his psychiatric difficulties. Similarly, when he attended Ms. O’Gorman there was no mention of shoulder pain. This was also the case when he was seen by Ms. Elva Breen, his Vocational Rehabilitation Consultant. It is submitted that the first time the plaintiff’s right shoulder is noted as a significant problem is by Professor Harmon in November 2021, some three years after the accident.

The plaintiff’s submissions on the causation issue

51. The plaintiff’s starting point is that there is no error on the part of the Judge in the manner he determined the causation issue. He disputes the contention that there was no reference to a right shoulder injury in the early medical records. Whilst there were no records made by the Dr. Boylan in the immediate aftermath of the accident, it is not the case, the plaintiff says, that there was no medical record of his shoulder complaint given that he was under the review of Mr. O'Sullivan in CUH. Almost immediately after the surgery on his hand, the import of the letter written by Mr. O'Sullivan to Dr. Boylan was that the plaintiff had pain going up his right arm to his elbow. Moreover, by 3 December 2019, he was listed by the medical team in CUH as having pain from his hand “to the elbow/shoulder”.

52. It is accepted that the plaintiff was incorrect in the evidence he first gave about his cycling activities, and it is accepted that in that regard, the Judge would have to be careful when assessing his evidence. The question, however, counsel for the plaintiff says, is whether the findings the Judge made about the plaintiff were dependent on the veracity of the plaintiff himself. Counsel asserts that they were not and submits that the findings of fact made in the court below were fully supported by the medical records and other medical evidence available to the Judge.

Discussion and Decision on causation

53. It is undoubtedly the case that the plaintiff sustained an injury to his right little finger and PTSD as a result of the accident. There was also no dispute but that in the immediate aftermath of the surgery on 15 February 2019 on his finger there was pain going up the plaintiff’s right arm, as documented by Mr. O’Sullivan's team at CUH. Nor is there any dispute that the plaintiff was complaining of pain in his arm/shoulder on 3 December 2019, as again documented by CUH’s medical notes which recorded “pain radiating from hand to right elbow/shoulder”.

54. It is, however, the case, as the Judge noted, that the plaintiff’s first documented mention of pain coming from his right shoulder was on 1 December 2020 when a physiotherapist (Ms. Gorman) treating the plaintiff documented his complaint of increased right arm and shoulder pain after the plaintiff’s seven-year-old daughter had jumped on him. (Notably, Dr. Quin, an expert called by the defendant, was unequivocal in his evidence that this event could not have caused the plaintiff’s shoulder issues). In any event, the defendant highlights the two-year delay before anything at all was said by the plaintiff in relation to his right shoulder, and it points to the fact that there was no pleading in respect of same until November 2024. All of this, it is said, must be viewed in conjunction with the fact that the Judge relied on the plaintiff's own evidence without having had regard to the material untrustworthiness of some of that evidence. Hence, the nub of the defendant's complaint regarding the causation issue is that the Judge simply accepted the plaintiff’s evidence and what flowed from it without commenting on his credibility.

55. In my view, this is palpably not a case of the Judge simply accepting the plaintiff’s evidence. Indeed, it is difficult to see how the plaintiff’s injuries can be said to be reliant solely on his account of them given that they are in fact described in the medical records, as outlined earlier in this judgment. Moreover, it has never been said that the plaintiff was untruthful about the pain he was reporting, or that he was mistaken about the onset of pain in his right shoulder. More fundamentally, when the plaintiff underwent his MRI, it transpired that there was a physical cause for his pain. This, to my mind, diminishes any issue regarding the plaintiff's credibility and the complaint that it was not addressed by the Judge in his judgment.

56. Insofar as the defendant complains that the Judge did not deal with or address the plaintiff’s credibility, the fact of the matter is that the Judge arrived at his decision based on factors which in large part did not depend on credibility. In the first instance, he premised his decision on the proposition that there was no complaint regarding the plaintiff’s right shoulder prior to the accident, based on both what the plaintiff, and his GP, Dr Boylan stated. Furthermore, subsequent to the accident of 10 September 2018, Dr. Boylan, as he testified to, heard nothing to indicate that the plaintiff had had another accident that could account for the pain in his right shoulder. Those factors were a strong component in the plaintiff’s favour, in my view.

57. Importantly, the Judge had regard to the nature and component of the accident itself which, again, did not depend on the plaintiff’s credibility. There was no dispute at the trial but that the plaintiff had to exert extraordinary force on his shoulder in order to free his coworker who was stuck in the machine.

58. Another important factor noted by the Judge was the period of the plaintiff’s right arm immobilisation. There is again no dispute but that the plaintiff had his shoulder in a sling in the immediate aftermath of the surgery on his right hand, and that he was immobilised for significant periods of time thereafter. Also of importance is that after the sling was removed and the plaintiff’s hand treatment progressed, the symptoms in his right arm began to emerge, all of which were duly documented, first by Dr. O’Sullivan and later in December 2019 by the CUH medical case conference, as previously referred to. As the Judge notes in his judgment, thereafter, the medical records “demonstrated a clear trajectory of worsening pain”, again, not something that was dependent solely on the plaintiff’s evidence.

59. Allied to all of this is the evidence of the plaintiff’s medical experts which was that his right shoulder symptoms were caused or triggered by the accident on 10 September 2018.

60. As was the case in the court below, on the appeal, both parties rely on Professor Moran’s (the plaintiff’s expert) evidence in support of their respective positions. The defendant posits that Professor Moran’s evidence was premised on his reliance on the truthfulness of the plaintiff's account and it asserts that the Judge should have assessed Professor Moran’s evidence on the basis that the plaintiff had given untruthful evidence in a significantly material respect. That Professor Moran was reliant on the plaintiff’s account of matters is said by the defendant to be demonstrated by the following exchange in the course of Professor Moran’s examination-in-chief on Day 7 of the trial:

"Q. The evidence has also been that there was no other trauma to the shoulder subsequent to the accident. In your view what is the likelihood of the shoulder being related to the accident?

A. It is a challenging one. I suppose, I have to take Mr Keane’s word. You know when I see these sort of cases from time to time, as a medical person I find it difficult to always be sure. If I see someone - you know, I have a video evidence of a particular type of injury that I can correlate to a well-defined tear or something like that, that answer is quite clear-cut for me. In this case on the one hand I would say I - and I’ve explained this… - on the one hand I have no reason to doubt if Mark has said that he had no problem before the incident but he had afterwards, but on the other hand - and so that's from the symptoms the clinical presentation prospective - but on the other hand if the next man was to ask me: ‘but, Cathal, could you see these findings on a man, the MRI findings you know of the impingement and things like, on a shoulder that hasn't been through this type of incident?’ That would be the case, I would have to say: ‘Yes, you could’. I am sure that there are many of us walking around with that type of wear and tear. The only conclusion I can draw in this type of situation, because I deal with it on a daily basis, is that the incident in some way has brought it from an asymptomatic, non-symptomatic situation to being painful.…”

61. Under cross-examination, Professor Moran was questioned as follows:

"Q. There is mention of clicking, et cetera et cetera… four years after the accident. Isn’t that correct?

