The Court of Appeal (CoA) has cut a €124,000 award made to a man who was knocked off his bike in a cycle lane by a bus to just over €65,000.
Gearoid O'Daly (40), a bank lending officer of Heuston South Quarter, Dublin, sued Bus Éireann and driver Declan Sheridan over the incident as he was travelling along the cycle lane at Custom House Quay, Dublin, on June 8th, 2016.
Bus Éireann had denied liability and claimed contributory negligence in that it argued Mr O'Daly failed to look where he was going.
Mr O'Daly fractured his wrist and suffered abrasions and bruising in the incident and claimed he developed chronic long-term pain for which he subsequently underwent numerous treatments.
Last year, Mr Justice Michael Hanna awarded him a total of €124,000 at the High Court saying he accepted Mr O'Daly's evidence.
Bus Éireann appealed the award to the CoA on grounds including that there was no evidence to support the High Court’s conclusion that there was a causative link between the accident and the complaints of widespread body pain syndrome or medically unexplained pain.
The defendants also argued the trial judge erred in failing to properly interpret the medical evidence on both sides in coming to his conclusions, and that the overall award was excessive and was unsupported by the evidence.
Mr O'Daly's lawyers opposed the appeal.
Reduction
In its judgment on Thursday, the three-judge CoA, comprised of Mr Justice Seamus Noonan, Mr Justice Donald Binchy and Mr Justice Senan Allen, agreed the award should be cut.
Delivering the CoA's decision, Mr Justice Noonan said the defendant had complained that the High Court judge had "sought to diagnose the plaintiff as suffering from a pain syndrome in the absence of any evidence”. The CoA agreed there was “some merit in that contention".
There was no evidence which would justify a finding that the plaintiff was suffering from a pain syndrome, for example CRPS, which is a specific discrete finding that is medically verifiable, the CoA found. That was "certainly not" the evidence of the plaintiff’s medical witness, the CoA added.
The CoA said the High Court judge had recognised there was no psychological support for his conclusion, "which unfortunately undermines it".
The CoA said that after taking the Book of Qantum, which is the publication that gives guidelines for compensation payments in personal injuries cases, and other comparable personal injuries cases into account, Mr O’Daly was entitled to an award of general damages of €55,000.
The CoA went on to assess his special damages as being a sum just over €10,000, bringing Mr O'Daly's award total to just over €65,000.
Medical evidence
In his judgement, Mr Justice Noonan said as a general observation that an "ever-present issue in personal injury litigation is how the court is to assess complaints of pain and disability".
"A particular difficulty arises where such complaints are not apparently supported by medical evidence," he said.
A court has to use its best endeavours to gauge the impact of an injury on the particular claimant, the judge said, adding that this "often involves the question of credibility".
He said judges sometimes remark that they believe the plaintiff, or the plaintiff did not exaggerate their injury, or the plaintiff was a bad candidate for the accident, and in many cases that may suffice to arrive at a reliable conclusion.
However, he said judges "are fallible like everyone else and while the vast majority of plaintiffs are honest and truthful about their complaints, that is not invariably the case".
Human nature, being what it is, how people perceive their injuries will naturally vary, the judge added. However, he said the law "must treat everyone fairly and equally".
"Fairness means being consistent in one’s approach to particular injuries, even if, to some extent, they may affect different people differently.
"Were it otherwise, assessment tools such as the Book of Quantum and the Personal Injuries Guidelines would be of little value," he added.
