IEHC 87 — IEHC 87 — High Court

THE HIGH COURT

[2026] IEHC 87

Record No. 2022 1467 P

Between

COLETTE SHEEHAN

Plaintiff

And

GRAHAM BEAMISH

Defendant

Judgment of Mr. Justice Conor Dignam delivered on the 16th day of February 2026

INTRODUCTION

1. The plaintiff seeks damages arising out of a road traffic accident which occurred on the 27th November 2020. The matter proceeded as an assessment only.

2. On that date, while the plaintiff was stopped at a roundabout at Shannon Park in County Cork, the vehicle owned by the defendant struck the rear of the plaintiff’s vehicle. The plaintiff has no memory of what happened immediately after the collision but when she became aware of her surroundings she was on the edge of the roadway in the roundabout. It seems that her car had been pushed forward and to the left by the collision.

3. The medical position is somewhat complicated both because of the nature of some of the injuries and some aspects of the plaintiff’s medical history. In summary, the plaintiff suffered injuries to her neck, shoulders and back, and to her knees. The plaintiff has also suffered from headaches, fatigue, difficulty with concentration, difficulty with processing information, and problems with light and noise, and has been diagnosed with post- concussion syndrome and worsening of migraine. Her case is that her injuries have adversely affected her life, including her participation in several types of physical and sporting activities, and have severely curtailed her ability to do her job and have curtailed her career advancement. There is also evidence that she experienced an abrupt onset of menopause as a result of the trauma.

EVIDENCE

4. Evidence was given by the plaintiff, and by Dr. Gitte Wieneke, a general practitioner, Dr. Grace Doyle, another general practitioner, Dr. Aisling Campbell, consultant psychiatrist, Dr. Habib Rahman, consultant neurologist, Mr. Nigel Tennant, actuary, and Mr. Robert Din, consultant orthopaedic surgeon. These witnesses also provided reports which they adopted as part of their evidence.

The Plaintiff

5. The plaintiff’s evidence was as follows. She was 49 at the time of the accident, having been born on the 24th September 1971. She is from Cork and was living in Cork at the time of the accident. She attended school and university in Ireland. She developed an interest in IT and IT project management. From 1998 to 2001, she worked in those fields in Australia and the United States. She also worked in those areas when she returned to Ireland in 2001. She developed an interest in primary school teaching and moved to Derby in 2003, where she worked in IT project management and trained to be a primary school teacher. She then worked as a teacher for two years before moving back into IT with a large car manufacturer in Derby. This was in or about 2008. She worked there for nine years before returning to Ireland in 2017 to take up a position in IT in the civil service as a Higher Executive Officer. She lived in Dublin.

6. Unfortunately, the plaintiff’s mother was diagnosed with cancer in early 2020. She also had another serious illness. Care needed to be provided. Then in mid-March 2020 rumours circulated that the country might be locked down (due to Covid-19). Due to the fear of lockdown and her mother’s need for care, the plaintiff moved to Cork and worked from home whilst also sharing in the care of her mother with her siblings. Unfortunately, her mother’s prognosis changed shortly after the plaintiff returned to Cork and the family were advised that her mother’s cancer was terminal.

7. The plaintiff had counselling in light of her mother’s diagnosis and prognosis. She started that counselling in August 2020.

2 8. As mentioned above, the plaintiff has little memory of the accident itself. The first thing she remembers is becoming aware that her car had been pushed forward and to the left. She does not recall whether she banged her head or not, though she had no outward signs of having done so. The fact that there was no evidence of the plaintiff having banged her head in the collision initially took on some significance in relation to one aspect of the plaintiff’s injuries but this became less significant following the evidence of one of the plaintiff’s medical witnesses. She described herself as being dazed and being unable to process what was happening after the collision. When she tried to drive to her brother’s house, which she knew very well, she kept getting lost and could not find his house. She had to ring her brother to get his Eircode. She stayed the night in her brother’s. The following day she had a pain in her head and had to go back to bed.

9. She attended Dr. Wieneke on the 30th November 2020, three days after the collision. She did not have a general practitioner in Cork as she had been living in Dublin but Dr. Wieneke saw her as an emergency because she was in distress. I deal with Dr. Wieneke’s reports and evidence shortly. She was reviewed by Dr. Wieneke several times in the following weeks and months.

10. The plaintiff attended physiotherapy in Cork on a significant number of occasions over the course of several months, commencing at the end of January 2021. She said that her symptoms during this period were stiffness in the neck area going down into her shoulders, pain in her knees, and constant pain in the head, varying in intensity. The plaintiff says that the physiotherapist recommended acupuncture and she attended for that treatment. She did say that she really hates needles and anticipated that this would be a significant problem but the form of acupuncture involved very few needles. She described that prior to the acupuncture the pain was all over her head; she compared it to having a weighted horse-riding helmet on and someone applying pressure on different parts. She also described tingling in her scalp. After the acupuncture, the pain was concentrated in the back of the head. She says that the physiotherapist then recommended that she see a kinesiologist and she commenced attending one.

11. In the summer of 2021, the plaintiff visited a friend in Galway for a week. While there, her friend suggested she attend a practitioner in the Alexander Technique in the Galway area. The plaintiff found this beneficial and returned to Galway several times to have sessions with this practitioner. On these occasions she stayed in B&Bs or rented accommodation and stayed for short periods. Eventually she moved to Galway to avail of these sessions. She also continued getting physiotherapy in Galway.

