The Court of Appeal reduced Mary Nolan’s general damages award from €120,000 to €65,000 after allowing an appeal by Rafal Wirenski, the defendant in her personal injuries action. The court set aside the High Court’s award as disproportionate and substituted €50,000 for pain and suffering to date and €15,000 for future pain and suffering. It varied the High Court order accordingly.
The case arose from a road traffic accident on 8 September 2010. Ms Nolan was a passenger in a car driven by her husband when it was struck from behind by Mr Wirenski’s vehicle on the N7 near Naas, County Kildare. The High Court had awarded her €90,000 for pain and suffering to date, €30,000 for future pain and suffering and €5,680 in agreed special damages.
Mr Wirenski argued on appeal that findings about the extent of Ms Nolan’s injuries and the restrictions they caused were not supported by credible evidence. He also said the general damages were excessive. His submissions relied, among other things, on video footage showing Ms Nolan raising her arm overhead and lying on her right side, and on her withdrawal on the morning of trial of a claim for past and future care.
The Court of Appeal said the trial judge should have explained how he reconciled the video evidence with Ms Nolan’s evidence about difficulties using her arm and lying on her right side. However, the appeal court accepted the trial judge’s general assessment of her credibility and assessed the award on that basis, allowing for the specific evidence shown in the footage.
The appeal court found two High Court findings unsupported by the evidence: that Ms Nolan could not raise her right arm above the horizontal, and that she was still taking medication for her accident injuries at trial. The video showed her repeatedly waving overhead; in cross-examination, she had said the medication she was then taking was the same as she had taken for an unrelated back condition before the accident.
In setting the replacement award, the court considered the shoulder procedures, physiotherapy, the effects on daily activities and the likely future restriction in shoulder rotation. It said the procedures were minimally invasive, the restriction was not expected to interfere with day-to-day activities, and the injuries were at the lower end of the personal injury spectrum. The €5,680 special damages award was not identified as being changed by the appeal order.
The judgment was delivered by Ms Justice Irvine on 25 February 2016. The appeal was from a High Court judgment and order made on 4 July 2014.