THE HIGH COURT
2015 No. 4250 P
KILKENNY COUNTY COUNCIL
JUDGMENT of Mr. Justice Garrett Simons delivered on 27 April 2022
1. This judgment determines the amount of general damages which the Plaintiff is entitled to recover in respect of personal injuries suffered in a road traffic accident. The Plaintiff had been driving to work on 5 December 2011 when his car was struck on the passenger side by a road sweeper truck. The truck had been driven by an employee of Kilkenny County Council. Both the driver and the local authority have been named as Defendants to the proceedings. Liability has since been admitted on behalf of the Defendants and the matter came on for hearing before the High Court as an assessment of damages only.
2. The parties have been able to agree a figure for special damages, subject to an issue in respect of the recoverability, by way of damages against the Defendants, of a sum equivalent to that received by the Plaintiff from his employer in respect of sick pay. That issue is addressed in a supplemental judgment also delivered today: Hynes v. Kilkenny County Council (No. 2)  IEHC 227. For the reasons set out in that judgment, the cost of providing the sick pay is not recoverable.
3. The court heard evidence from the Plaintiff, his spouse and his general practitioner. Insofar as the balance of the medical evidence is concerned, the parties jointly requested that the court should assess damages by reference to written medical reports. Each side admitted the other side’s medical reports into evidence without the necessity for formal proof of same and the court was then furnished with a bundle of medical reports.
4. This approach had the benefit of reducing the hearing time, with a corresponding saving in legal costs for the parties. This approach did, however, present a practical difficulty for the court in that, in some instances, there is an irreconcilable conflict between the medical evidence adduced by each side in respect of certain matters. In particular, the experts are in complete disagreement on the question of whether the Plaintiff suffered any psychological injury as a result of the road traffic accident. On one side, it is said that the Plaintiff suffered with post-traumatic stress disorder (PTSD); on the other, that the Plaintiff did not suffer any recognisable psychiatric illness. I address this issue in detail at paragraphs 34 to 38 below. As appears, the conflict has ultimately been resolved against the Defendants because of the paucity of reasoning provided in the reports of their consultant psychiatrist.
5. At the request of the court, the parties prepared written legal submissions on the quantum of damages and these were elaborated upon at a hearing on 8 April 2022. Judgment was reserved until today’s date.
6. The Plaintiff had not required medical treatment in the immediate aftermath of the road traffic accident on 5 December 2011. However, that evening he attended his general practitioner complaining of pain in his neck, chest and back. The Plaintiff attended his general practitioner again the following day, and was referred at that stage to the casualty department of his local hospital, St. Luke’s Hospital, Kilkenny. There, X-rays were taken of his chest, cervical spine, thoracic spine and lumbar spine, all of which were reported as normal.
7. The Plaintiff had been referred for an MRI scan of his thoracic spine and lumbar spine on 20 December 2011. The scan of his thoracic spine was noted to be normal. The scan of his lumbar spine showed a black degenerative disc at L5/S1 with evidence of an annular tear and a left paracentral disc herniation which was displacing the left S1 root. There was also bilateral foraminal narrowing noted at L5/S1.
8. Two months later, on 4 February 2012, the Plaintiff had another MRI scan of his cervical spine and this showed minimal bulging at C3/4 intervertebral disc but without any nerve encroachment.
9. The Plaintiff’s attending consultant neurosurgeon (Mr. Kelleher), in his report of 22 June 2017, has offered the following opinion on the state of the Plaintiff’s spine.
“Declan Hynes has degenerative changes evident on the MRI of his lumbar spine. It is not possible to state that the degenerative changes such as the one seen were caused as a direct result of the accident on 5th December 2011. The reason I make this statement is because degenerative changes such as the ones seen can occur as natural ageing in the lumbar spine and can occur in the absence of any trauma.
In Declan Hynes’ case, it is possible to state that regardless of the timing of the onset of the degenerative changes, this man was rendered symptomatic as a consequence of the road traffic accident on 5th of December 2011, and this resulted in both pain in his neck and his lower back and left leg.”
10. The Plaintiff had been treated conservatively for the first number of months following the accident. The Plaintiff was prescribed with anti-inflammatory tablets, analgesics and tablets for spasm. The Plaintiff also commenced physiotherapy.