3 12. After moving to Galway, the plaintiff became a patient of Dr. Grace Doyle, a general practitioner, in February 2022. I deal with Dr. Doyle’s reports and evidence shortly. The plaintiff says that at this time she was continuing to suffer stiffness when sitting and driving, and her knees were improving. The tightness in her neck radiated down into her shoulders and the rest of her body. When commuting from Galway to Dublin on the train after she returned to work she had to move and even at the time of the trial moved from her seat at regular intervals. She also explained how, when she visits the hairdressers, she kneels forwards when getting her hair washed rather than leaning her head back. Working at a screen also caused difficulty which she described as causing a tingling and tightness on the top of her scalp which then exacerbated the problem with the back of the head. She also described experiencing a sensation of moving even when she was not actually moving. She also gave evidence of the impact of stimuli such as light or sound. These caused tightness in her head and down the rest of her body. She can control these when working at home and has sought to do so in the office by removing bulbs near her desk. She described constant fatigue and having to arrange her days to avoid or reduce fatigue.

13. On one occasion, in September 2022, when she was driving near Limerick she experienced blurred vision. She attended Limerick Hospital and was a patient there for approximately a week. She was diagnosed with ocular migraine. In her evidence she said that she had previously had migraine on three occasions only. As a result of this episode and diagnosis, Dr. Doyle referred her to a neurologist.

14. The neurologist, Dr. Rahman, prescribed Botox injections. The plaintiff described these as a significant problem for her due to her hatred of needles. She received injections a few weeks after first seeing Dr. Rahman

15. The plaintiff’s evidence is that she returned to work in approximately November 2021 (a year post-accident) and that she returned to two half days per week. She was still working from home. She worked Monday and Friday because that left a gap between her working days which meant she could rest before and after working. This arrangement was facilitated by her using up annual leave days which she had saved up but when the annual leave was all used up a different arrangement was put in place. From February 2022, the plaintiff was working two full days per week. From about November 2022 she has worked two and half days per week, i.e. half a full working week, and is paid for half a week. She describes even this amount of work as very challenging and states that she would have been physically unable to work any more. She works from home mostly. Initially from November 2022 she had to travel to the office in Dublin once a week. This was subsequently changed and she now travels to Dublin once a fortnight. She travels by train.

4 16. The plaintiff says that prior to the accident she was getting on well in her job, was a hard worker and believes that she would have progressed to Assistant Principal grade. In fact, she took the examination for this grade prior to the accident but did not succeed in one part of the exam for reasons which the plaintiff explained in the hearing, unconnected with the accident. The plaintiff describes that upon her return to work in November 2021, she noticed how working at the PC caused her difficulties. She had previously used two screens and now using just one was extremely draining and made the pain in her head much worse. Because she was working from home she was able to lie down at regular intervals. Her evidence was that she had difficulty in retaining how to do tasks and in processing information. The plaintiff gave evidence that her concentration is less than it was before the accident. She needs to write things down and make ‘to do’ lists. She also said that she is no longer as good with numeracy as before the accident and that this will be a significant problem in participating in a competition for Assistant Principal. Prior to the accident she was doing project work, including meeting stakeholders, gathering user requirements and meeting systems’ suppliers. This involved complex information, business decisions, preparing very detailed documents, and making recommendations. She said that following the accident she is generally put on tasks that normally a person on a grade below her would do and now she really just tracks laptops and asset tags.

17. The plaintiff’s evidence was that prior to the accident she was very active and enjoyed sporting activities. She was a skier and snowboarder. She was a member of a rowing club in Derby. She also took up cycling towards the end of her time in England and continued that when she moved back to Ireland. She joined a cycling club and took part in events like the Wicklow 100. She also hiked in the mountains and enjoyed sea- swimming. The plaintiff’s evidence was that she is no longer able to participate in her sporting activities. She still swims in the sea but only in the hot months. She is no longer able to participate in cycling. She can no longer go hill-walking because she does not know if she will have the energy to complete the hike. The defendant did not seriously challenge her evidence that she has not been able to participate in these activities to date (though the defendant’s position is that the plaintiff will make a full recovery).

18. The plaintiff gave evidence that the injuries have greatly impacted on her social life and that she has to say no to things and has to carefully manage other things. “Your life becomes a lot less fun, a lot less fun and a lot more serious. It becomes about just keeping yourself good enough to work two-and-a-half days a week, you know. You do, like I’m definitely doing more stuff socially. One thing about going to Dublin for work it kind of was really nice meeting up with people...”

5 19. The plaintiff gave evidence that she injured her back in November 2023. She was putting cereal into a cupboard. She accepted this had nothing to do with the accident but did make the point that it may have occurred because her body was vulnerable.

20. The plaintiff said that due to her reduced working hours she had had to use up her savings (which she had intended using to buy a house).

21. The plaintiff suffered a broken wrist in summer 2023. This meant that she could not work for two months. She felt a gradual improvement in her physical symptoms and improvement in her form after being out of work for this period.

22. She also said that her concentration is very poor at work, and this is an ongoing issue, and then clarified that it is poor in all settings and not just at work.

23. In cross-examination, Senior Counsel for the defendant dealt with three separate aspects of the plaintiff’s pre-accident medical history: migraines; pre-accident neck pain and stiffness; and pre-accident stress and anxiety.

24. Under cross-examination, the plaintiff explained that she only ever had migraine on two occasions prior to the accident, though she confirmed that she was not given a medical diagnosis. She explained the circumstances in which they occurred and she associated them with stress. It was put to her that Dr. Rahman and Dr. Doyle both refer to a pre-accident history of migraine. The plaintiff said that she told both doctors of those previous headaches. She went on to say that she didn’t even know if they classified as migraines or, more importantly, if what she is experiencing since the accident is migraine. Senior Counsel for the defendant asked her if she was saying that what she has is not migraine and she replied “Whatever you want to call a pain in your head all the time. I don’t know what you call that.” She also later emphasised that she wanted to make it clear that she was not a person who suffered from migraines on an ongoing basis prior to the accident.

