Supreme Court allows appeal, increasing damages for eye injury and future loss of earnings.

[2006] IESC 37

THE SUPREME COURT

[S.C. No. 423 of 2004]

Denham J.

Hardiman J.

McCracken J.

Between

James Kenny

Plaintiff/Appellant

and

John Cowley

Defendant/Respondent

Judgment delivered the 21st day of June 2006 by Denham J.

1. Appeal

This appeal relates to an assessment of damages. James Kenny, the plaintiff/appellant, hereinafter referred to as the plaintiff,

submitted that the High Court erred in the assessment. Liability is not an issue.

2. Collision

The case arose out of a collision with cattle. The plaintiff was driving his car on the evening of 10th April, 2000, at Rathlee, Easkey,

Co. Sligo, when his car collided with cattle, owned by John Cowley, the defendant/respondent, hereinafter referred to as the

defendant, which had strayed and blocked the highway.

3. Special Damages

The matter came before the High Court on the 16th and 20th July, 2004. Special damages were agreed at €4,480.

4. General Damages

At issue in the High Court were general damages, a claim arising out of physical injuries and a claim for loss of earnings in the future.

No claim was made for loss of earnings to the date of the High Court hearing.

5. High Court judgment

The High Court stated that the plaintiff had a perfectly genuine claim against the defendant for his injuries sustained in the accident.

The learned High Court judge expressed concern in relation to a claim for €550,000 for loss of employment into the future in view of

the employment history of the plaintiff prior to the accident. The High Court stated, quite correctly in my view, that the plaintiff was

to be treated under the "eggshell" rule. The learned High Court judge accepted that the plaintiff suffered pain in the past and would in

the future. It was noted that the plaintiff made no claim for loss of wages in the past. The High Court agreed that there was an

entitlement for loss of wages in the future based on evidence, which, however, the learned High Court judge considered was not good

enough and he did not allow for loss of wages in the future. As to general damages, for the injuries sustained to date and into the

future, the High Court allowed a sum of €90,000. Special damages being agreed at €4,480, there was a judgment for €94,480.

6. Grounds of appeal

Against that judgment the plaintiff has appealed to this Court. Ten grounds of appeal were filed, as set out below:

(a) The learned Trial Judge failed to have proper regard to the evidence adduced by and on behalf of the plaintiff in

respect of his injuries and losses.

(b) The learned Trial Judge erred in fact and in law in assessing general damages for the past and the future in the

amount of €90,000.00 given the uncontroverted evidence of the effects of the serious injuries on the plaintiff.

(c) The learned Trial Judge erred in fact and in law in rejecting the plaintiff’s claim for:

(i) loss of future income for the plaintiff and or in the alternative;

(ii) loss of opportunity in the future for the plaintiff.

(d) The learned Trial Judge was wrong in law in refusing to apportion the award of general damages into categories for

general damages to date and general damages into the future.

(e) The learned Trial Judge did not give the plaintiff a fair trial on any of the relevant issues before the Court.

(f) The learned Trial Judge erred in law and in fact when referring in his judgment to a claim of the plaintiff for

€550,000.00 and in his determination that “the plaintiff has chosen to hoodwink” the Court.

(g) The learned Trial Judge erred in law and in fact in rejecting the evidence of the Vocational Assessment witness

Consultant and in his assessment of her evidence.

(h) The learned Trial Judge erred in law and in fact in his judgment in finding and referring to the possibility that “this case

would have been settled on Friday had an honest and reasonable approach been adopted by the plaintiff” when there was

no evidence or suggestion by the defendant or by the plaintiff to the learned Trial Judge of same.

(i) The learned Trial Judge erred in his treatment of and the weight which he attached to the questions of Senior Counsel

for the Defendant in cross-examination of the plaintiff and particularly when the defendant failed to call the witnesses

purportedly available to the Defendant to support the allegations of Senior Counsel for the defendant in cross-

examination.

(j) The learned Trial Judge erred in law and in the exercise of his discretion when disallowing the costs of the second day

of the trial and the expense of a witness and proposed witness for the Trial particularly when:

(i) the trial only commenced at 2 p.m. on Friday the 16th of July 2004 through no fault of the plaintiff.

