The Court of Appeal has dismissed appeals by insulation contractor Brendan McGee against personal injury awards to Patrick and Anita Duffy, leaving the High Court’s orders in place. The High Court had awarded each plaintiff €200,000 in general damages for past pain and suffering and €200,000 for future pain and suffering; Mr Duffy’s total award, including special damages, was €1,095,120. The judgment does not state Mrs Duffy’s total award.
The couple claimed they developed severe respiratory injuries after spray foam insulation was installed at their home in Annagry, County Donegal, in February 2016. The High Court found that Mr McGee had failed to warn them they should leave during spraying and afterwards, and had not established that the ventilation needed for an early return had been achieved. It also found that Mrs Duffy and their daughter were in the house during spraying. The Court of Appeal said those unappealed factual findings established negligence.
Causation was disputed. The High Court accepted respiratory physician Professor Conor Burke’s evidence that the injuries were probably caused by exposure to isocyanate in the insulation. It rejected toxicologist Dr George Thompson’s evidence, finding that he had acted as a partisan advocate. On appeal, the Court of Appeal held that the trial judge was entitled to exclude Dr Thompson’s evidence in its entirety because of his failure to meet the duties of an objective and impartial expert. It concluded that the remaining medical evidence supported the finding that Mr McGee’s negligence caused the injuries.
The appeal court declined to reduce the damages. It said the general damages awards were high, but not so disproportionate as to amount to an error of law. It also rejected the installer’s arguments that the High Court had wrongly assessed special damages or failed to account for the couple’s alleged failure to mitigate their losses.
Mr McGee had also challenged a condition requiring payment of €300,000 to each plaintiff while the appeal was pending. As the sums had been paid and he had not applied to the Court of Appeal for a stay of that condition, the court treated the issue as moot and did not consider it further. It affirmed the High Court order and expressed the provisional view that the plaintiffs were entitled to their appeal costs, subject to a possible further hearing if Mr McGee applied within 14 days.