The Court of Appeal has ordered a retrial in a personal injury damages case, finding that the High Court had not made sufficiently clear findings on the claimant’s chronic pain condition, its connection to a road accident and her claimed loss of earnings.
The judgment, delivered by Ms Justice Baker on 21 December 2018, concerned an appeal by Joanne Cullivan against a High Court decision made by Mr Justice Fullam on 10 February 2017. Liability for the 1 September 2011 accident was not in dispute; the trial concerned the assessment of damages.
The claimant argued that she developed chronic pain syndrome (CPS) after the accident and that the condition led her to give up work. The defendant’s case was that she had sustained soft tissue injuries and that other factors may have contributed to CPS. The High Court awarded €35,000 for past pain and suffering, €5,000 for future pain and suffering, €24,499.85 in general medical expenses and €4,500 for future medical expenses. It also allowed 25% of the claimed past loss of earnings and three months of future earnings.
The Court of Appeal said the trial judge accepted that the claimant had CPS but did not clearly determine when it began or whether the accident caused or contributed to it. It also found the judgment did not adequately explain how the conflicting medical evidence had been weighed or how the claimant’s symptoms and their effects were reflected in the damages assessment.
The appeal court criticised the trial judge’s use of a four-way division to calculate past loss of earnings, saying he should have made a finding about why the claimant stopped working and how the different complaints contributed. It also noted that the suggestion she could return to work three months after the litigation and a pain management programme came from the defendant’s expert, and had not been put to her in cross-examination.
The court said the claimant had not been given an opportunity to address the finding that she exaggerated her injuries. It concluded that this fairness issue could not be remedied on appeal, where the court could not replace the trial judge’s factual findings.
Allowing the appeal, the Court of Appeal held that the deficiencies in the findings and the treatment of evidence warranted a retrial. The judgment does not determine the claimant’s entitlement to damages at retrial.