25. It was also put to her that she had some prior difficulties with her neck and shoulders. This was based on the information which she provided in the Injuries Board form and to Mr. Din, the orthopaedic surgeon called by the defendant. In the Injuries Board form, she was asked for details of “Other relevant medical condition”. She replied “Not a medical condition, but in periods of stress neck and shoulders would get tight and seek massage”. She confirmed that this was true. In his report, Mr. Din records that the plaintiff told him that she had minor stiffness in the cervical spine prior to the accident. The plaintiff emphasised that this stiffness refers to nothing more than a little bit of

6 tightness in her shoulders from sitting at a computer and that she could not have been participating in her sports if it was anything more than that.

26. The plaintiff was also asked whether she was stressed prior to the accident. Specifically, it was put to her that she told Dr. Campbell, the plaintiff’s consultant psychiatrist, that she was stressed prior to the accident, that she was looking after her mother, and that her mother died shortly after the accident. The plaintiff accepted that this was very stressful and expanded on how it involved (up to March 2020) travelling back and forth between Dublin and west Cork and then having to come to terms with the change in her mother’s prognosis. She also explained that the family were advised not to tell friends or other family members of her mother’s diagnosis and this caused additional stress. She also explained that she attended a counsellor in preparation for her mother’s death. She started attending the counsellor in August 2022, i.e., before the accident. It was put to her that she started attending this counsellor because she was stressed. She said that she attended her because she knew her mother was going to die and she wanted to stay strong. Ultimately, the plaintiff accepted that life was stressful before the accident. She then went on to say that her care of her mother would have been very different if she had not had the accident because she had to go to bed rather than sitting with her mother.

27. The contents of Mr. Din’s reports were put to the plaintiff. I deal with the plaintiff’s responses when dealing with Mr. Din’s evidence.

28. The plaintiff accepted that by the time she saw Dr. Aisling Campbell for the second time, on the 4th May 2023, there was an improvement in her neck stiffness. She also said that her mobility and flexibility was improving. She made the point that despite everything improving, including her neck, the pain in the back of her head was not improving.

29. Senior Counsel for the defendant also dealt with two further issues. The plaintiff was advised to see a neuropsychologist. She did not do so. Under cross-examination, she explained that this was because of the cost and that there was a very long waiting list. She said that she could have seen one sooner but would have to travel to Mayo on one of the days she was supposed to be working. Senior Counsel for the plaintiff cross-examined her on this, asking her about the cost as an explanation when she had continued attending the Alexander Technique sessions and incurring the cost of these. The plaintiff said that the Alexander Technique calms her nervous system.

30. Senior Counsel for the defendant also raised a letter that the Chief Medical Officer’s office sent to the plaintiff’s human resources manager immediately before the plaintiff returned to work in November 2021. This letter stated, inter alia, that “Ms. Sheehan

7 reports she is doing well and has now set next Monday as her date of returning to work. I thus advise Ms. Sheehan is medically fit for work. In view of the extended absence from work, I recommend the resumption on a phased basis for three months. The exact arrangements can be agreed with local management.” The plaintiff explained how her own GP, Dr. Wieneke, was also anxious for her to try to return to work at this stage and felt that her cognitive and concentration difficulties would improve. The plaintiff did, however, take issue with the description of her as “doing well” in the letter from the Chief Medical Officer and said that she was “doing better” in the sense that her neck was improving and she thought everything would keep improving, including the head. She said “doing better” was in the sense of attempting a return to work. She also emphasised that “return to work” at that stage meant returning to work for two half days per week and that she could take rests during her working hours. When she increased her hours to two and half days per week she travelled to Dublin weekly and then fortnightly for one of the days and she was extremely fatigued doing so.

Dr. Gitte Wieneke

31. Dr. Wieneke provided a medical report dated the 11th January 2021 and also gave evidence. Her evidence was that the plaintiff presented to her on the 30 th November 2020. She was very distressed. She had neck pain radiating into her upper back and arms. Her left knee was tender and grazed. In her evidence, Dr. Wieneke said that the plaintiff was complaining of a severe headache. She felt woozy and had difficulty concentrating which, the plaintiff said, made work impossible. Dr. Wieneke said that the plaintiff had no neurological deficit. Dr. Wieneke prescribed Vimovo and diazepam for pain and inflammation, and to help her relax. On examination the following day, the plaintiff was still very traumatized, sleeping poorly and still unable to concentrate. Dr. Wieneke prescribed anti-depressant medication to help her sleep. Dr. Wieneke saw her again on the 7th December 2020 and found her to be mildly improved, with her presentation being significantly calmer. She discussed with the plaintiff a referral for a CT Brain scan due to the fact that her headaches were “not fully settled”. Dr. Wieneke described these headaches as an ache starting with her neck and spreading into her head. Dr. Wieneke then reviewed the plaintiff on the 21 st December 2020. She described the plaintiff as seeming more settled but still unable to concentrate or sit in front of a screen for any length of time. The plaintiff was complaining of remaining achy all over and the doctor advised massages/physiotherapy. Dr. Wieneke expressed the view that the plaintiff would not be able to work “for the next couple of weeks” but that she would “make a full recovery in time.”

8 32. Dr. Wieneke said in evidence that she saw the plaintiff in October and November 2021 and at that stage they discussed that she should ease herself back into work on a part-time basis.

33. She described the plaintiff’s commitment to recovery as very impressive and that she did anything she was advised to do. As noted in the plaintiff’s evidence, she attended physiotherapy, acupuncture and kinesiology.