A. Yes, well that’s certainly the first time I saw him. Yes.

Q. Yes, the narrative that you were given regarding the accident and any symptoms were from himself. Isn’t that correct?

A. Correct. …

I mean that that is where I take most of my information from. Probably the referring doctor obviously might have mentioned some things but I don’t tend to go to the referring doctor’s letter when I am dictating my report. The way I tend to do it is that I take my history, I have the MRI and I dictate live in front of the patient…”

62. Professor Moran was also cross-examined about the plaintiff’s cycling activities post-accident, and it was put to him that the plaintiff had cycled some hundred kilometres on a single day. The following exchange took place:

[Professor Moran] “…Typically, what I have to say to you, I am just thinking of the top of my head here, I don’t know when would have been the last time in my 10 years of practice as a consultant shoulder surgeon when somebody would come to see me and their main issue - you know as a cyclist with shoulder pain, so that might be useful.

Q. No, no, that is not the point I am making. The point I am making is his presentation to you with significant shoulder problems, if one had those problems prior to this?

A. Excuse me.

Q. Not that the injury was caused by the cycling?

A. Yes.

Q. I am simply asking if one had a significant shoulder problem what would the impact of cycling for two, three or four hours at a time when you’re out of the saddle, climbing or whatever?

A. Yes, I think most people would probably find that a little challenging; wouldn’t they? I mean, yes. Would you say they couldn’t do it? Cycling by its nature probably is a sport that - is an endurance sport. There is a lot of mental resolve, things like that in it. But I think it would be fair to conclude that if it is uncomfortable in everyday life an examination is probably going to be uncomfortable in the saddle.”

63. Asked again in the course of re-examination whether, as a matter of probability, he believed there was a connection between the accident and the plaintiff’s subsequent shoulder problem, Professor Moran replied:

“…I find it hard to go beyond the patient or the Plaintiff’s words that he didn’t have a problem before and he had afterwards. I can’t really get beyond that, do you know what I mean, I am trying to be fair. It is like he had no big tear. He has some degenerative findings. Some gradual progression of symptoms. I feel it is reasonable to conclude that the accident played a role in it. I couldn’t conclude to you that it is the only thing…”

64. The defendant describes Professor Moran’s evidence as weighing in its favour particularly in circumstances where the witness acknowledged that one could not ignore the temporal gap between the accident and the onset of the plaintiff’s symptoms in circumstances where in the middle of that temporal gap there was a level of cycling activity in which the plaintiff was able to engage and which he initially denied. This, counsel says, is significant because the Judge relied on the evidence of Professor Moran, as evidenced by what is stated at para 33 of the judgment, and because, in turn, Professor Moran had relied entirely on the history the plaintiff had given him.

65. In my view, however, as the judgment under appeal clearly shows, neither Professor Moran nor the Judge were reliant simply on the plaintiff’s history of his complaints. Additionally, there was not only the fact and circumstances of the accident of 10 September 2018 as a likely cause or trigger for the plaintiff’s shoulder symptoms but there was also the underlying physical tear in his right shoulder which the MRI revealed and which indeed was available to Professor Moran, as he noted in his answer to a question in cross-examination on Day 7.

66. Insofar as the evidence of Professor Moran is said by the defendant to be equivocal, I do not accept that the equivocation was such that the Judge was not entitled to rely on Professor Moran’s view that it was reasonable to conclude that the plaintiff’s shoulder injury was triggered by the accident. I accept the plaintiff’s contention that Professor Moran’s main concern was that he was being asked in cross-examination to say definitively whether the SLAP lesion disclosed by the MRI was caused by the accident or aggravated by the accident. Whilst he could not answer that definitively, he was in a position to say that the plaintiff had a sensitised shoulder and that he had inflammation in the area and, as I have just alluded to, that it was “reasonable to conclude” that the accident played a role in his shoulder injury.

67. At the end of the day, the import of Professor Moran’s evidence regarding the plaintiff’s right shoulder symptoms was that the tear shown by the MRI was likely to have been aggravated by the accident. This is clear from following exchange during his examination-in-chief:

"Q. Insofar as the tear is concerned, whether it be a tear that was already there or a tear caused in the accident is it likely to have been aggravated by the accident?

A. I think that is logical. That is certainly a reasonable conclusion. Likely is a strong word but it would appear that if you had a problem with a joint and that it was aggravated. I mean it would seem reasonable to think the symptoms could progress. One of the challenges here of course, in fairness to everybody, is that there seems to be a discrepancy, or a temporal, you know from the time of the injury to the time the shoulder being noted as a problem there seems to be a passage of some time. Equally you couldn’t say that that means there was no relationship between the incident and the actual problem. I mean things can take a while to develop to the level that you bring it to the attention of a consultant or surgeon.” (Emphasis added)

In light of Professor Moran’s observations, I consider that the defendant’s emphasis on the lapse of time between the accident and the onset of symptoms in the plaintiff’s shoulder cannot be a determinative factor in this case (as indeed the Judge also concluded), particularly where there were other factors (referred to below) which complemented Professor Moran’s view that the accident triggered the plaintiff’s shoulder symptoms. It is also noteworthy that elsewhere in his evidence, Professor Moran had adverted to the concept of a “second hit phenomenon” where an injury elsewhere on the limb (here, the hand) can sensitise an already sensitised limb or shoulder.

68. It is important to bear in mind that the Judge did not decide the issue solely by reference to Professor Moran’s evidence. He was satisfied that that evidence was independently supported by that of Professor Harmon. Notably, Professor Harmon was unequivocal in stating that the plaintiff’s right shoulder symptoms originated from the accident. Furthermore, there was credible evidence given by the plaintiff’s GP, Dr. Boylan, who explained why the plaintiff’s shoulder did not present as symptomatic in the immediate aftermath of the accident. Additionally, the Judge had the plaintiff’s medical records which supported Dr. Boylan’s hypothesis, and which documented “a clear trajectory of worsening pain”, as the Judge put it at para. 32 of his judgment.

69. For the reasons set out above, I am satisfied that none of the factors upon which the Judge based his conclusion that the plaintiff’s right shoulder complaint was related to the accident were dependent on the credibility of the plaintiff, even accepting, as the Judge did in the course of the trial, that the plaintiff gave “incorrect evidence” on Day 2 of the trial.

70. Nor do I see any basis to draw any adverse inference from the fact that the plaintiff did not call his plastic surgeon, Dr. O’Sullivan, to give evidence in circumstances where there was more than sufficient evidence before the Judge for him to conclude as he did in relation to the plaintiff’s right shoulder.

