The High Court has awarded Sean Foxe €62,500 in general damages for injuries he sustained in a 2017 road crash, after rejecting the defendant’s application to dismiss his personal injuries action over allegedly misleading evidence.
Mr Foxe was stopped in traffic at roadworks at Finchogue Cross, Co Wexford, on 21 February 2017 when his car was struck from behind. Defendant Ian Codd admitted liability, leaving the amount of damages to be assessed. At the end of Mr Foxe’s case, Mr Codd declined to give evidence and applied under section 26 of the Civil Liability and Courts Act 2004 to have the action dismissed.
The application focused on two issues: Mr Foxe’s account of what he told Caredoc, an out-of-hours medical service, on the evening of the crash; and a 2016 MRI scan showing degenerative changes in his lumbar spine. The Caredoc note recorded neck pain and a headache, but no back pain. The personal injuries summons appeared to say he had reported lower-back symptoms there. The judge found that passage was misleading in a material respect, but was not satisfied Mr Foxe knew it was misleading when he swore the verification affidavit.
The defendant also argued that Mr Foxe had failed to disclose a pre-accident back complaint and had not told an orthopaedic surgeon about the earlier scan. The judge found the disclosure should have been made earlier, but accepted that Mr Foxe understood the 2016 consultation and scan to relate to scrotal pain and had not experienced back pain affecting his daily life before the crash. The judge found Mr Foxe generally honest and credible and concluded that the evidence did not warrant dismissal under section 26.
In assessing damages, the judge accepted that Mr Foxe’s neck, shoulder and intermittent lower-back symptoms were linked to the collision, with pre-existing degeneration contributing to the back symptoms only to the extent that the crash made it symptomatic. The back pain became severe at times from about March 2018. Treatment, including chiropractic care and pain injections, had brought relief, but symptoms continued. The injuries also curtailed his coaching, running and cycling.
The court assessed €35,000 for the neck injuries and €32,500 for the back injuries, then applied a modest reduction for overlapping injuries, bringing general damages to €62,500. It refused Mr Foxe’s request for aggravated damages, finding the section 26 application had not been brought lightly or improperly.
The amount of special damages had not been agreed or confirmed to the court. The parties were directed to report within seven days on the amount they agreed. The court said costs would follow the event in the usual way unless written submissions on costs were made within seven days; both parties had liberty to apply if difficulties arose.