Dr. Grace Doyle

34. The plaintiff became a patient of Dr. Grace Doyle after she moved to Galway. Dr. Doyle completed an Injuries Board Medical Assessment form on the 26 th July 2022, almost two years post-accident. At that time, Dr. Doyle diagnosed the plaintiff as having classic whiplash type injury, an injured left knee, and increased anxiousness “re driving and general stress increased as she was also caring for her very ill mother.” The plaintiff’s mother had passed away at this stage so this refers to the period around the time of the accident. Dr. Doyle reported that the plaintiff had had a CT Brain scan and an MRI Brain scan, both of which were normal. Dr. Doyle described the plaintiff’s complaints in July 2022 as (i) daily stiffness and pain at the base of the neck/upper back and back of the head, (ii) mild soreness of knees if she does arduous exercise, (iii) a sensation of moving giving rise to dizziness, (iv) bright lights or loud noises can cause discomfort at the back of her head that causes fatigue and anxiety, and (v) anxiety about the future financially and work wise. On examination, Dr. Doyle found that the plaintiff’s lateral neck flexion to right and left was only one third of full range, looking to left and right was nearly full range, back and shoulder range of movement was full and free, CNS exam was normal. She reported that the effects of the injuries in the areas of balance/coordination, reaching, bending/squatting, climbing stairs, and walking were mild, in the areas of learning/intelligence, lifting/carrying, sitting, and standing were moderate, and the effects in the area of mental health were severe. Dr. Doyle felt that the expected time period to full recovery was three years from the date of the accident. Importantly, she expressed the view that an opinion by a neurologist would be helpful and one was arranged. Dr. Doyle summarised the position as follows “She sustained soft tissue injury to her knee that has resolved and a moderately severe whiplash. Her way of life was disrupted and this has all had a sustained significant effect on her mental health. She has an intolerance of bright lights, loud noises and a subjective sensation of movement when viewing a moving landscape that brings dizziness. She has addressed all the problems and is well motivated and making sustained progress. It will take eighteen to twelve months to make a full recovery.”

9 35. In her subsequent report of the 14th December 2023 (three years post-accident), Dr. Doyle noted that the plaintiff was complaining of ongoing daily stiffness at the back of the head and neck, pain at lower back with prolonged sitting, intermittent headaches at the top of the head, and daily tingling of scalp especially if working with her head flexed. Dr. Doyle recorded that the plaintiff described her knees as “okay”. The plaintiff continued to complain of anxiety state/depression. Her sleep was okay. The doctor noted that the plaintiff had changed her working arrangements so that she only had to commute to Dublin every two weeks rather than every week and that she was less stiff as a result, and was walking with more ease. As noted above, the plaintiff had broken her wrist in the summer of 2023 and was off work for two months. The plaintiff told Dr. Doyle that her form was improving because she could feel sustained gradual improvement which was accelerated by the two months of no work or travel.

36. On examination, Dr. Doyle found that the plaintiff had tender taut posterior neck and upper back bilaterally, neck flexion was possible to three fingers from the chest, looking to the right was possible to 45 degrees and only 30 degrees to the left, neck extension was only possible to 5 or 10 degrees, forward bend was possible to the shins and lateral flexion of the back bilaterally was as far as the knees, back extension was too sore to examine range. The doctor found that the plaintiff’s mental health remained fragile and that she was easily moved to tears. She described the effects of the injuries on the plaintiff’s balance/co-ordination, vision, hearing, reaching, climbing stairs, and walking as mild and the effects on her mental health, learning/intelligence, lifting/carrying, bending/kneeling/squatting, sitting, and standing as moderate. Dr. Doyle indicated that no further investigations were necessary and that a full recovery was expected. She estimated that the expected time period to full recovery was two to three years (as per Dr. Rahman’s assessment).

37. Dr. Doyle commented that the accident occurred at a stressful time of the plaintiff’s life and that the injuries placed a further emotional and physical burden on her as a carer for her mother. She also observed that the plaintiff’s menstrual cycle did not resume after the accident, and this gave rise to an abrupt onset of harsh menopause. In her evidence, she said that the accident must have had a traumatic effect on the plaintiff’s body to cause such an abrupt onset of menopause. She described the effects of such an abrupt onset of menopause as horrendous. HRT was prescribed. She noted that the plaintiff sustained a classic whiplash injury that was severe but showing gradual improvement. She observed that the plaintiff was very motivated to address healing of her neck and upper back and was availing of a number of treatments. She remained anxious and depressed despite

10 being on anti-depressants and HRT, though there had been some improvement due to having to take time out of work after breaking her wrist.

38. Dr. Doyle described the plaintiff as highly motivated for recovery. She felt that no further investigation was required

39. Dr. Doyle expanded on the contents of her reports in her evidence. She said that when the plaintiff first attended her, she was surprised to hear that she had moved to Galway solely to avail of the Alexander Technique. Dr. Doyle was familiar with the technique and the practitioner and its use by people with complex pain. She said that the main thing the plaintiff was complaining of was pain at the back of her head and down her neck, shoulders and upper back. She said the plaintiff was tearful and that the interview did not go in a straight line; that it was hard to interview the plaintiff. Dr. Doyle also gave evidence that the plaintiff reported great intolerance to bright lights and to noises and the sense that things were moving around her. The doctor said she was concerned about this because they are consistent with a head injury but the plaintiff could not recall if she had struck her head. She later said that she was reassured by the contents of the CT and MRI scans, but it meant there was no explanation for these symptoms. She said that there was no firm history of a head injury, but the plaintiff was behaving like someone who possibly had such an injury.

40. Dr. Doyle’s prognosis and her view that no further investigations were required must now be seen in the context of her evidence at trial. Dr. Doyle said she was struck by the manner in which the plaintiff gave her evidence. She noted the lack of focus on the part of the plaintiff and her inability at times to focus on addressing a question. I also noted these features when the plaintiff was giving evidence. This worried the doctor because she was aware of the plaintiff experiencing memory and concentration difficulties but that in a medical consultation they would not have time for these difficulties to become fully apparent. The doctor said that based on what she observed of the plaintiff in court she would be referring her to a specialised neurological memory clinic.