(ii) the trial was interrupted by the learned Trial Judge for approximately ten minutes on Friday the 16th July 2004 in

order to ensure that the parties agreed a timescale for the adducing of evidence from the Vocational Assessment

consultant,

(iii) the trial ended at 2 p.m. on Tuesday the 20th July 2004 when Junior Counsel for the defendant without any

advance warning indicated that no evidence would be called on behalf of the defendant.

7. Issues

7.1 Special Damages

There is no issue as to the special damages in this case; they remain at the figure of €4,480.

7.2 General Damages

The issue for the Court is one of general damages. The general damages relate essentially to loss and damage arising from the injury

to his eye and loss of earnings into the future.

7.3 Damage to eye

First I shall consider the issue relating to the damage to the plaintiff's right eye. As the learned trial judge stated, the plaintiff has to

be treated under the eggshell principle. This arises because of the previous problems with his left eye. Prior to the accident the

plaintiff had a lazy left eye and he depended on his right eye. His right eye was damaged consequent on the accident, and he has

now very limited sight in it. In addition he has double vision which affects his left eye and gives him dizziness. He uses a blank

darkened lens to cover his right eye as this cuts down on the double vision and dizziness. He is now dependent on the left eye.

However, the sight in this eye is not good.

The uncontroverted medical evidence before the High Court was that:

"This patient has a background of high myopia or shortsight and a lazy left eye (amblyopia i.e. impaired sight). He

sustained a whiplash injury which was followed two days later by a retinal detachment in the right which required surgical

repair. He has been left with impaired vision in the right and existing impaired vision in the left. He has a constant large

right upward deviation of the eye, resulting in constant doublevision and an unsightly appearance.

He reports being able to function as a mechanic prior to the accident but now his vision is poor in both eyes and he has

doublevision in them as well and both of these factors impair his ability to work, so he has become unemployed and

cannot drive.

The injury itself did not directly cause the retinal detachment but did so indirectly by the whiplash injury causing severe

shaking of the head and disturbance of the vitreous jelly in the right eye leading to a tear in the retina. The patient was

already at risk from retinal tears because of his high myopia but probably would not have developed a retinal detachment

if he had not sustained a whiplash injury. The doublevision is partly due to his impaired sight and pre-existing lazy eye.

However, the restriction of movement of the right eye and the drifting upwards of this eye is also a well-known

complication of retinal detachment surgery. I did not have the opportunity to assist this man's motility prior to his retinal

detachment or his injury, so I cannot describe the relative contributions of the various factors involved in this. At any

rate, all of the factors involved are related directly or indirectly to his injury.

He is now developing a cataract in the right eye, which will further impair his vision in this eye increasingly over the next

couple of years.

I do not believe the vision in his previously lazy left eye will improve spontaneously because the impairment of vision in

the right eye is not sufficiently severe to allow the left eye to take over.

This patient has severe visual impairment in his previously better eye (the right eye) as a result of retinal detachment

following a whiplash injury. In addition to impaired vision in each eye, he has debilitating and constant doublevision. This

has prevented him from working or driving. It is a constant source of difficulty for him in everyday life. Closing one eye to

get rid of the doublevision further impairs his overall vision by effectively making him one-eyed. The better of the two

eyes has poor vision of a level no better than 6/12, which would be barely acceptable for driving, if it were present in

both eyes. The outlook for visual rehabilitation is poor. Vision in the right eye will not improve further in my view and that

in the left is unlikely to do so either. His doublevision may be amenable to surgical correction but it may require several

operations and there is approximately a 50-60% chance of him achieving single vision with or without the use of additional

prisms in his glasses.

The reason for this poor success rate is that eye muscle problems developing after retinal detachment surgery are

notoriously difficult to solve and the fact that his vision is poor in both eyes mitigates against him achieving binocular

vision, which requires good visual acuity in each eye.".

Thus the plaintiff is essentially in the position where an eye has been lost, and he is relying on the vision of an eye with poor sight,

and he suffers from double vision.

As to the current value of a case where an eye is lost, I sought to refer to the P.I.A.B. Valuation Book. However, I understand that it

does not quantify damages for the loss of an eye, as yet. From previous experience with such cases it appears to me that a figure of

€90,000 is significantly too low a figure for such damage and loss, especially in the circumstances of the plaintiff.