71. It is also said by the defendant that the Judge failed to have regard to the evidence of Dr. Quin, Consultant in Emergency Medicine, who assessed the plaintiff in June 2024 in respect of his finger injury. Asked in evidence about the plaintiff’s right shoulder symptoms, Dr. Quin testified that in his experience “injury in general, and in particular injury of a force significant to cause structural damage to soft tissue or bone would typically result in the immediate or the very early onset of symptoms, principally pain”. He continued:

“On that basis, had the abnormalities on Mr Keane’s MRI of right shoulder been caused by the trauma, the subject of the accident, I would expect right shoulder pain to have been an early and permanent feature of his presentation. In particular, I would not expect symptoms related to an acute injury to be delayed for seven years in their onset. Similarly, had the abnormalities noted on the MRI predated the subject accident (as they may well have done) and symptoms triggered by the accident, I would expect the symptoms to have begun either immediately or shortly after the accident”.

72. Insofar as the defendant contends that no regard was had to Dr. Quin’s evidence, I fail to see how the defendant can advance that argument in circumstances where the Judge expressly refers to his evidence at para. 19 of the judgment. Whilst it is the case that in his “Assessment of the evidence” at paras. 27-35 inclusive, the Judge does not refer specifically to Dr. Quin, or his evidence, that does not mean that the Judge has not taken account of all the evidence that was tendered in respect of the causation issue. As said by Noonan J. in Twomey, “appellate courts are entitled to, and do in fact, assume that the trial judge has taken account of all the evidence in reaching a decision”. That assumption is easily made here given the contents of para. 19 of the judgment. In essence, to paraphrase Noonan J. in Twomey, the fact that in his assessment of the evidence the Judge did not expressly allude to Dr. Quin does not mean that he ignored it. Applying the logic of Noonan J. in Twomey, it must follow from the Judge’s acceptance of the evidence of Professor Harmon, Professor Moran and Dr. Boylan that he implicitly rejected the evidence of Dr. Quin. Hence, I concur with the view of Noonan J. that “[t]his cannot be reasonably characterised as a failure by the trial judge to engage with the evidence”.

73. I have already referred to Professor Moran’s qualification as a shoulder expert. I consider that it is noteworthy that the defendant had the opportunity to get a shoulder expert if it wanted one but did not do so. Notably, in his report of 13 June 2024 for the defendant, Dr. Quin expressly disqualified himself from giving evidence about the plaintiff’s shoulder and advised the defendant to get a shoulder expert.

74. All in all, I am satisfied that the Judge had a sufficiently valid basis upon which to conclude that “on the balance of probability, the incident was not only a contributing factor but a crucial and necessary link in the chain of causation causing the plaintiff’s shoulder condition”. In my view, there can be no question but that the parties knew why the Judge concluded as he did in respect of the causation issue.

75. As we see from the case law to which I have referred earlier in this judgment, it is well established that the findings of fact made by the Judge are not reviewable by this Court unless there was a clear failure on his part to engage with the issues. To borrow from MacMenamin J. at para. 108 of his judgment in Leopardstown Club Ltd, it follows from the authorities (including Hay v O’Grady) that appeal courts “are bound by the trial judge's findings of fact, where they are based on cogent evidence”. Accordingly, appeal courts “should be slow to adopt inferences other than the trial judge’s, again where they are based on factual material”.

76. Here, the Judge’s findings of fact that led to his concluding as he did on causation were based on cogent evidence such that this Court is precluded from interfering with those findings barring, of course, “clear non-engagement with essential parts of the evidence”. As MacMenamin J. puts it: “‘[n]on-engagement’ with evidence must mean that there was something truly glaring, which the trial judge simply did not deal with or advert to, and where what was omitted went to the very core, or the essential validity, of his findings.”

77. In circumstances where the Judge clearly engaged with the salient factors pertaining to the causation issue, the defendant has not established any “glaring omission” and so, in my view, the “high threshold” to which MacMenamin J. adverts in Leopardstown Club Ltd has not been met by the defendant in this case. As the case law makes clear, an appellant is not entitled to ask the Court to engage in a “piece-by-piece” analysis of the evidence in an effort to show, on appeal, that the trial judge might have laid more emphasis on, or attached more weight to, the evidence of one witness, or a number of witnesses, or one document, or a number of documents, rather than others on which he or she relied. Were the Court to do so, it would, as MacMenamin J. stated, make the task of appeal courts too onerous. More fundamentally, it would undermine the function of the trial judge whose job it is to determine facts untrammelled by interference by an appellate court save where the threshold established in the case law has been met. That threshold has not been met here on the causation issue.

78. Here, all the primary findings of fact made by the Judge on the causation issue were supported by the evidence. He was entitled to find that the plaintiff’s shoulder injury was documented, albeit perhaps not in the pristine fashion that the defendant might have wanted, but it was undoubtedly recorded, the ultimate record being the MRI which showed the physical problem in the plaintiff’s shoulder. He was entitled to prefer the evidence of Professor Harmon over that tendered by the defendant. He was equally entitled to derive support for his finding from the evidence of Professor Moran in circumstances where the latter gave evidence in his capacity as an expert in shoulder injuries, particularly where no such expert was called by the defendant. These were just some of the matters with which the Judge engaged when considering the causation issue, and in doing so he analysed (or can be assumed to have analysed) both sides’ cases. At the risk of repetition, there was no glaring omission in the analysis conducted by the Judge. Whilst it might be suggested that his failure to mention the veracity of the plaintiff in the judgment is a glaring omission, for the reasons already outlined I am satisfied that that is not the case here.

Summary

79. The obligation on the Judge as mandated by the case law was to identify the issue he had to determine, have regard to the evidence tendered, form a view on that evidence and then give reasons for his conclusions. That the Judge did. At the outset of the judgment, he identified the central issue which was whether the plaintiff’s right shoulder symptoms were causally related to the accident on 10 September 2018. Bearing that in mind, he proceeded to set out the defendant’s case including its contention as to the absence of any shoulder complaints in the plaintiff’s early medical records. Thereafter, he set out the plaintiff’s case and went on to assess the evidence and gave his decision with reasons. Whilst, as we see, on the appeal much emphasis was laid by the defendant on the failure of the Judge to address the “incorrect” (as the Judge himself described it) evidence given by the plaintiff in relation to his cycling activities, ultimately, in my view, the failure to attach any weight to this “incorrect” evidence cannot be dispositive of the causation issue. This is so for the reasons I have set out at para. 65 above. Ground A is not made out in any respect.

80. I turn now to Ground B of the notice of appeal.

The future losses issue

81. The issue of future loss of earnings is dealt with by the Judge at para. 53 of the judgment. He noted that the plaintiff's claim for loss of future earnings was on the basis that his injuries prevented him from returning to his pre-accident employment and would significantly impact his earning capacity going forward. He found that the evidence in support of that claim came from the plaintiff, his rehabilitation consultant (Ms. Breen) and the medical experts called on his behalf.