41. In questioning from the Court, Dr. Doyle differentiated between the pain which the plaintiff was experiencing in the back of her head and pain in the top of her head. She was of the view that the pain in the back of the head is most likely connected with the pain in the plaintiff’s neck and that hopefully it will improve as the neck improves whereas the headaches that she gets otherwise (which were described as daily) were more related to the trauma she experienced. She confirmed that this should improve with time as well. However, Dr. Doyle emphasised that the plaintiff’s functional ability is of more concern to her than the pain. In relation to the plaintiff’s mental state, the doctor felt that her anxiety

11 and low mood were caused by being in constant pain and that it should improve as the pain eases.

42. She said that having received Dr. Rahman’s report and his conclusion in relation to post-concussion syndrome, the plaintiff’s symptoms made sense to her. She also felt the plaintiff was showing cognitive deficits and that these could be explained by post- concussion syndrome.

43. She explained that one of the medications which had been prescribed for the plaintiff, Neurontin, is to try to reduce unpleasant neurological symptoms like the intolerance of lights and sounds.

44. Dr. Doyle, in dealing with her prognosis, was of the view that the plaintiff’s neck pain and the pains at the back of her head will eventually ease. She did note that in Mr. Din’s second report the results of his neck and knee examination were precisely the same as in his first report, suggesting no improvement. This was, she said, despite the intensive physiotherapy and other treatments undergone by the plaintiff. She did note an improvement when she examined the plaintiff a year after Mr. Din’s second report. She did say that while these injuries will resolve, she was concerned about the cognitive effects and that it can happen that people do not get back to their previous level of functioning.

Dr. Aisling Campbell

45. Dr. Aisling Campbell, consultant psychiatrist, examined the plaintiff on the 2nd December 2021 for the Injuries Board. She completed an Injuries Board Medical Assessment Form. She also gave evidence at the hearing.

46. In the Injuries Board form, Dr. Campbell described the plaintiff reporting that the need to care for her mother and the imminent death of her mother had been a stress before the accident, and that since the accident she had ongoing pain in the back of her head, that she felt tired with reduced energy and felt unable to participate in her activities such as cycling. She also felt more anxious while cycling and around noise and traffic, she was easily upset, and her concentration and motivation were poor. Dr. Campbell also recorded that after the accident the plaintiff felt unable to concentrate on work and developed pain in her neck with desk-work which limited the amount of time she could work. She also recorded that the plaintiff felt easily stressed by work, and that noise and bright light increased her pain. Dr. Campbell also recorded that the plaintiff had started attending a psychotherapist in August 2020 in preparation for her mother’s death but could not keep up these appointments after the accident. Dr. Campbell felt that the plaintiff had

12 a mixed anxiety and depressive disorder. Dr. Campbell described the plaintiff as presenting “as anxious and tearful; she was an extremely vague and disorganised historian and her poor concentration was evident at interview, although there was no evidence of any organic brain disorder.” The doctor felt the effects on the plaintiff’s mental health were “moderate” according to the grading scheme provided in the Injuries Board template. While Dr. Campbell does note that the plaintiff was stressed prior to the accident and that this and the loss of her mother may have played a role in some of her symptoms, she earlier expressed the view that all of the plaintiff’s symptoms/disability were caused by the accident. The doctor was of the view that the plaintiff would benefit from formal psychiatric treatment as well as some cognitive behavioural therapy. She said this was a difficult diagnosis and that she felt the plaintiff’s chronic pain was significant and was likely having a significant effect on her mood but there were also some anxiety symptoms present.

47. Importantly, in the context of there being no evidence of the plaintiff banging her head, Dr. Campbell at that stage was of the view that a post-concussive syndrome was unlikely because it was unlikely that the plaintiff had suffered a head injury. Dr. Campbell said “She has chronic pain and this would explain, in part, her low mood, poor concentration and motivation and sleep disturbance. She has some anxiety symptoms and avoidance of situations that remind her of the accident. She reports that she was stressed prior to the accident, and she lost her mother after the accident, and these factors may have played a role in some of her symptoms, but she does not appear to have had any psychiatric disorder prior to the accident. Overall I think that her symptoms are consistent with a mixed anxiety depressive illness, as opposed to post-traumatic stress disorder, or a post-concussive syndrome.”

48. Dr. Campbell saw the plaintiff again on the 4 th May 2023. In her report, she recorded that the plaintiff told her that her neck stiffness had improved. The plaintiff agreed with this in her evidence but emphasised that it was not back to the way it was prior to the accident. The plaintiff also told Dr. Campbell that she continues to have some pain in the back of her head and that she remains very fatigued and disabled by this fatigue. In her summary and opinion, Dr. Campbell stated “In summary, as per my initial assessment of her, she describes a number of symptoms, which do suggest post- concussive syndrome. However, it is difficult to make this diagnosis given that she does not appear to have had a clear head injury, apart from hitting the headrest in the course of the accident, and this would not normally, in my experience, be associated with a significant head injury. I think it is possible that there is a psychogenic overlay to her symptoms at an unconscious level; i.e. there is no evidence that she is deliberately

13 producing symptoms but they may be a manifestation of anxiety or low mood, in other words a somatoform disorder. I think it would be useful to get a neurologist’s opinion and certainly it would be helpful to her to also see a neuropsychologist. She believes that her GP in fact intends to refer her to a neurologist and she thought that an appointment may have been arranged for October 2023.” Dr. Campbell explained in cross-examination that “a psychogenic overlay to her symptoms” means that the symptoms have a psychological cause rather than a physical cause. In her evidence, Dr. Campbell explained that she expressed this view at a point where she could not make a diagnosis of post-concussive syndrome and was trying to explain the cause of the plaintiff’s symptoms.

