Causation, mitigation, and loss of opportunity – The decision in Buckley v Lenihan

Background

Ms Justice Egan awarded the plaintiff €83,563.79 in damages as a result of soft tissue injuries to his lower back and left leg, sustained during a rear-end collision on the 4^th December 2020. Liability not in issue.

Key legal issues addressed

1. Causation

The question arose as to whether the plaintiff's current and future symptoms should be directly attributed to the accident or to the pre-existing degenerative changes in his lumbar spine. The plaintiff argued that he was asymptomatic at the time of the accident and that his symptoms were initiated by the accident rather than solely as a result of pre-existent degenerative spinal condition.

2. Mitigation of Loss

The plaintiff refused to undergo epidural injections to his spine citing a crippling fear of needles. The defence argued that the plaintiff failed to mitigate his loss and consequently, his award for damages should be reduced in proportion to his failure to prevent or to reduce the losses suffered.

3. Loss of opportunity

The plaintiff did not proffer a formal claim for loss of earnings. However, he claimed under a separate rubric for loss of opportunity, due to future vocational limitations as a result of the injuries sustained in his accident. The defence argued that the plaintiff was not entitled to a claim for damages for loss of opportunity in circumstances where is earnings had not diminished post-accident.

Judgment

1. Justice Egan noted the conflicting medical evidence in terms of whether the plaintiff's disc protrusion was extant prior to the accident or had been directly caused or exacerbated by it. While she was unable to discern from the reports which was the more plausible, she ruled in the plaintiff's favour, accepting that he was pain free prior to the accident and that the accident was the catalyst for rendering his pre-existing back condition symptomatic. She emphasised that defendants remain liable for injuries that activate or worsen latent conditions and awarded him €60,000 for this element of the claim.

2. Justice Egan applied Section 34.2(b) of the Civil Liability Act 1961 which holds that negligent or careless failure to mitigate a loss is tantamount to contributory negligence. In this instance, in light of the plaintiff's morbid phobia regarding needles, Justice Egan held that the plaintiff's refusal to undergo the injections was reasonable and genuine. She was therefore unwilling to penalise him for this, something which she noted that a court should be very slow to do.

3. Justice Egan drew an important and correct distinction between loss of earnings and loss of opportunity. She accepted that while the plaintiff's earnings had not diminished since the accident, it was inevitable that his job security and future potential earnings would be inhibited. She recognised loss of opportunity as a separate, compensable head of damage, even without a quantifiable earnings loss. She awarded the plaintiff an uplift of €15,000 (25%) on general damages for loss of opportunity.

Significance

While the judgment in Buckley v Lenihan acts as a reaffirmation of the established position rather than a departure from it, it is a useful reminder to practitioners of the key tenets of causation/ exacerbation of injuries, the mitigation principle and loss of opportunity, all prevalent issues in personal injury claims. It also offers practitioners some guidance when advising clients, particularly in relation to the potential value of a claim and how a court quantifies damages.