11. The Plaintiff reported continued pain and neurological symptoms, including sciatica and a burning sensation and paraesthesia in his back. The Plaintiff was referred to the consultant neurosurgeon in February 2012. He was treated by way of epidural steroid injection, advised to practice core strengthening exercises and referred to a pain specialist. A CT guided left L5/S1 nerve root block injection was performed on 12 June 2012.
12. Having regard to the neurological type lower back and leg symptoms, the neurosurgeon ultimately decided to recommend an operation on the Plaintiff’s back. A left L5/S1 microdiscectomy was carried out on 11 August 2012. The Plaintiff is reported as having had a definite improvement post-operation, and continued with physiotherapy and core strengthening exercises. The Plaintiff was able to return to work in November 2012, initially on a part-time basis but gradually increasing to full-time hours.
13. The Plaintiff suffered what he describes as a “slight relapse” and underwent another epidural injection on 24 January 2013. The Plaintiff stated in evidence that this gave him some relief. The Plaintiff underwent CT guided bilateral L4/L5 and L5/S1 facet joint injections on 10 September 2014.
14. Notwithstanding these setbacks, the prognosis had been good. The Plaintiff’s general practitioner reported in May 2013 that the Plaintiff’s symptoms were all improving. At that time, he had been making good progress and the prognosis had been that his symptoms would continue to improve and dissipate with time. In July 2016, the general practitioner was again able to report that all symptoms were improving. The general practitioner noted, however, that the Plaintiff had developed significant anxiety and depression after the accident which slowed down his recovery. The Plaintiff had begun taking anti-depressant medication in or about February 2016.
15. Whereas the back injury is, in the Plaintiff’s own words, “much improved”, it continues to affect him. The Plaintiff described sensing the “weakness” of his back every morning when he rises from bed, and stated that he endures “mild burning sensations” from time to time. It is necessary for him to attend his physiotherapist every four to six weeks. He regularly takes anti-inflammatories and Ibuprofen. He also uses Difene gels and takes Baclofen.
16. The neck injury has also proved debilitating. The Plaintiff describes his neck as tense and heavy. The Plaintiff takes Ibuprofen and Tylex. It is necessary for the Plaintiff to use an orthopaedic bed and orthopaedic pillows. Occasionally it is necessary for him to lie down during the day. The Plaintiff has also explained that if he drives for any period of time, his neck area tenses up and he often has to stop the car and walk about.
17. The Plaintiff had been assessed on behalf of the Personal Injuries Assessment Board on 16 April 2014 by a consultant neurosurgeon. The following summary was provided:
“Mr. Hynes states that he developed symptoms of right sided sciatica in the early days following the road traffic accident.
Although imaging studies did not demonstrate a convincing traumatic disc prolapse at L5/S1 Mr. Hynes has undergone a successful lumbar discectomy carried out at a belated time on 11/8/2012. Mr. Hynes no longer describes left-sided sciatica.
Mr. Hynes’ predominant clinical presentation at this time is that of a marked anxiety state. Neck movements are restricted. Back Movements are restricted. He has an intense disposition. He is worried about the future and about his work practices. His lifestyle has changed.
It is my opinion that Mr. Hynes has not suffered any long-term structural injuries as a consequence of the accident of 5/12/2011 now that is left sided sciatica has been relieved by operation. Mr. Hynes however clearly has genuine difficulties in respect of a post-traumatic stress adjustment disorder. It is surprising that he has not been referred for a full physical rehabilitation programme and for cognitive behavioural therapy.
A report should be obtained from a psychiatrist.”
18. The Plaintiff had then been referred by the Personal Injuries Assessment Board to a consultant psychiatrist (Dr. Goggins) on 9 October 2014. The following description of the psychological sequalae is provided in the consultant psychiatrist’s report.
“Psychological Sequelae following the Accident:
Mr. Hynes’s mental state has been significantly affected by the accident. Due to severe insomnia he described poor energy and irritability during the daytime. He described anxiety symptoms including tightness of his chest, fear when driving and intense worry about his and his family’s future. He described feeling depressed in mood particularly in relation to dealing with ongoing pain. He described anhedonia or loss of pleasure in activities. He rarely socializes now. His concentration has been poor.