49. In fact, the plaintiff did see a neurologist, Dr. Rahman, and his conclusions were addressed with Dr. Campbell in her evidence. Dr. Rahman was of the clear view that the plaintiff was suffering post-concussive syndrome and Dr. Campbell readily deferred to his view. In her evidence, she said that, as reflected in her notes of her first consultation, she had queried post-concussive syndrome because the symptoms of being easily stressed by work, noises and light and these causing an increase in pain are indicative of post- concussive syndrome. She explained in evidence that while psychiatrists do not treat post- concussive syndrome, they do see people who have had head injuries and so it is one of the differentials that psychiatrists must have some knowledge of. She also said that psychogenic overlay could run parallel to a diagnosis of post-concussive syndrome.

50. Dr. Campbell’s evidence reflected the evidence of Dr. Doyle in saying that the plaintiff was a very vague and disorganised historian and that it was difficult to get a “clear kind of linear history”. She explained that this may have been contributed to by anxiety but that “it probably did reflect poor concentration, which certainly is a feature of post- concussive syndrome.”

51. Dr. Campbell was also of the view that the plaintiff had anxiety and depressive symptoms at the time of her first consultation, the depressive symptoms had gone by the time of the second consultation and on the basis of what she had heard in court the plaintiff still had some such symptoms but that they are less to the fore. She agreed under cross- examination that from a psychiatric perspective she had made a “pretty good recovery”.

Dr. Habib Rahman

52. Dr. Rahman saw the plaintiff and provided a report on the 12th October 2023 (post Dr. Campbell’s second report). He also wrote in similar terms to Dr. Doyle (who had referred the plaintiff to him) on the 8th October 2023. He noted that the plaintiff was prescribed Vimovo if needed, mirtazapine 30mg (and other medications unconnected with

14 the accident). He noted the plaintiff’s narrative of the accident and its aftermath, including the plaintiff’s description of having difficulty finding her brother’s house and having a headache and dizziness in the days that followed. He recorded her complaints since the date of the accident as being neck pain, headache, mood changes, decreased concentration, disrupted sleep, increased day-time sleeping, photophobia, phonophobia, difficulty looking at the computer, decreased concentration, tingling sensation on the scalp, decreased workload, fatigue and lack of energy. He also noted that MRIs of her brain, neck, and cervical spine did not show any structural abnormality. On examination he found that she was very nervous, teary and down. He found that CNS higher mental function was normal, and her gait, and power, tone and reflexes in the upper and lower limbs were within normal levels. Neck movements were very difficult and painful, and the plaintiff’s neck and shoulder muscles were very stiff. Dr. Rahman diagnosed the plaintiff as having post-traumatic concussion type syndrome with post-traumatic worsening of migraine. He said that there was no structural problem in the plaintiff’s brain but “there is a lot of chemical problems with the pushing millions of nerve fibre to affect her day to day life activity.“ He prescribed Neurontin and magnesium. He advised Dr. Doyle to put the plaintiff on HRT. He advised Vimovo and also Botox injections on the PREEMPT protocol 155U to the stiff muscle. The plaintiff subsequently had Botox injections. Dr. Rahman’s prognosis was that it would take a couple of years to improve.

53. Dr. Rahman also gave evidence. Importantly, he dealt with the question of whether the plaintiff could have post-traumatic concussion type syndrome in the absence of any specific head injury or structural problem and he confirmed that she could, that a blow to the head is not necessary and that post-trauma concussion can be caused by the contrecoup type movement of a whiplash.

Mr. Nigel Tennant

54. Mr. Tennant is an actuary. I deal with his evidence below.

Mr. Robert Din

55. The plaintiff was examined by Mr. Robert Din, a consultant orthopaedic surgeon, for the personal injuries board. This examination was on the 25th November 2021, a year post-accident. A significant issue arose at the hearing in relation to the completion of a “Neck Disability Index”. I will return to this.

56. Mr. Din described the plaintiff’s complaints as pain in her lower cervical spine radiating into the right and left shoulder region and stiffness in the morning requiring

15 exercises to relieve the stiffness, pain in the lower lumbar spine radiating into the right and left buttock region, stiffness in the lumbar spine, and bilateral anterior knee pain and difficulty walking more than thirty minutes. On examination, Mr. Din found that the plaintiff had bilateral paraspinal muscle spasm and tenderness of the cervical spine over C4/5, C5/6 spinous processes. He found that the plaintiff was just able to put her chin on her chest, that extension of cervical spine was reduced by 20% and that lateral flexion and rotation was reduced by 10%. The plaintiff was tender over L4/5 and L5/S1. Her range of motion was restricted; the plaintiff was just able to reach her knees; and extension was reduced by 20% and lateral flexion and rotation was reduced by 10%. There was mild quadricep wasting around both knees, tenderness at the medial joint lines and a small effusion on the left knee. Flexion was reduced in both knees.

57. In describing the effects of the injury, he ranked the effect on carrying/lifting, bending/stooping, sitting, standing, climbing stairs and walking as mild. He described the effect on all other areas, including mental health, learning/intelligence, and consciousness/seizure as normal. It is unclear to me how Mr. Din expressed this view in respect of mental health, learning/intelligence, and consciousness as there is nothing in his report to the effect that he assessed these areas at that time. I therefore disregard this part of his report.

58. In his report, Mr. Din described aggravation of a pre-existing condition. He recorded that the plaintiff reported cervical spine stiffness previously but minimal pain prior to the accident.

59. Mr. Din concluded by saying that the plaintiff had done fairly well following the accident and that she had residual stiffness in the cervical spine with pain radiating into the right and left shoulder region and residual stiffness in the lumbar spine. He also concluded that she suffered soft tissue injuries to her knees. He said that the plaintiff sustained a soft tissue head injury and that these symptoms had resolved. He estimated that with physiotherapy, the knee and lumbar spine injuries would resolve within the following six to twelve months. In evidence, Mr. Din said that his opinion at the time of his first consultation was that the plaintiff had a mild whiplash injury and a soft tissue flexing extension injury to the lower lumbar spine. He believed that she would make a good recovery over six to twelve months with physiotherapy.

