The Court of Appeal has increased the damages awarded to Joann Twomey in a personal injury action, after rejecting the defendants’ appeal and allowing her cross-appeal over the deduction applied to her future loss of earnings.
In a judgment delivered on 16 June 2022, Mr Justice Noonan said the High Court’s 40% deduction from Twomey’s projected future earnings loss was not supported by evidence. He substituted a 15% deduction and replaced the High Court order with judgment for €218,175. The court also proposed that Twomey receive her costs of both appeals. The defendants had 14 days to seek a short further hearing on costs; absent such an application, an order in those proposed terms would be made.
Twomey was injured at the defendants’ Centra supermarket in Cork on 27 April 2015, when a heavy steel girder fell onto the back of her right leg, causing a severe laceration. She claimed continuing pain restricted her ability to work. The High Court accepted her evidence that she was truthful and had tried to return to her pre-accident life, and found it more probable that the pain involved nerve damage caused by the accident.
After working full-time at Boots, Twomey reduced her hours to three days a week from July 2018. The High Court awarded her €69,037.20 for future earnings loss, after applying a 40% deduction to an actuarial projection of €115,062. It also included €12,000 for earnings lost after the reduction in hours and €7,373.71 for losses between October 2015 and July 2018. The defendants challenged those earnings awards, arguing that the trial judge had not adequately explained them and had not properly addressed medical evidence or the possibility of lower-paid sedentary work.
The Court of Appeal dismissed that challenge. Noonan J said the High Court judge’s acceptance of Twomey’s evidence and the medical evidence supported the conclusion that she would be limited to a three-day working week. He also considered it reasonable to find she would be unlikely to accept the suggested alternative sedentary work, given her evidence that she loved her Boots job and had hoped to manage her leg problems.
On the cross-appeal, the Court of Appeal said the usual range for a Reddy v Bates deduction was 15% to 25%. Twomey’s long record of seeking and maintaining work pointed towards the lower end of that range. The High Court’s reliance on the pandemic’s effect on retail and the shift to online shopping was speculative, the appeal court said, because there was no evidence of the impact on her future employment prospects. Applying 15% to the €115,062 projection produced a future loss figure of €97,802.70 and increased the overall award by €28,765.50.