82. Ms. Breen assessed the plaintiff on two occasions, namely May 2021 and May 2024. In her view, his injuries significantly impaired his ability to perform manual work or any role involving repetitive hand use, heavy lifting, or prolonged physical exertion. This included the plaintiff’s employment with the defendant, his previous work as an electrician or work on construction sites. She envisaged, however, that he could return to work with the defendant in some other role other than as a process technician.

83. In 2024, following the plaintiff's shoulder deterioration and the PTSD diagnosis, Ms. Breen assessed his overall work capacity as further diminished. Her May 2024 report noted that the plaintiff “continues to struggle with significant dysfunction and pain in his right upper limb. [The defendant] has not facilitated his return to work and he is now in a very vulnerable situation. He has been awarded the Invalidity Pension, which demonstrates his level of permanent disability and inability to return to competitive employment”. In evidence on Day 5 she noted that the plaintiff had commenced a full-time IT administration course with NLN (National Learning Network) in August 2024 to be completed in 2026. Her recommendation was that he would transition to a less physically demanding career, suggesting a phased return to work in an administrative capacity, call centre, data entry or customer service role, each offering a salary range of approximately €25,000 - €30,000/€30,000-€35,000 per year. She noted that he would be 45 years old by the time he completed the IT course, and that he had been out of competitive employment for eight years, which would affect his ability to secure well-paid employment.

84. Ms. Breen was asked about what Ms. Vine (the defendant's rehabilitation consultant) had said in in her report. Ms. Vine did not give evidence, but her report was admitted. Ms. Vine’s report was extensive. It noted that the plaintiff had completed his final project on assistive technology in 2021 as part of his Bachelor of Engineering Manufacturing Technology degree. It is common case that prior to the 10 September 2018 accident the plaintiff had engaged upon this work-sponsored degree. However, because of his accident, he had not been able to complete this programme until 2021. Ms. Vine noted his interest in assistive technology. Whilst she accepted that he would not return to a role as a process technician, she considered that using his transferable knowledge as an electrician, and his interest in assistive technology, the plaintiff would be qualified for a role as an assistive technology sales representative in the €35,000 - €40,000 per annum gross salary range, albeit she acknowledged that it may be difficult to secure such a role as there were limited positions.

85. Ms. Breen’s response was that the role in question was “a very niche role” for which a person would have to have a lot of experience. Such a role was very difficult to secure. She agreed, however, with Ms. Vine that the plaintiff may be competitive for administrative roles in the manufacturing sector, work which would command similar income levels to the administrative roles she herself envisaged for the plaintiff.

86. Ms. Vine’s report had also discussed a project management role for the plaintiff. She had documented the plaintiff's interest in such roles, and she opined that his recent qualification in manufacturing technology would assist him in meeting the criteria for a project management position albeit “he would need to demonstrate that he had project management experience to lead and manage projects within an organisation”. She went on to state: “I recommend that if he wishes to pursue a career in project management in the future, if he considers completing a project management course and if he is applying for administrative positions in the manufacturing sector this may be a stepping stone into getting approximately 4 - 5 years’ experience demonstrating project management skills and competencies in the area.”

According to Ms. Vine, a project manager was likely to earn in the region of €55,000 - €70,000 gross per annum. She recommended a phased return to employment for the plaintiff and felt he had a long career ahead of him.

87. When asked about Ms. Vine’s view that a project management role may be available to the plaintiff, Ms. Breen’s view was that such a role was “unachievable” given that he had been out of work for over six years and lacked the relevant experience.

88. Assessing the plaintiff’s future losses in light of the evidence, the Judge noted the plaintiff's evidence that he had intended to work with the defendant until retirement at age

66. It was agreed that but for his accident he would have been promoted by the defendant to level 22 – Band 2 by February 2025, and that his gross pay as of March 2025 would have been €69,322.16. The Judge also noted that the plaintiff's medical experts unanimously agreed that he was unfit for physically demanding work. At para. 57, he stated: “In assessing the plaintiff's claim for future loss of earnings, I accept the unchallenged evidence of the rehabilitation consultant that the plaintiff is only capable of engaging in non-physically demanding sedentary work, with an expected salary range of €25,000 - €35,000 per year.”

89. He went on to state that he was also satisfied that, having regard to his previously strong work record, evident resilience and clear intelligence, the plaintiff was likely to reenter the workforce and achieve earnings of approximately €30,000 per annum up to age

66. Accordingly, he considered it appropriate to reduce the capital value of the plaintiff's future loss of earnings by applying an average earnings figure of €30,000.

90. At para. 58, he had regard to the evidence of the plaintiff's actuary, Mr. Nigel Tennant, who calculated the full actuarial value of what the plaintiff would have earned to retirement but for his injuries as amounting to €988,758. The Judge went on to deduct from that sum the actuarial value of the plaintiff's residual earning capacity, assessed, as noted above, on the basis that he was likely to earn the equivalent of €30,000 per annum, resulting in a net future loss of earnings in the sum of €481,110. Thereafter, after applying a deduction in accordance with the principles set out in Reddy v Bates of 15%, the Judge awarded the plaintiff a net future loss of earnings of €408,943.50.

91. Ground B of the notice of appeal asserts that the findings of the Judge in awarding the plaintiff loss of earnings and pension rights to date and into the future were unsupported and contrary to the evidence. It is said that the Judge erred in:

(a) Failing to have any or any proper regard to the evidence of Mr. Colin Riordan, Hand Surgeon, concerning the plaintiff’s incapacity.

(b) Awarding the plaintiff a large portion of his claim for future loss of earnings contrary to the evidence, which said finding was excessive and disproportionate.

(c) Failing to engage with or to have any regard to the evidence of Ms. Sinead Vine, Consultant Vocational Assessor, who gave evidence on behalf of the defendant about the plaintiff's interest in project management roles, his qualification and his ability to earn, and instead finding that the plaintiff’s Vocational Assessor’s (Ms. Breen) evidence that the plaintiff could only engage in non-physically demanding sedentary work at €25,000- €35,000 was unchallenged.

92. The nub of the defendant’s argument on this ground is that in awarding the plaintiff the sum of €408,943.50, the Judge failed to have any regard to the report of Ms. Vine, the defendant's rehabilitation consultant. It contends that there was no consideration of Ms. Vine’s report which gave a range of alternative employment options for the plaintiff notwithstanding that the report had been admitted in evidence and indeed referenced at para. 54 of the judgment.

93. The defendant says that the difficulty with the future loss of earnings award is that no regard is given to the plaintiff's future ability and past qualifications. It is also said that the Judge had no regard to the evidence of Professor Moran who stated in evidence that most people with the plaintiff's injury would be able to rehabilitate themselves to a level that they could live their life somewhat normally. In those circumstances, the defendant contends that the award for future loss of earnings was excessive given that the plaintiff was a qualified electrician and had pursued third level qualifications. Yet the High Court nominated a range of just above the minimum wage for the remainder of the plaintiff's working life.