60. The contents of Mr. Din’s report were, of course, put to the plaintiff in cross- examination. She did not agree with Mr. Din’s statement that she was able to put her chin on her chest. She rejected his statement that she had a soft tissue injury to her head and that the symptoms have resolved (one year post-accident). She also rejected his finding

16 that her neck injury was an aggravation of a pre-existing condition. She said while she had been in an accident in 2007, she had gone to work that day and did not have to get any medical attention. In relation to other stiffness and getting massages she said this was just normal day-to-day stiffness from working at a computer.

61. Mr. Din provided a further report at the request of the defendants. This was provided on the 25th November 2022, two years after the accident. The description given by the plaintiff, as set out in this report, was broadly the same as in his earlier report. His findings on clinical examination were the same as in his earlier report save that the limitation on extension of the cervical spine and lumbar spine was less than previously (from 20% to 10%), and flexion of the plaintiff’s left knee was slightly less restricted. His opinion and prognosis were the same. His view was that the injuries would, with physiotherapy, resolve over the following six to twelve months. The plaintiff had had an MRI since his previous examination. He concluded that she had likely exacerbated degenerative changes in the facet joints of the lower cervical spine. He concluded that “the claimant has a good prognosis and is likely to return to her pre-injury level of cervical spine, lumbar spine and knee function, post-physiotherapy. The claimant is unlikely to be restricted in her future employment activities, post physiotherapy.”

62. Mr. Din confirmed in cross-examination that the plaintiff’s injuries were genuine and that they had not improved by the time of the second consultation.

63. I referred earlier to an issue in relation to the Neck Disability Index Form attached to Mr. Din’s first report. The copy that is attached to the report is a computerised form with the answers that apply to the plaintiff marked with an “X”. Mr. Din’s evidence was that he completed the form on his computer during his consultation with the plaintiff and according to her answers. He said that the plaintiff did not have the filled out form which she was required to have at the time of the consultation. He said that the form was completed with the plaintiff present and according to the responses given to his questions. He said “I did ask the lady did she have her completed medical Neck Disability Index with her at the time of the examination, she said she did not.” The plaintiff says that she brought a completed form with her. Her evidence was that she understood that she had to bring a copy with her and that she probably filled it in the night before the consultation. She says that in fact she completed two forms, gave one to Mr. Din and held on to the other because she had been advised to keep copies of all documents. Her evidence was that she also took a photo of the one that she kept. The plaintiff said in re-examination that at the conclusion of the consultation, Mr. Din had not asked for the form, so she gave it to him at that stage. Mr. Din disputed this in evidence. He gave a different account. He

17 said that he filled in the form on the basis of the oral answers the plaintiff gave at the consultation.

64. When the answers contained in the form attached to Mr. Din’s report were put to the plaintiff she said that they were not her answers. She produced the photo which she said that she had taken of the form that she had kept. The answers contained on that were indeed different to those in Mr. Din’s form. The picture which emerges from the form attached to Mr. Din’s report is very different to the one that emerges from this copy.

65. I do not propose to refer to all of the answers but simply to give some examples to illustrate the stark differences. Section 1 deals with Pain Intensity and asks the patient to mark an answer which best describes the intensity of the pain at that point in time. The possible answers range from “no pain at the moment” through very mild, moderate, fairly severe, very severe, and “worst imaginable”. In Mr. Din’s copy the answer that is marked is ”The pain is very mild at the moment”. In the photo of the copy produced by the plaintiff the answer that is marked is “The pain is moderate at the moment”. In Mr. Din’s copy the answer to Section 3 Lifting is “I can lift heavy weights but it gives extra pain” whereas the answer in the plaintiff’s copy is “Pain prevents me from lifting heavy weights but I can manage light to medium weights if they are conveniently positioned”. Section 5 deals with headaches and the answer that is marked in Mr. Din’s copy is “I have slight headaches, which occur infrequently”. The answer in the plaintiff’s copy is “I have headaches almost all the time”. Under Section 6 Concentration, the answer that is marked in Mr. Din’s form is “I can concentrate fully when I want to with slight difficulty”. The answer that is marked in the plaintiff’s copy is “I have a lot of difficulty in concentrating when I want to”. Finally, by way of example, in Section 7 Work, Mr. Din has recorded “I can only do my usual work, but no more” and the plaintiff’s copy has recorded “I cannot do my usual work.”

66. I am satisfied that the answers in Mr. Din’s copy are incorrect. This may be because the wrong answers were ticked when the plaintiff was giving her answers to Mr. Din at the consultation or, more likely, that the plaintiff completed a form and brought it to the consultation and the answers were incorrectly transposed. The position is far from clear. It is an oddity that the plaintiff would have filled in two forms and taken a photo of the copy that she was keeping rather than simply filling in one form and taking a photo of that, or, at least if she did fill in two forms, taking a photo of the one that she was giving away. However, on balance, the evidence supports the plaintiff’s account. Mr. Din was certain that the plaintiff did not provide a form and that he filled in the answers. He did not say how he can be so certain or how he particularly recalls this case. It seems to me that the plaintiff is more likely to recall particular aspects of her own case. Secondly, the answers that are marked are very different to what is recorded by other witnesses and

18 indeed very different to the plaintiff’s own description of her symptoms in evidence. The answer in relation to work makes no sense against the established background facts. Mr. Din’s recorded answer is “I can only do my usual work, but no more”. This answer is incomprehensible in circumstances where the plaintiff had returned to work after a year’s absence just three days before the examination and where she had returned to two half days per week rather than her normal full week. The only explanation given by Mr. Din is that he did not ask about her employment and that he asked “can she do her usual work in the house. Can she do the cleaning, the cooking and so forth. Those type of things.” The difference is also illustrated by the answer to the first section about pain. Mr. Din records the plaintiff as saying that she has very mild pain. However, at the same time she is recorded by Dr. Doyle as having ongoing pain and she had moved to Galway to continue to avail of the Alexander Technique to address the pain. That is not consistent with “very mild pain”.