Mr. Hynes returned to work in November 2012 initially on a part time basis but gradually this increased to full-time. He stated that it has been difficult for him to function at work particularly due to ongoing pain.
Mr. Hynes described how his marriage has been affected. He reported that sexual relations have been affected due to ongoing pain and low mood. He described more arguments at home and he has been feeling guilty and ‘less of a man’ following the accident.
Mr. Hynes did not report nightmares in the aftermath of the accident. At the time of the accident he did not fear that he was going to be killed or seriously injured.”
19. The following diagnosis was made in respect of the Plaintiff’s mental health:
“In relation to his mental health Mr. Hynes developed an Adjustment Reaction in the aftermath of the accident. This progressed to a Depressive Disorder. He continues to be symptomatic.”
20. The consultant psychiatrist offered the following opinion:
Mr. Hynes presents with chronic low mood. I am hopeful that an adequate trial of Duloxetine or an alternative antidepressant will be beneficial and aid his recovery although it is too early to say with any degree of certainty. Depressive symptoms can exacerbate the experience of pain and vice versa.”
21. The Plaintiff was ultimately diagnosed as having suffered with post-traumatic stress disorder (PTSD) in the early months following the road traffic accident. The diagnosis appears to have been first formally made following his examination by a consultant psychiatrist (Dr. Neville) on 11 May 2015. The consultant psychiatrist’s report offers the opinion that his condition had since evolved, and as of May 2015 the Plaintiff had been suffering from an ongoing severe adjustment reaction, with a concomitant/comorbid clinical depressive illness. The Plaintiff is recorded as complaining of multiple symptoms, including being low in mood all day every day; being hyper aware of danger; and being afraid to take risks. The Plaintiff is described as being constantly anxious and terrified of driving.
22. The consultant psychiatrist advised the Plaintiff to continue attending his general practitioner and to consider commencing on a defined course of antidepressant medication. The overall prognosis was described as guarded because the Plaintiff’s psychological recovery is dependent on further rehabilitation with regard to his physical injuries.
23. The most up-to-date report from this consultant psychiatrist (Dr. Neville) is dated 17 April 2019. The following summary is provided:
“In my opinion Declan had an initial diagnosis of Posttraumatic Stress Disorder symptoms, with an ongoing Adjustment Disorder, and he has had at least two clear-cut episodes of clinical depressive illness and anxiety. He remains on ongoing treatment for anxiety and depression, and appears to be a vulnerable subject in that he may now be susceptible to further relapse of depressive illness in the future. Declan needs ongoing medication and monitoring of his condition for a considerable period of time. It is to be hoped that Declan will make a gradual and sustained improvement in his mental condition, but he has not yet recovered to the extent of reaching his premorbid level of health and wellbeing. The future prognosis therefore remains guarded.”
24. The Plaintiff had come under the care of a second consultant psychiatrist, Dr. Michael Morris, in November 2018, following an incident when the Plaintiff presented at the emergency department of St. Luke’s Hospital, Kilkenny. The Plaintiff had been complaining of severe pain in his chest, feeling extremely tense, and finding it hard to breathe. It appears that the Plaintiff had suffered some sort of anxiety or panic attack. Thereafter, the Plaintiff had been absent from work until April 2019, and again between July 2019 and July 2020.
25. Dr. Morris has provided two reports for the court. These record the opinion that the Plaintiff had developed psychological symptoms of anxiety, depression and reduced levels of occupational functioning. The second of the two reports is dated 1 March 2022. The Plaintiff is recorded as having residual mild anxiety features including hands trembling, feeling shaky and unsteady and fear of losing control. The report notes that the Plaintiff has learned psychological methods of self-management.
26. The parties are broadly agreed that the Plaintiff suffered injuries to his neck and back as a result of the road traffic accident. There, however, the consensus ends. The Defendants contend that the Plaintiff’s symptoms had largely resolved by May 2013 following the successful microdiscectomy in August 2012. The Defendants draw attention to the fact that the medical reports in the period following August 2012 offer a positive prognosis and that the Plaintiff had begun a gradual return to work by November 2012.