94. Essentially, the defendant’s complaint revolves around the Judge’s acceptance of “the unchallenged evidence” of Ms. Breen that the plaintiff was only capable of engaging in non-physically demanding sedimentary work with an expected salary of €25,000- €35,000, in circumstances where Ms. Vine in her report had outlined a more positive employment path (including a project management role) for the plaintiff. It contends that on the basis of Ms. Vine’s analysis of the plaintiff requiring five years to fully upskill in order to be in a position to take up a project management role (and assuming his earning capacity is limited to €30,000 gross in the period 2025-2030), then, at €55,000 per annum from April 2030 onwards, the award in respect of future loss of earnings should have been €233,133. At €60,000 per annum, it should have been €192,588, and at €70,000 per annum €119,588.

95. Whilst acknowledging that he could not say if in her answers in cross-examination Ms. Breen was on the same page as Ms. Vine regarding the plaintiff’s project management employment prospects, counsel for the defendant submits that what is of significance is that the issue of the plaintiff securing a project management position was raised with Ms. Breen and, hence, this matter was a “live issue” for the High Court to assess since the range of potential earnings (€55,000 - €70,000) for such a position would have put the plaintiff close to the earning capacity he had enjoyed previously, which was €69,000 per annum.

96. The defendant points out that while Ms. Vine was not saying the plaintiff could achieve a project management role straightaway, she considered him someone who was qualified and competent to pursue such a role. Counsel emphasises that irrespective of whether Ms. Vine was right or wrong in her view, the issue here was that no assessment of the matter was conducted by the Judge and so the defendant does not know whether Ms. Vine’s evidence was considered at all. Assuming, as the defendant must, that the evidence was considered, it is submitted that there is nothing in the judgment to say why it was rejected, or why the court took the view that the plaintiff's earning capacity was €30,000 per annum, particularly when this stands in contra distinction to the report of Ms. Vine. It is submitted that while it may well be that had the matter been considered by the Judge he would still have preferred the plaintiff's rehabilitation consultant’s evidence, there should still have been a consideration of Ms. Vine’s report. Hence, the case advanced by the defendant is that it is left in a position where it does not know why the plaintiff's earning capacity in the future was determined to be €30,000 per annum.

97. The first observation I would make is that there is no basis for the defendant to assert that the Judge did not have regard to Ms. Vine’s report since he clearly references it at para. 54 of the judgment. Whilst, in my view, the optimum approach would have been for the Judge to have afforded more consideration to the contents of the report in his judgment, as the case law says, appellate courts are entitled to assume that the trial judge has taken account of all the evidence in reaching a decision.

98. In any event, in my judgement, the defendant has not advanced any persuasive argument regarding the Judge’s treatment of Ms. Vine’s report. The issue of the possible employment of the plaintiff in a project management role apart (and I will return to that), the fact of the matter is that in terms of what else the plaintiff could or could not do in the future, there was little difference between the views expressed by Ms. Breen and Ms. Vine as to what salary range the plaintiff might secure. As we see, Ms. Breen essentially concurred with Ms. Vine that he could earn a salary of €25,000-€35,000 per annum. Ms Vine’s projection for the plaintiff assuming employment in an assistive technology sales representative role was €35,000- €40,000 per annum.

99. Hence, insofar as both experts envisaged administrative type roles for the plaintiff, I am satisfied that it was well within his competence for the Judge to plump for Ms. Breen’s mid-point figure of €30,000 in circumstances where he was entitled to prefer (as he obviously did) Ms. Breen’s view on the plaintiff’s likely future prospects including (presumably) that even a role as an assistive technology assistant at €35,000-€40,000 per annum might be difficult for the plaintiff to secure given that it was, as Ms. Breen testified to, “a very niche role”, and which even Ms. Vine described as difficult to secure.

100. That then brings me to the defendant’s complaint that the Judge failed to consider Ms. Vine’s opinion that the plaintiff’s recent qualifications in manufacturing technology would assist in his suitability for a project management role. It is the case that Ms. Vine’s views on this issue were not expressly addressed in the Judge’s analysis. That, notwithstanding, I fail to see how the defendant can ask the Court to interfere with the Judge’s assessment. At the risk of repetition, appellate courts are entitled to assume that the trial judge has taken all the evidence into account in reaching a decision. Moreover, a trial judge is entitled to prefer the evidence of one expert over another. As we see, Ms. Vine’s view was put to Ms. Breen by the plaintiff's counsel on Day 5, in the following terms: “Q. Just another role, or the final role, Ms. Vine discusses is a project management role. Just, first, allied to the question about Mr Keane's experience, I mean to go into project management, I mean project management is fairly generic?

A. It is very broad term project management.

Q. So, I mean, qualifications wise for Mr Keane to go into project management what would he need to do?

A. From my experience project management usually happens –people move into project management working in that area. So if you are in a pharmaceutical company, you work your way up to go from line lead, you work your way up to project manager. That happens in construction firms, engineering firms, architectural firms. To manage a project, you have to work your way up have done the ground work to get there. So it is a very broad term ‘project management’, and everyone in all jobs manages mini projects. I would need further detail about what project management job she is referring to.

101. Asked about the reality of the plaintiff becoming a project manager, Ms. Breen stated: “I think the reality is that he hasn't worked since this injury in 2018, he has been out of the workforce for over six years. To say that he can go back into a project management role having no relevant experience for the last six years I think it's unachievable.”

102. By preferring, as he very clearly did, the evidence of Ms. Breen, the Judge must be taken to have accepted her view that a project management role was unachievable for the plaintiff for the reasons she outlined in her evidence, and by so doing, he must also be taken as having rejected the contrary view expressed by Ms. Vine in her report. In short, Ms. Vine accepted that the level of currently achievable salary was similar to that suggested by Ms. Breen. Ms. Vine also speculated that the plaintiff’s career might progress to a higher level over 5-6 years, thus increasing his salary. Ms. Breen explained in cross-examination why she considered Ms. Vine’s view in this regard was incorrect. As Ms. Vine did not give oral evidence, she did not counter Ms. Breen’s evidence. In other words, the Judge was left with the unchallenged evidence of Ms. Breen as to why she thought Ms. Vine’s hypothesis as to the plaintiff’s future prospects was unachievable. In the circumstances, I do not think that the Judge’s approach was at odds with what Noonan

J. suggests at para. 33 of Twomey, namely that “where an issue of controversy is to be decided in a particular way, it would naturally be preferable in the normal course of events for the trial judge to indicate, even in a general way, the evidence on which the judge relies to found a conclusion”. Whilst it might have been optimum had the Judge explicitly confirmed that he was accepting Ms. Breen’s dismissal of Ms. Vine’s hypothesis, in the circumstances, I think it can be readily inferred. In summary, therefore, the approach adopted here “cannot be reasonably characterised as a failure by the trial judge to engage with the evidence”, to borrow the phraseology of Noonan J. in Twomey.

