Judge almost halves €121,000 damages over car park collision

Anna Fogarty’s injuries could not have been sustained in ‘less traumatic circumstances’, judge says

The Court of Appeal has almost halved a €121,386 damages award to a woman for elbow injuries suffered when a car being reversed out of a parking space hit the door of her vehicle.

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

Ms Fogarty (59), of Templemore, Co Tipperary, sued the other driver, Michael Cox, of Rosemount, Thurles, over the collision in a car park at the Limerick Institute of Technology campus in Thurles on November 25th, 2011.

She alleged that 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 collision and it had hit 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 that 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.

No grounds

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

However, she was not satisfied that the general damages awarded were “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 that 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.

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.

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, reduced the overall award to €68,886.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times