In addition, the plaintiff suffered other less serious injuries which should be considered. These injuries were soft tissue injuries to his

back and neck and a depression which followed the events.

Consequently, considering both the eye and other injuries I am satisfied that there was an error in the level of damages awarded by

the High Court.

7.4 Future loss of earnings

The second major issue is the value of the loss of the plaintiff's future earnings. In the High Court counsel for the defendant objected

to an actuarially based claim.

The learned High Court judge held that on the authority of Reddy v. Bates [1983] I.R. 141 that the basis for mounting an actuarial

claim had not been made out and he deemed the defendant’s objection sustained. It was directed that Mr. Logan not be called to

give evidence. The learned High Court judge stated that this did not mean that there was not a claim into the future, but he held it

would not be on actuarial evidence.

I would affirm this decision of the High Court. There was no grounds laid for an actuarial approach to the assessment.

The position as to loss of earnings in the future has to be considered in all the circumstances of the case. It was stated by the

plaintiff that following serious problems with his kidneys in 1995/1996 he had largely ceased to work and only 'tipped around' mending

engines locally for friends for which he received occasional payment. The evidence was that for three or four years prior to the

accident the plaintiff was in receipt of unemployment benefit. However, it was the plaintiff's case that, in 1999 he had taken all the

necessary steps to fit out a workshop and commence the business of marine engine servicing and repair with assistance from his

father-in-law and a loan from a local bank.

On behalf of the defendant it was submitted that the plaintiff did not work before the accident and was now doing as much work on

engines as he did before the accident.

The evidence established that the plaintiff was not a trained mechanic. Thus a figure of €573,300, based as it was on a trained

person's work, bears no relationship to the situation. The Assessor's Report of Ann Doherty concluded:

"Save for the accident he could now be working on servicing different engines. Seasonally there are good opportunities for

service/repair of marine engines. It is difficult to give a precise level of earnings. The minimum hourly rate if €7.00 and the

minimum rate for a mechanic is €15.50 per hour. If working on boats the rates are substantially higher."

It was on foot of such a conclusion that the figure of €573,300 was promulgated

In her report Ms. Doherty noted that the plaintiff finished formal education with his Group Certificate. She gives his employment

history, 1986 - 1991, as part-time fishing with his father, and 1990 - 1991 as ‘Carthys Road and WaterWorks’. It is important to note

that she did not state that he was a mechanic. Rather the report recites:

“Over the years he had a keen interest in engines, marine and cars, and gained experience with his cousin. His father-in-

law had given him a workshop to start up his own business, repairing engines. He had bought tools and equipment. In

1999 he joined the Coast and Cliff Rescue and was advised he would be sent on courses to deal with boat mechanics etc.

He is also paid for call outs”.

In evidence she stated it was not necessary to have a certification as a mechanic to do the work envisaged, that there would be

good seasonal business - on the recreational side and for the fishing. She gave evidence that the loss of the right eye, the loss of

the eye on the dominant side, would decrease his field of vision and affect his manual dexterity, which would affect him in areas of

work. As to work in general in the Killala area, she was of the opinion that his chances were not great. She was of the opinion that

with the loss in his right eye, and his difficulties with the left eye, and his geographic location, the effects of the accident were

catastrophic, that his chances of getting work were very poor. However, this evidence has to be viewed in the circumstances that he

had not been working for years prior to the accident, largely owing to unrelated illness.

Thus, the analysis of loss and damage as regards future earnings is hampered by the previous history, lack of precise information as

to his work, the fact that he was ill for several years and off work, the fact that he was receiving State benefit prior to the accident,

and the unhelpful evidence as to a mechanic's earning power which bore no relation to the plaintiff's situation.

The picture painted is of a man who has not been working consistently, who planned to establish a business but of which there was

no evidence, a man who because of illness has been receiving State benefits, but who did do some bit of work, variously described -

such as 'tipping around'. Altogether it was not evidence which established a consistent work pattern of regular paid work. There was

evidence that the plaintiff did the odd job before the accident. It may be that he did very few jobs. The evidence was that ‘he did

lots of tipping around’, ‘he did the odd job’. The evidence was not such as would base an actuarial report. Consequently, as stated

previously, I am satisfied that the learned trial judge was correct in holding that a basis for mounting an actuarial claim had not been

made out. The learned trial judge pointed out, correctly in my view, that this did not mean that there was not a claim into the future.

