A High Court judge has taken into account damages recovered by a plaintiff for injuries on three previous occasions in deciding to grant €35,000 in damages for his fractured wrist.
Mr Justice Tony O’Connor said past general damages recovered by Jason McCarthy, totalling €44,550, had “some minimal relevance” when applying the proportionality exercise in determining the value of this case.
The judge was satisfied Mr McCarthy (36) did trip and fall, as claimed, over a protruding “lip” on the pavement outside his father-in-law’s home in Gracedieu, Waterford City, on February 1st, 2015.
Mr McCarthy, of Ballybeg, Littleton, Thurles, Co Tipperary, sued Waterford City Council as the local authority that leased the property. He alleged negligence, breach of duty and breach of the Occupiers Liability Act 1995.
He attended hospital the next morning and a medical report stated he fractured his wrist, which required fixation with a grafting procedure.
Mr Justice O’Connor said the council accepted during the hearing that the pavement lip was caused as a “direct result of poor compaction at the sub base” and that if an inspection occurred the lip would have been noted and measures taken to repair it.
The local authority wanted the court to determine if the fall happened as alleged or at all, if it occurred where alleged, and if such a fall caused the injuries claimed.
The judge concluded that, on the balance of probabilities, Mr McCarthy did suffer an injury to his left wrist in the incident, which the defendant accepts liability for in light of the facts established by the court.
He felt Mr McCarthy, who was unemployed when he initiated his case, showed that his oath to the court “meant a lot”. There was no reason to doubt his account that he simply does not remember, seven years since the incident, whether he fell on his right or left side, the judge added.
'Patchy' memory
The plaintiff’s memory of his pain, suffering, treatment and doctor attendances was “patchy”, said the judge, adding that the injuries do not impinge significantly on his current day-to-day interests.
Mr Justice O’Connor took account of the medical opinion regarding Mr McCarthy’s current symptoms and that he has an unspecified increased risk of arthrosis in the area.
Mr McCarthy acknowledged he recovered €17,555 from a road traffic accident in 2003 and a further €12,000 for another road accident in 2009, said the judge. The man was “not that forthcoming until he was pushed”, he added, about receiving €15,000 arising from an assault when he was a child.
As the initiation of the case predates the new personal injuries guidelines, the judge used the Book of Quantum to settle on an award of €35,000.
The plaintiff’s counsel had suggested the injury was moderately severe and should garner between €54,200 and €70,000.
Mr Justice O’Connor noted the local authority agreed, following delivery of the judgment, to pay Mr McCarthy €30,000 together with his legal costs calculated on the lower Circuit Court scale.
The Circuit Court has jurisdiction to award damages of up to €60,000, while the High Court is intended to hear injuries claims above this figure.
