Wednesday 21 August 2019

Woman awarded over €121K for elbow injuries has damages almost halved by Court of Appeal

Stock picture
Stock picture

Tim Healy

THE Court of Appeal has almost halved a €121,386 damages award made to a woman over elbow injuries suffered when a car being reversed out of a car park space hit the driver's door of her car.

The three judge court reduced to €68,886 the damages awarded to Anna Fogarty by the High Court's Mr Justice Anthony Barr for reasons including the accident was at "the lowest end of the spectrum" of road traffic accidents.

Ms Fogarty (59), Templemore, Co Tipperary, had sued the other driver, Michael Cox, Rosemount, Thurles, over the accident in a car park at Limerick Institute of Technology, Thurles, on November 25, 2011. She alleged, as a result of the accident, she suffered tennis elbow and injuries to her shoulder.

The High Court accepted her elbow was sticking out as she was sounding the horn in an unsuccessful effort to prevent the impact and it had banged off the car door when the impact occurred.

Liability for the accident was conceded but Mr Cox argued the elbow injury was due to wear and tear and a secondary condition later identified in 2013 was the result of excessive steroid injections administered by a doctor.

The High Court held the injuries were a result of the accident.

Giving the Court of Appeal judgment, Ms Justice Mary Irvine said the defendant had raised no grounds on which the High Court findings that the injuries were a result of the accident could be set aside.

However, she was not satisfied the general damages awarded was "just, proportionate or fair" having regard to the injuries.

Nor was this a proportionate award when viewed in the context of the overall scheme of awards commonly made to persons with greater or lesser injuries.

Her conclusion on damages was based on several factors, including Ms Fogarty's injuries "could hardly have been sustained in less traumatic circumstances". The impact between her car and Mr Cox's was "clearly not significant" with only "minimal" damage to the door rim.

This was at the lowest end of the spectrum for road traffic accidents and was to be contrasted with many accidents which are "extraordinarily frightening" for those involved, often involving excessive speed and head on impacts.

Other factors included Ms Fogarty's mobility was not affected and she required no hospital treatment or medical intervention for several weeks afterwards, although the High Court accepted she was in considerable pain over that period.

While she received a number of "undoubtedly painful" injections into her elbow and later her shoulder, and attended a number of physiotherapy sessions, it did not appear those treatments disabled her "in any real sense".

The High Court hearing early last year was also told she was likely to make a full recovery within 18 months.

Ms Fogarty undoubtedly had an "unpleasant" period of some three years involving significant pain and discomfort in her right elbow and a lesser degree of pain in her shoulder but the evidence did not establish she did not live a relatively normal life during that time, the judge said.

In the circumstances, the "absolute maximum" for general damages for pain and suffering to date was €45,000, not the €85,000 awarded by the High Court, the judge said. She also cut from €30,000 to €17,500 damages for pain and suffering into the future. Those reductions, plus special damages, brought the overall reduced award to €68,886. 

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