The alleged failure to consider the evidence of Mr. Riordan

103. It is further contended on behalf of the defendant that in awarding the plaintiff the loss of earnings sum he did, the Judge failed to have regard to the evidence of Mr. Riordan, Hand Surgeon, concerning the plaintiff’s incapacity. Mr Riordan gave evidence on Day 6 of the trial. He had examined the plaintiff on 22 August 2023 and prepared a report. Mr. Riordan had been requested to assess the plaintiff's hand as this was the only complaint to that point in time which the plaintiff had pleaded had arisen as a consequence of the 10 September 2018 accident. However, when he examined the plaintiff Mr. Riordan became aware of the shoulder complaints but was not aware of those complaints as a feature of the accident. As to the plaintiff's hand injury, Mr. Riordan felt that the injury was not associated with any great deal of loss of hand function which he estimated at 3% primarily going to affect grip. According to Mr Riordan, the original (hand) injury was unlikely to pose any significant difficulties in the future.

104. Whilst the defendant complains about the Judge’s failure to reference Mr. Riordan’s evidence when assessing the plaintiff’s future earning capacity, I fail to see how this matters in circumstances where Mr. Riordan accepted in evidence that at the time he examined the plaintiff he was complaining of quite marked symptoms in the shoulder and that he was not then fit to return to his pre-accident work. Moreover, I note that at para. 50 of the judgment, when assessing the plaintiff’s claim for loss of earnings and pension losses to date, the Judge clearly referenced Mr. Riordan’s opinion that the plaintiff was fit to go back to work as a process technician. The Judge did not accept this view and gave his reasons for not accepting it at paras. 50-51 of the judgment. It cannot be said that the Judge failed to engage with Mr Riordan’s testimony.

The Judge’s failure to take account of a previous award for loss of future earnings

105. In addition to the matters just discussed, the defendant takes issue with another aspect of the future loss of earnings computation. It references the fact that in February 2019 the plaintiff received compensation for injuries received in a road traffic accident that occurred in 2014. The damages award for that accident was broken down as follows: General damages €90,000, hip replacement and loss of earnings to date €42,353, loss of earnings into the future €42,000, agreed special damages €10,000, all of which totalled €184,353. It should, however, be noted that whilst the decree in February 2019 was for €184,353, the matter was settled on appeal for a figure of €145,000.

106. The submission of the defendant on this appeal is that the sum of €42,000 loss of earnings figure overlaps with the period in issue in the within proceedings, either in earnings to date or earnings into the future, such that when computing the plaintiff’s future loss of earnings the Judge should have deducted the €42,000 future loss of earnings sum he received in 2019. It argues that absent any deduction of the €42,000 awarded in February 2019 from the future loss of earnings sum awarded by the Judge, the plaintiff is being doubly rewarded.

107. At the appeal hearing, issue was taken by counsel for the plaintiff with the defendant's submission that the Judge had not taken account of the €42,000 figure in circumstances where, it was said, this issue had not been raised by the defendant in the course of the trial. Whilst it was accepted that it had been open to the defendant to raise the issue in the court below, the fact of the matter is that it was not raised. The plaintiff further objects on the basis that the matter was not raised in the defendant’s notice of appeal or written submissions on the appeal.

108. Dealing firstly with the plaintiff’s argument that the matter does not form part of the appeal, in my view, the grounds of appeal do in fact encompass the defendant’s complaint to a degree sufficient for this Court to consider the argument being advanced by the defendant. Whilst the complaint in not expressly set out in Ground B, sub ground (b) thereof clearly asserts that the Judge erred in awarding the plaintiff a large portion of his claim for future loss of earnings contrary to the evidence.

109. Whilst it is the case that there was no specific reference by the defendant in the court below to the fact that in 2019 the plaintiff was the recipient of a future loss of earnings award that straddled part of the timeline in issue here, it is a fact that at the opening of the case on behalf of the plaintiff, the Judge was specifically apprised by the plaintiff’s counsel that the plaintiff was the beneficiary of a judgment of €184,353 in respect of a previous accident which included a figure of €42,000 for future loss of earnings. Indeed, the February 2019 court order was handed in to the Judge by counsel for the plaintiff. To that extent, therefore, the issue was specifically before the High Court by virtue of it having been raised at the outset of the trial by counsel for the plaintiff.

110. Turning now to the substance of the defendant’s argument, in my view, there is merit in what the defendant contends. I agree that in computing the plaintiff’s future loss of earnings as €481,110 (i.e. the loss of future earnings sum before any Reddy v. Bates deduction was applied) the Judge ought properly to have made an adjustment to that sum by deducting therefrom the €42,000 future loss of earnings awarded to the plaintiff in 2019 in respect of his previous accident.

111. In my view, it would be unjust if the 2019 future loss of earnings award of €42,000 were ignored in the computation of the future loss of earnings arising from the September 2018 accident since a failure to take account of it would mean that the plaintiff is being doubly rewarded for his future loss of earnings.

112. In summary, therefore, other than the failure of the Judge to take account of the €42,000 sum just mentioned, and subject to a variation I propose making to the Reddy v. Bates percentage applied by the Judge to the future loss of earnings sum (discussed below), for the reasons set out above, the defendant has not made out any other basis for this Court to interfere with the Judge’s treatment of the plaintiff’s claim for loss of future earnings.

The award of €141,780 for loss of pension rights

113. As can be seen from Ground B, the defendant also takes issue with the €141,780 awarded to the plaintiff for future loss of pension rights to retirement.

114. The actuarial report prepared by Mr Tennant on 10 September 2024 was premised on the assumption that the plaintiff would not return to work. With regard to future loss of pension contributions, Mr Tennant stated as follows: “We therefore calculate that an amount of €139 per week could be valued in respect of the loss of employee and employer pension contributions into the future. We calculate the appropriate multiplier in valuing the loss to age 66 to be €1,020 when applying this multiplier gives a capital value of €141,780.”

115. As the judgment shows (para. 60), this sum was awarded to the plaintiff in full.

116. The defendant submits that the Judge did so notwithstanding his finding that the plaintiff would go back to work and would earn €30,000 per annum. It is submitted that in those circumstances, a pro rata deduction should have been made from the €141,780 figure. Based on the plaintiff’s earning capacity at €30,000 gross per annum, the defendant’s contention is that the proper award by way of compensation for future loss of pension contributions is €80,422.85.

117. The plaintiff objects to any pro rata deduction to the future pension losses figure. He argues (albeit in the context of whether a Reddy v. Bates deduction should apply to the future pension losses sum) that the question of whether such a deduction should apply was never raised by the defendant “good, bad or indifferent” at the trial. He says that had the point been raised, it might have required evidence having to be called about the incidence of employer funded pension schemes in the type of employment the plaintiff was likely to secure in the future, which, he says, is a far cry from the type of job he had with the defendant.