Thus, it is necessary, on the evidence before the Court, to consider this aspect of the claim.

While the plaintiff gave evidence of taking initial steps to set up a business, there was no evidence of it being established. I am

satisfied that the evidence showed that the plaintiff did some sporadic work which paid him irregular sums of money.

7.5 Hoodwinked

The High Court stated that the plaintiff had chosen to hoodwink the Court with a claim for loss of earnings into the future of

€550,000. However, on reading all the evidence, I am satisfied that the plaintiff's evidence did not advance such a claim. The figure

arose from an assessor's report which was partly based on incorrect information - that the plaintiff was a mechanic.

This concern by the High Court, that it was being hoodwinked, highlights the need for care by legal advisers of a plaintiff in

preparation of a case. The law as to exaggerated claims is a matter which should be addressed at the preparation stage by legal

advisers with a plaintiff. I am not satisfied that there was any collusion by the plaintiff so as to make an exaggerated claim. While

there was absolutely no basis for a claim for €550,000, or indeed any significant sum of money for loss of future earnings, in the

circumstances of the case that figure should not be a basis either to award the plaintiff or to penalize him. I am satisfied that this is

not a concocted claim, a fraudulent claim. Nor is it a case where the injuries were exaggerated by the claimant because of a

subjective belief that the injuries have had a worse effect than they have. Nor is it a case where the plaintiff has deliberately

exaggerated his injuries. Thus the decision of Shelley-Morris v. Bus Atha Cliath/Dublin Bus [2003] 1 I.R. 232 does not apply.

The evidence prepared as to future loss of earnings bore little relationship to the position of the plaintiff. However, from the evidence

of the plaintiff, I do not believe he was seeking to establish a fraudulent claim. Problems arose from the preparation of the evidence

for the trial. In view of the developing law on the issue of exaggerated claims it behoves legal advisers to address such issues, for,

amongst other results, an unrealistic approach to expert evidence which is not relevant could give rise to an entire claim being

deemed fraudulent. However, in all the circumstances, it is clear that this is not such a case.

7.6 Settled

On behalf of the plaintiff it was submitted that the High Court erred in finding that this case would have been settled on Friday had an

honest and reasonable approach been adopted by the plaintiff. I am satisfied that this was not the situation. Even if it had been,

which it was not, it would not have been a factor detrimental to the plaintiff's claim. The facts were that the case commenced on

Friday the 16th and, the evidence not having been completed, it resumed on Tuesday 20th. There were no grounds to indicate that

there were any matters relating to a settlement on Friday in which the plaintiff had not taken a reasonable approach.

7.7 Taxation

It may be that there is an issue of taxation on the little work the plaintiff did over the years prior to the accident. This does not

necessarily mean that such sums may not be considered by a court on an assessment: Downing v. O’Flynn [2000] 4 I.R. 383. In the

circumstances of this case it is not a relevant factor.

8. Decision

8.1 For the reasons given I am satisfied that the award of €90,000 for general damages was an error. The sum was inadequate for

injuries alone, the injuries being primarily the loss of a right eye, the necessity of relying henceforth on an impaired left eye, double

vision, soft tissue injuries and depression. It appears to me that a figure of €120,000 would be more appropriate in all the

circumstances of the case.

8.2 There was no claim for loss of earnings in the past, and there was no basis for an actuarial based claim for the future. While the

plaintiff had a genuine claim there was very little evidence to rely upon. The plaintiff has been on social welfare payments for the past

few years. The evidence established he did a little work 'tipping around'. In the circumstances I am satisfied that the plaintiff is

entitled to a limited sum on foot of this loss, which I would determine as €40,000.

8.3 The issue of costs of the High Court should be addressed with the matter of the costs of this appeal, after delivery of the

judgment.

9. Conclusion

For the reasons given I would allow the appeal, and in place of the award of the High Court make a total award to the plaintiff in the

amount of €164,480.