27. The Defendants also emphasise the following assessment from the consultant orthopaedic surgeon who examined the Plaintiff on their behalf. See Dr. Michael O’Riordan’s report of 7 March 2022:
I find it very difficult to believe that over eleven years post injury that [Mr. Hynes] still has such significant difficulties. I realise that he had a discectomy in the past. He is now 46 years of age, and a lot of the aches and pains he complains of would be age compatible. I cannot see any residual damage that could be attributed to a collision that occurred over eleven years ago. I do believe that there is a significant psychological overlay to this gentleman’s symptoms. Physically he is doing very well. Objectively he is essentially normal, subjectively he still has symptoms which, even by my reading of matters, are mild-to-moderate at most and would not be a significant hindrance to a normal life.”
28. In their written legal submissions, the Defendants submit that the appropriate range for general damages is between €65,000 and €100,000.
29. Counsel on behalf of the Defendants cross-examined the Plaintiff on the basis that from May 2013 his physical injuries were resolved. It was also put to the Plaintiff that the Defendants’ medical evidence demonstrated that the Plaintiff was not suffering any recognisable psychiatric illness as a result of the road traffic accident.
30. The Plaintiff denied this, saying that he has had a very hard journey, physically and mentally. The Plaintiff went on to say that he had tried his “very best” to be present in his work; however, as a result of the accident mental illness has put obstacles in front of him. The Plaintiff also said that he has always been moving in a forward direction, trying to have a good life, an enjoyable life.
31. It had also been suggested in cross-examination that the Plaintiff had delayed in pursuing a claim for personal injuries; that this had prejudiced the Defendants in that they only had an opportunity of having the Plaintiff medically examined for the first time some four years after the accident; that the Plaintiff had created a “monster” of a case which was always to be an assessment only; and that had the proceedings been resolved within three or four years of the accident, the Plaintiff would “be feeling a lot better now”.
32. This aspect of the cross-examination is not supported by the objective facts. The Plaintiff had been medically examined on behalf of the Defendants in January 2014, that is some two years after the accident and not four years later as suggested in cross-examination. The Defendants did not formally concede liability until 2018 and thus it is incorrect to say that the case was always going to be an assessment only.
33. I am not satisfied on the basis of the limited cross-examination of the Plaintiff that his direct evidence of his mental health difficulties has been refuted. It is apparent from his, largely unchallenged, direct evidence that the Plaintiff suffered greatly with his mental health; that this has adversely affected all aspects of his life; and that as a result he has been absent from work, on and off, for a significant period of time (especially between November 2018 and April 2019, and, again, between July 2019 and July 2020).
34. Moreover, the Defendants have not put forward any cogent psychiatric evidence which refutes that adduced on behalf of the Plaintiff. The Plaintiff’s side have put forward three detailed reports from a consultant psychiatrist, Dr. Neville, which confirm that the Plaintiff initially suffered with post-traumatic stress disorder, and that this had evolved into a prolonged adjustment disorder and a comorbid clinical depressive illness. This latter diagnosis appears to be broadly supported by the independent psychiatric assessment carried out on behalf of the Personal Injuries Assessment Board in October 2014.
35. The consultant psychiatrist retained by the Defendants, Dr. Thakore, does not engage with the detail of Dr. Neville’s assessment. Rather, his two reports merely state a conclusion, namely that the Plaintiff is not suffering from a formal medical illness at present and has not suffered from a recognisable psychiatric illness as a result of the incident in question, i.e. the road traffic accident in December 2011. There is no explanation provided as to why, for example, Dr. Thakore does not regard the catalogue of symptoms described in Dr. Neville’s reports as supporting a diagnosis of an ongoing severe adjustment reaction, with a comorbid clinical depressive illness. Nor does Dr. Thakore offer a view as to why, if there is no mental illness involved, a number of medical practitioners have prescribed antidepressants for the Plaintiff. There is no discussion in Dr. Thakore’s reports of the incident in November 2018 when the Plaintiff attended the emergency department at his local hospital suffering from an anxiety or panic attack.
36. Presumably, had Dr. Thakore been called to give oral evidence in the ordinary way, he would have taken the opportunity to elaborate upon his reports and to explain precisely why it is that his assessment differs so radically from that of his colleague Dr. Neville. In the event, however, the Defendants’ side chose instead to confine their evidence to the written medical reports.