118. It is also said that had there been such an application, the plaintiff would have argued that the strength and security of his employment with the defendant, and the likelihood that that would not be replicated in any future employment he may secure, would be a relevant consideration for the Judge given that the defendant, much like State employers, had offered a robust sick pay scheme and preserved pension benefits during periods of illness. In my view, the parties’ competing arguments on appeal cannot be decided on the appeal in circumstances where neither the issue of a deduction to future pension losses nor the competing arguments on appeal were raised in the court below. Had the issue of a deduction to the future pension losses been raised, the plaintiff may or may not have been successful in resisting any such deduction. The essential point is that the High Court would have had an opportunity to adjudicate on the competing arguments and then make a

decision. However, no such opportunity arose because an argument such as is now sought to be canvassed was not made in the court below. In any event, the plaintiff’s future earnings prospects have now been assessed as being at the €30,000 per annum level. That being the case, and in the absence of any argument having been raised by the defendant in the court below, I am satisfied that no pro rata deduction should be made from the sum awarded to the plaintiff in respect of future pension losses.

The award of €67,000 for loss of future health insurance

119. In his report of 10 September 2024, the plaintiff's Actuary, Mr Tennant, had calculated the value of future health insurance costs at age 66 as €81,600. In the course of the trial it was pointed out that there had been a miscalculation by Mr Tennant of the number of the plaintiff's children and so the sum was reduced to €67,320. This was the sum ultimately awarded by the Judge for future loss of employer paid health insurance to retirement.

120. The health insurance contribution in issue was an instrument of the plaintiff's contract of employment. The premise of Mr Tennant's report was that if the plaintiff does not work, he would lose the benefit of the employer paid health contribution, which the Judge accepted.

121. The defendant takes issue with the €67,320 award. It does so again on the basis that the Judge held that the plaintiff would work into the future and earn €30,000 gross per annum. It emphasises that there was no evidence given at trial as to whether the plaintiff would or would not, in fact, receive any health benefits in the future once he resumed full employment. This, it says, is in circumstances where the onus was on the plaintiff to prove his case (O’Daly v Bus Eireann [2025] IECA 282 refers). The defendant’s complaint is that no regard was had to this by the Judge, resulting in a full allowance given to the plaintiff for loss of employer's health insurance payments into the future.

122. In essence, therefore, the defendant’s position is that in awarding the sum he did, the Judge failed to have regard to his own finding that the plaintiff would work again in the future and that he would earn €30,000 gross per annum. Consequently, the defendant says the sum of €67,320 should be deducted from the overall award.

123. In my view, the defendant has not advanced any persuasive argument such as warrants interference by the Court with the Judge’s assessment. The fact of the matter is that in his employment with the defendant, the plaintiff enjoyed the medical insurance benefits described in the reports of Ms. Breen and Mr. Tennant. As already alluded to, his future earnings prospects have now been assessed as being at the €30,000 gross per annum level. As I have said, the defendant did not adduce evidence that an equivalent medical insurance scheme to that he enjoyed with the defendant would be available to the plaintiff in the salary sphere for which he is now qualified. In those circumstances, I am satisfied that no pro rata deduction should be made from the sum awarded to him in respect of future health insurance losses.

The Reddy v. Bates issue

124. Ground C of the notice of appeal asserts that the Judge erred in failing to apply the principles in Reddy v. Bates properly or at all in determining contrary (it is said) to the evidence that only a 15% deduction was appropriate. The defendant advocates for a 25% reduction.

125. The defendant further complains that the 15% deduction was only applied to the loss of earnings sum and not, as it should have been, to the heads of damages by way of loss of pension rights and health insurance losses.

126. The principal argument advanced by the defendant on this ground is that the plaintiff had a multitude of health issues. It points to the plaintiff’s own admission that he had neck and low back problems arising from his 2014 accident which resulted in lumbar discectomy surgery in 2023. He was also an alcoholic. It is contended that whilst he is successfully managing his addiction, this remains, however, a potential risk factor for future employment stability.

127. I note that the issue of a Reddy v Bates deduction was canvassed in the court below on Day 9 of the trial. In response to the Judge’s request that he be addressed on the appropriate deduction, counsel for the plaintiff argued for the lower percentage of 15% (it having been agreed between the parties that the range fell between 15% and 25%). He alluded to the fact that the plaintiff was a qualified electrician and that he had upskilled since the accident to the extent that he had a university degree. He pointed to the plaintiff’s previous employment with a multinational company who had been in the country for decades. He contrasted the plaintiff’s position with that of a construction worker who might be at severe risk of losing their employment in the event of a recession.

128. The defendant’s submissions pointed to the health consequences of the plaintiff’s previous accident in 2014 including his neck and hip problems and low back injury, and the surgery he had in 2023 arising from the back injury. It was said that those issues “would have to play a part in relation to the length of time he would be employed by the Defendant”.

129. The Judge assessed the matter at para. 59 of the judgment, in the following terms: “In assessing the plaintiff's likely future loss of earnings, I must also apply a deduction in accordance with the principles set out in Reddy v Bates, to reflect both the general vicissitudes of life and the specific uncertainties to which this particular plaintiff is exposed. While he has, to his great credit, successfully managed his alcoholism to date, it remains a potential risk factor for future employment stability. Additionally, his history of lower back and hip problems, introduces a variable that could impact his ability to work, irrespective of the injuries sustained in the accident. However, it is also relevant to acknowledge that the plaintiff was in secure employment with a reputable multinational in a relatively senior position, supported by trade and level 7 qualifications. Balancing these considerations, I consider that a 15% reduction of €72,166.50 should be applied to the plaintiff's net future loss of earnings to reflect the realistic possibility that, even in the absence of the accident, his career trajectory may have been subject to some degree of disruption or limitation due to these pre-existing vulnerabilities. This yields a net future loss of earnings of €408,943.50.”

130. The defendant's contention on the appeal is that having regard to the factors the Judge himself identified, these should have swung the balance to the higher level such that the requisite Reddy v. Bates reduction to the future loss of earnings sum should have been to the order of 25%, with the result that the future loss sum awarded by the Judge of €408,943.50 (which reflects a 15% reduction) is reduced to €360, 832.50.

131. Counsel for the plaintiff opposes any increase in the 15% deduction in respect of the loss of future earnings sum. He contends that the Judge granted both parties an opportunity to make submissions on Reddy v Bates. He says that risk factors, such as they were, were identified in those submissions and considered by the Judge in the context of the plaintiff in his own evidence having capped his loss of earnings to the age of 65, the status of the defendant company, and the plaintiff's capacity to return to work after his previous accident and to continue in employment up to the date of the incident complained of.

