The Court of Appeal upheld the High Court’s finding that Anna Fogarty’s right elbow and shoulder injuries were caused by a 2011 car collision, but found that the damages award was excessive. In a judgment delivered on 29 November 2017, Ms Justice Irvine proposed reducing the total award from €121,386.11 to €68,886.11.
The appeal by Michael Cox challenged both the finding that the collision caused Ms Fogarty’s injuries and the amount awarded. Liability for the collision itself had been conceded. Mr Cox argued that the elbow condition was degenerative and that synovitis, an inflammation identified later, was caused by repeated steroid injections rather than the crash. He also argued that the High Court had not properly assessed gaps in early medical records and had wrongly relied on the plaintiff’s evidence about when she reported her symptoms.
The Court of Appeal declined to disturb the High Court’s causation finding. It said the trial judge had credible evidence from Ms Fogarty and medical witnesses, including evidence that her elbow could have struck the car door and expert opinions that the elbow injury was probably caused by trauma. The court also held that the medical notes put to Ms Fogarty in cross-examination did not prove that she had failed to report her symptoms: the doctors who made those notes had not been called to establish that the records were complete.
The court rejected the argument that the trial judge had reversed the burden of proof or should have drawn an adverse inference because Ms Fogarty did not call her regular GP. It also said any misunderstanding about the defendant’s argument concerning injections did not provide a basis to overturn the causation decision. Justice Irvine cautioned that solicitors repeatedly referring personal injury clients to the same doctor, who then takes over their care and later gives evidence, could raise concerns about independence.
On damages, however, the Court of Appeal found the High Court’s general damages award—€85,000 for pain and suffering to date and €30,000 for future pain and suffering—was disproportionate. The judgment noted that the collision was minor, Ms Fogarty remained mobile and self-caring, and her surgeon expected a full recovery within 18 months of trial. The court proposed €45,000 for past pain and suffering and €17,500 for future pain and suffering. With agreed special damages of €6,386.11, the proposed total was €68,886.11.
The judgment states that the award should be reduced; the source provided does not include a separate final order recording the formal disposition of the appeal.