37. This court can only act on the basis of the evidence which has been adduced before it. The parties have adopted the somewhat unsatisfactory approach of simply putting up their respective medical reports to the court, without any oral evidence or cross-examination. This is so notwithstanding that insofar as the psychological injuries are concerned there is a direct and irreconcilable conflict on the evidence, with one side saying that the Plaintiff had suffered from post-traumatic stress disorder and the other side saying that there is no recognisable psychiatric illness involved.
38. A court faced with conflicting expert evidence is required to provide its reasoning for preferring the evidence of one expert over that of another. See, for example, Morgan v. Electricity Supply Board  IECA 29 (at paragraphs 20 to 22). This presents a practical difficulty in the instant case in that the consultant psychiatrist retained on behalf of the Defendants has not put forward any rationale for his conclusion. There is thus no material upon which this court could reach a reasoned decision to prefer his evidence. It follows, therefore, that this court must accept the detailed expert psychiatric evidence on behalf of the Plaintiff which corroborates the direct evidence which the Plaintiff himself gave in respect of his mental health. The Plaintiff’s evidence was further corroborated by that of his wife. She explained that her husband is “not the same person as he once was before the accident”, and that their “lives just changed upside down” as a result. Damages fall to be assessed, therefore, on the basis that the Plaintiff suffered significant psychological injury as a result of the road traffic accident.
39. Section 22 of the Civil Liability and Courts Act 2004 provides that the court is to have regard to the Book of Quantum in assessing damages in a personal injuries action. Given the fact that these proceedings commenced as long ago as 2015, this action is not affected by the guidelines made pursuant to the Judicial Council Act 2019.
40. The importance of the Book of Quantum has recently been explained as follows by the Court of Appeal in McKeown v. Crosby  IECA 242 (at paragraphs 23 to 25):
“[…] The subjective element of an injury is inherently difficult to assess. A court has no objective way of knowing what pain a plaintiff feels. Regrettably, exaggeration is not uncommon. Different plaintiffs may have different pain tolerances, if such a thing truly exists, but because of the subjectivity of such matters, the court has to look to the objective medical evidence in particular to arrive at fair compensation in any given case.
The Book of Quantum acts as an aid to that exercise. It is perhaps to be viewed as a guide and in many cases, its value may be limited for a wide variety of reasons. However, it does at least recognise that there are different categories of severity of injury, each of which has an approximate band of values. This does little more than reflect the reality of personal injuries litigation which lawyers in that sphere understand very well, namely that there is a ‘going rate’ for particular injuries, especially those that are common. This is demonstrated by the fact that the overwhelming majority of personal injury cases, probably more than in any other area of litigation, are settled by the emergence of a consensus as to the value of the case. Indeed, even where cases proceed to trial, that is not necessarily because lawyers on opposite sides cannot reach a consensus as to its value, but more often than not because the particular plaintiff does not share in the consensus.
The successful operation of any personal injuries litigation system is highly dependent on predictability. The Book of Quantum seeks to introduce a measure of predictability, at least where it can be said that the injury in question is capable of categorisation and is one that has affected the plaintiff in a way that it might be expected to affect most people. There will of course always be points of departure from the norm and a relatively minor finger injury for example, may affect a concert violinist very differently from, say, a clerical worker. This is something that the range of damages for a particular injury is designed to accommodate.”
41. The Book of Quantum treats separately of neck injuries and back injuries. In each instance, however, the factors to be considered include whether the injury has resulted in serious limitation of movement, recurring pain, stiffness and discomfort and the possible need for surgery or increased vulnerability to further trauma. The Book of Quantum does not address psychological injury.
42. The evidence establishes that the Plaintiff suffered a “moderate to severe” soft tissue injury to his neck and lower back. The back injury ultimately required surgical intervention, i.e. the microdiscectomy performed in August 2012. The effects of the injury were prolonged. Even after the microdiscectomy, it had been necessary for the Plaintiff to receive an epidural injection in January 2013 and facet joint injections in September 2014.
