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Published 20 November 2017
In the matter of Gore (A Minor) Suing by His Mother and Next Friend -v- Walsh & Anor  IECA 278 Judge Mary Irvine ruled in the Court of Appeal that a €50,000 award to a minor who cut his back when he fell onto an unprotected and damaged radiator valve was “grossly excessive” and should be halved. Ms Justice Irvine also directed that the case be retried on the issue of liability only in the High Court.
The Plaintiff, a four year old, alleged that he fell from his sister’s bed onto the radiator’s spindle at the Defendants' premises on 11th December 2011. Through his mother and next friend, the Plaintiff sued the Defendants who had carried out renovation works to the bedroom in which the radiator was located. It was alleged that the Plaintiff was injured as a result of the Defendants’ alleged negligence in providing him with accommodation which was dangerous by reason of the presence of an unprotected radiator valve.
At trial in the High Court, Mr Justice Cross found the Defendants liable on the basis that the damage to the radiator was probably a result of a sharp blow from a spanner or hammer while the work was being carried out. He dismissed the Defendants' suggestion that the damage to the radiator was caused by the movement of a bed in the room.
In respect of quantum Mr Justice Cross, referred to the laceration sustained by the Plaintiff which had required suturing and which had left him with what he described as a significant scar of somewhere between 4.2 cm and 6 cm. Mr Justice Cross awarded a sum of €25,000 for pain and suffering to date and a further sum of €25,000 for pain and suffering into the future. The Defendants subsequently appealed the findings of Justice Cross in respect of liability and the quantum of damages awarded.
The Defendants submitted there was no credible evidential basis to support the trial judge’s finding and that any inference that the radiator had been damaged by the Defendants' actions was pure speculation. The Defendants also argued that the act of negligence which formed the basis for Mr Justice Cross's liability finding had never been canvassed with the Defendants’ witnesses at trial so that they might address or contest such alleged negligence. Finally the Defendants submitted that the award of damages was excessive having regard to the size and position of the Plaintiff’s scar and the extent of the consequential pain and discomfort.
Ms Justice Irvine sent the case back to the High Court, directing that the issue of liability should be reconsidered.
Ms Justice Irvine said that the Plaintiff's allegation that the Defendants had damaged the spindle either by over tightening a screw or by striking it with “spanners, hammers or some other implement” was not pleaded. Furthermore, the Defendants were not on notice of this allegation from the report of the Plaintiff's expert engineer.
Justice Irvine also commented that the evidence of the Plaintiff's expert amounted to speculation and that he wasn’t asked which of his theories he felt was more likely. She further pointed out that he did not present any evidence that the Defendants would have needed to use hammers or spanners when fitting the radiators. In effect the Plaintiff's expert did not state that the damage to the spindle could have been caused by the use of a spanner or any other instrument. As such Ms Justice Irvine opined that there was no evidence from which the trial judge could have drawn the inference which he did.
Ms Justice Irvine also found difficulty with the fact that the alleged acts of negligence put forward by the Plaintiff's expert were never put to the Defendants who had installed the radiators. It was never suggested to the Defendants that they had fractured the spindle by knocking it with a hammer or a spanner. Thus, the Defendants were denied any possibility of answering that allegation.
Ms Justice Irvine ruled that the finding of fact made by Mr Justice Cross that the spindle was damaged by a blow from an implement was the result of speculation and was not supported by credible evidence. Furthermore she said that the finding could not be inferred from any circumstantial evidence properly before the Court. Finally she noted the ruling was highly prejudicial to the Defendants in circumstances where they were not afforded any opportunity to rebut it.
Importantly, Ms Justice Irvine reduced the award for damages by 50% to €25,000.
In relation to the amount of damages, Ms Justice Irvine said the Plaintiff's injury, in the context of cosmetic injuries commonly before the courts, “is at the very lowest end of the cosmetic injury spectrum”. She further commented that the injury, unaccompanied as it was by any other physical or psychological injury, “is possibly if not probably the smallest scar I have ever seen form the subject of High Court Proceedings in more than 35 years of legal practice”.
She said she was satisfied the award cannot be considered just, fair or proportionate to the injury sustained stating that the Plaintiff “was not left with a significant scar, as was determined by the trial judge. Neither can his scar be described, as it was by counsel, as horrific".
Of further note is that Ms Justice Irvine attributed particular importance to the fact she did not consider that Justice Cross's award "objectively reasonable in light of the common good and social conditions in the State".
The decision of Ms Justice Irvine is instructive to Defendants and Insurers who wish to contemplate appealing both liability and quantum findings made at first instance.
When considering the merits of an appeal in respect of liability, consideration should be given to the evidential basis underlying the facts from which the trial Judge relies upon to make his or her finding. Facts that are based on pure inference or speculation are most capable of a forming the basis of a successful challenge upon appeal. Furthermore, a liability appeal is more likely to gain traction in circumstances where a Defendant was not given the opportunity to rebut facts grounded on speculation.
In regard to quantum, it is encouraging that the Court of Appeal continues to place weight on the core principles of proportionality and fairness when considering awards of damages. It is clear that damages must be viewed in context of the relative seriousness of any given injury and the prevailing wider socio-economic climate.
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