132. The plaintiff further says that the defendant’s submissions fail to take account of what was specifically addressed by the Judge at para. 59 of the judgment where there is reference to “… the specific uncertainties to which this particular plaintiff is exposed”, and where the Judge then expounds on the plaintiff's history of alcoholism, along with his history of back and hip problems. It is submitted that the defendant was left in no doubt as to why the Judge considered that the appropriate deduction was 15%.

133. In essence, the plaintiff’s position is that based on the foregoing and in the absence of the defendant adducing any actuarial evidence in the court below, the Judge was fully entitled to apply the Reddy v Bates deduction in the order of 15% to the future loss of earnings sum.

134. Arising from the parties’ submissions, the question for the Court is whether there is any basis upon which it can be said that the Judge applied too low a deduction to the future loss of earning award of €481,110.

135. Before addressing this question, it is, I believe, apposite to have regard to the observations of Noonan J. in Twomey. At para. 55, he observed: “Deductions for Reddy v. Bates contingencies have been an everyday feature of our law for decades where, seemingly, courts are left at large to make such deductions as they consider appropriate, almost always without the benefit of any real evidence as to how the relevant percentage should be arrived at.”

136. He went on to refer (at paras. 56 and 57) to the “spectrum” of appropriate percentages to be applied depending on the facts of the case, and to the fact that when making deductions (which may invariably apply to periods or decades into the future) courts have tended to focus on the economic circumstances prevailing at the time of the assessment. He opined that the best a court can do when seeking to apply a Reddy v. Bates deduction into the future is to “assume that economic prosperity and the associated labour market will wax and wane on a cyclical basis, as it always has done”.

137. As Noonan J. also observes, the Reddy v. Bates deduction is not solely concerned with issues concerning the employment market. He cites the dictum of Irvine J. in Walsh v. Tesco Ireland Limited [2017] IECA 64 to the effect that, as referred to in Reddy v. Bates, the relevant deduction for future loss of earnings must also take account of “the exigencies of life”. Returning to the issue of a “spectrum” of deduction, based on his analysis of the jurisprudence on the issue, Noonan J. considered that the spectrum contemplated in the case law “is probably in the range of 15% to 25%”.

138. Quite clearly, the Judge considered the plaintiff’s circumstances to lie at the lowest end of that spectrum when applying the Reddy v. Bates deduction to his future loss of earnings award. The question that arises for consideration here is whether, while fully accepting the assessment of the evidence by the Judge in relation to the personal situation of the plaintiff, there is nevertheless scope for intervention by this Court. I am satisfied that there is such scope in circumstances where the Court is being called upon to review not the findings of fact made by the Judge, but rather whether those findings of fact permitted the

conclusion arrived at by the Judge having regard to the applicable legal test (here, the Reddy v. Bates scale). As said by Henchy J. in Northern Bank Finance v. Charlton [1979] I.R. 149 at p. 192, “if the question of fact that was answered in the court of trial does not depend on a choice of alternatives arising out of divergent testimony, but amounts to a

conclusion in the nature of an evaluation of proved or admitted facts, the court of appeal will consider itself free to rely on its own judgment as to whether the evaluation made by the tribunal is correct or not…”.

139. Adopting the approach set out by Murray J. in A.K. v. U.S. [2022] IECA 65, in this case I afford limited deference to the decision of the trial court by beginning my analysis from the firm assumption that the Judge was correct in the findings or inferences he has drawn, and it is only where I am satisfied that the Judge clearly erred in a material respect that interference is warranted. Here, however, I am satisfied that the Judge erred in a material respect regarding where he has placed this case on the Reddy v. Bates scale. That scale ranges from 15% to 25% and is one, as Noonan J. observes in Twomey, that “has become firmly embedded in convention and practice”. Notably, neither party argued that the Reddy v. Bates deduction should be outside the aforementioned spectrum.

140. Here, a legal judgment has been made by the Judge based on his findings of fact. In my view, given the legal test (which requires, essentially, in all cases, a 15% “baseline” reduction for “the exigencies of life”), the facts as found do not permit the conclusion drawn by the Judge that the deduction should be 15% since the factual matrix which presented to the Judge went well beyond this baseline. Hence, a 15% reduction was too low not least by reason of the fact of the plaintiff’s previous accident in 2014 and his resulting health conditions arising from that accident, and his alcoholism. Regarding the latter factor, whilst, as indeed the Judge stated, the plaintiff was dealing admirably with his addiction, as the Judge also noted, the plaintiff’s alcoholism nevertheless remains “a potential risk factor for future employment stability”. Accordingly, I agree with the defendant that the plaintiff had “unique circumstances” sufficient to propel him further along the Reddy v. Bates baseline of 15%. Accordingly, the Judge erred in a material respect in failing to move the plaintiff beyond the 15% baseline. In my view, the combined effect of the factors mentioned above when looked at in conjunction with the deduction that naturally must follow for the “general vicissitudes of life”, required the application by the Judge of the midpoint of the 15% to 25% Reddy v. Bates spectrum (i.e. a 20% reduction in the loss of future earnings award).

141. Accordingly, taking into account my earlier finding that the €42,000 future loss of earnings award made to the plaintiff in 2019 should be deducted from the Judge’s computation of €481,110 for future loss of earnings in this case (which results in €439,110 by way of damages for future loss of earnings), and applying then a 20% Reddy v. Bates deduction to that figure, the net future loss of earnings award in this case is €351,288.

A Reddy v. Bates deduction to the plaintiff’s future pension and health insurance losses?

142. I turn now to the defendant’s argument that the Reddy v. Bates reduction ought to have been applied to the sum awarded for the plaintiff's future pension losses and to the sum awarded for loss of health contributions. In my view, this is not an argument that can be maintained on the appeal. I agree with the plaintiff that the defendant is attempting to rely on matters that were not canvassed during the trial. That being the case, they cannot be argued at this remove, in the absence of any application by the defendant in the court below that the Reddy v Bates reduction should be applied to future pension losses or indeed the health insurance sum.

Summary

143. The defendant’s appeal is allowed to the extent indicated in the judgment, namely the sum of €42,000 is deducted from the future loss of earnings sum of €481,110, resulting in a revised future loss of earnings figure of €439,110 to which a Reddy v. Bates deduction of 20% applies, thereby yielding a net future loss of earnings sum of €351,288. The balance of the appeal is dismissed for the reasons already set out in this judgment.

144. Accordingly, the heads of damages in this case now comprise:

1. General damages €135,000.

2. Loss of earnings (together with interest) and loss of pension rights to date €154,605.

3. Miscellaneous special damages to date €24,567.96.

4. Future loss of earnings €351,288.

5. Future loss of pension rights to retirement €141,780.

6. Future loss of employer paid health insurance to retirement €67,320.

7. Future pain management procedures €11,858.

Which results in a total award of €886,418.96.

145. The Court will in due course advise the parties of the date for the making of final orders and to address the question of costs.

146. As this judgment is being delivered electronically, Hyland J. and McDonald J. have indicated their agreement therewith and the order I have proposed.