43. I am satisfied that the Plaintiff’s injuries do not meet the higher threshold of “severe and permanent” under the Book of Quantum. That latter classification generally only applies where an injured person has suffered limitation of movement on a permanent basis, resulting in ongoing pain and stiffness with the necessity for the use of a support, such as a neck or back brace, for long periods in the day. Happily, the Plaintiff is not in this situation. As noted in his attending consultant neurosurgeon’s report of 22 June 2017, the Plaintiff has normal alignment and his cervical range of motion is good.
44. The Book of Quantum suggests that a “moderately severe” neck injury would justify compensation in the region of between €34,400 to €52,200, and a “moderately severe” back injury €32,100 to €55,700. Where an injured party has suffered injuries falling within more than one category, e.g. an injury to both the neck and lower back, it is not appropriate to simply add up values for all the different injuries to determine the amount of compensation. Rather, a holistic view should be taken of the injuries to ensure that the award of damages adequately reflects the pain and suffering endured. This will normally result in an upward adjustment, and the award may end up exceeding the monetary ranges indicated for one injury alone.
45. Having regard to the debilitating effect of his injuries, and to the fact that same have persisted for more than five years post-accident, damages will be assessed at €70,000. This comprises a sum of €65,000 for past pain and suffering and €5,000 for future pain and suffering. The latter, more modest, sum is intended to reflect the fact that—as is apparent from the medical reports—the Plaintiff has now made a substantial recovery. Such residual symptoms as remain are very minor in nature. As noted by the attending consultant neurosurgeon in his report of 22 June 2017, the Plaintiff will not be left with any long-term complications as a consequence of the road traffic accident.
46. The Book of Quantum does not address psychological injury. Counsel on behalf of the Plaintiff has submitted that the appropriate figure would be in the bracket of €50,000 to €60,000. Counsel for the Defendants, even on their sceptical view of the claim for psychological injury, suggested a figure of €25,000.
47. The evidence establishes that the Plaintiff suffered significant psychological sequelae as a result of the road traffic accident. The Plaintiff had been diagnosed, initially, with a post-traumatic stress disorder, and thereafter as having suffered a severe adjustment reaction, with a concomitant or comorbid clinical depressive illness. This diagnosis appears to have applied for a number of years, between 2015 and 2018 or 2019. The Plaintiff has required medical intervention: this has taken the form, variously, of cognitive behavioural therapy and prescribed medication. The Plaintiff had to attend at the emergency department of his local hospital in November 2018.
48. The psychological injury had affected all aspects of his life. The Plaintiff’s relationship with his wife had suffered because of his low mood and libido. His relationship with his children had also been affected: his anxiety had meant that he had been unable to participate fully in their play time or sporting activities. The Plaintiff has had prolonged absences from work, measured in years rather than months, and this had impacted negatively on his self-esteem and had caused him to worry about his future career potential. He had been unable to complete a part-time course in business management at Carlow Institute of Technology. His ability to enjoy his previous pastimes—including working with his father on the family farm, walking, or shooting had all been greatly curtailed.
49. Having regard to all of these factors, damages for psychological injury will be assessed at €45,000.
50. Happily, it is apparent from Dr. Morris’ report of 1 March 2022 that the Plaintiff has made significant progress, now has only residual symptoms and has learned psychological methods of self-management. No award is necessary, therefore, in respect of future psychological sequalae.
51. For the reasons explained herein, general damages have been assessed at €115,000. This comprises a sum of €70,000 in respect of physical injuries, and a sum of €45,000 in respect of psychological injury. The special damages have been agreed between the parties at €58,000, comprising a sum of €28,000 in respect of medical and traveling expenses, and €30,000 in respect of loss of earnings.
52. Judgment will accordingly be entered in favour of the Plaintiff in the sum of €173,000.
53. The parties are asked to liaise with a view to agreeing the appropriate order in respect of costs. In the event of disagreement, the matter will be listed before me on 10 May 2022 at 10.45 am for argument on costs. A copy of the formal offer of settlement, if any, served pursuant to section 17 of the Civil Liability and Courts Act 2004 should be furnished to the court in advance.
Result: General damages in personal injuries action assessed at 115,000 euro
Patrick Treacy, SC, John Shortt, SC and Colette Egan for the Plaintiff instructed by Byrne Carolan Cunningham LLP
Stephen Lanigan-O’Keeffe, SC and Paul McKeon for the Defendants instructed by Harrison O’Dowd