CONCLUSIONS

67. I am satisfied that the plaintiff suffered whiplash injury to her cervical spine, a related injury to her lumbar spine, and injuries to her knees. Indeed, there is no real dispute about the occurrence of these injuries, though there is some dispute about the seriousness of them.

68. I also find that she suffered anxiety and depression following the accident, though there were elements of both prior to the accident.

69. The accident also caused the abrupt onset of menopause.

70. I am also satisfied that the plaintiff suffered post-concussion syndrome and post- concussion worsening of migraine. Initially, it was not accepted by the defendant that the plaintiff suffered post-concussion syndrome in circumstances where there was no evidence that the plaintiff actually suffered a head injury. However, Dr. Rahman’s evidence in this regard was quite clear that concussion type injury could be caused even if the plaintiff did not suffer a bang to the head. Following Dr. Rahman’s evidence, the possibility of post- concussion syndrome was not really challenged by the defendant. In any event, I am satisfied on the evidence that she has experienced post-concussion syndrome. The plaintiff herself did not really accept that the accident had caused a worsening of migraine. This was based on the fact that she had only experienced what she believed to be migraines on two or three occasions prior to the accident. She seemed to feel that this diagnosis suggested that she was a person who frequently suffered from migraines and they, or the frequency of them, had simply been exacerbated by the accident, whereas she felt that as

19 a person who had only ever had two migraines, the accident in fact caused the post- accident migraines. I accept Dr. Rahman’s evidence in this regard. He was aware that the plaintiff had a limited number of migraines before the accident. Indeed, he states in his report “Migraine, few in her life but worse after the accident”. Thus, he was armed with that information when he made his diagnosis.

71. The parties were agreed that the plaintiff’s post traumatic concussion syndrome is the dominant injury. In my view, the post-concussion worsening of migraines must be taken together with this.

72. The parties were also agreed that the correct approach is to assess the proper level of damages in respect of this dominant injury, then to assess the correct level of damages for each of the other injuries, and to award an uplift to the amount in respect of the dominant injury to take account of these other injuries.

73. Noonan J in Zaganczyk v John Pettit Wexford Unlimited Company & anor [2023] IECA 223 considered the proper approach where there are multiple injuries. He made clear that whatever the mechanics of the exercise are, the court must “stand back and take an overview of all the injuries together and their impact on the particular plaintiff”. He also said “Whatever mathematical approach is adopted, it is important not to lose sight of the global impact of all the injuries on the particular plaintiff concerned. The plaintiff is entitled to be compensated for all the suffering they have endured, be it from one or ten discrete injuries suffered at the same time.” He also emphasised the need for any award to be proportionate “both to the maximum [level of damages in the Guidelines] and awards made to other plaintiff”. He indorsed the approach of Murphy J in McHugh v Ferol [2023] IEHC 132. Murphy J said at paragraph 24 of her judgment in McHugh:

“24. It appears to me that a fair and transparent means of assessing what the uplift should be in any given case is to categorise each of the additional injuries according to the bracket that it would fall into were that the main injury and then discount the award to allow for the temporal overlap of the injuries. In this way, both parties can see precisely how the court arrived at its decision and the level of discount allowed for overlapping injuries. Any other method leaves the plaintiff and the defendant guessing as to how the court arrived at its decision.”

74. Murphy J assessed the value of the dominant injury in that case and then went on to individually value each of the additional injuries, calculated the total value of those additional injuries, and then considered what amount of that total for the additional injuries

20 should be awarded as an uplift taking into account the “roll up factor and the overlap of injuries.”

75. This was also the approach adopted by Coffey J in Keogh v Byrne [2024] IEHC 19. Coffey J once again emphasised the need for any award to be fair to all parties and proportionate, noting the express terms of the Personal Injuries Guidelines and the judgment of Noonan J in Zaganczyk. He went on to say at paragraph 12 that:

“12. It is evident from the foregoing that in a case where a court is required to assess general damages for multiple injuries having regard to the Guidelines, the trial judge should follow a two-stage process in order to ensure that the overall award is fair to all parties and proportionate. First, the court must ensure that the plaintiff is compensated for all their pain and suffering which results from their injuries. This requires the trial judge to consider the relevant guidelines for each injury and to apply the principles of fairness and proportionality in order to assign a value to each injury that is fair to all parties and proportionate. Secondly, and whether it is possible to do so by reference to the plaintiff’s ‘most significant injury’ or not, the court is obliged to ensure that the overall award is itself fair to all parties and proportionate. This requires the trial judge to step back from the individual injuries and their corresponding assigned values in order to holistically evaluate the cumulative effect of all of the injuries on the plaintiff and to adjust the ultimate award in order to avoid over or under compensation. In carrying out this task, the trial judge must have regard to the overlap of injuries and the maximum and equivalent awards available under the Guidelines for suffering of similar gravity to that of the plaintiff’s overall injury profile. Where a discount is applicable, the method of adjustment - whether it be by way of deduction from the value assigned to the plaintiff’s lesser injuries or from the initial aggregate amount, or whether it is expressed as a percentage or a specified sum – appears to be of little practical consequence provided that the ultimate award of general damages is so measured as to achieve overall fairness and proportionality.”

76. I am satisfied that the parties are correct that the post-concussion syndrome is the dominant injury. The other physical injuries have, of course, significantly interfered with the plaintiff’s life (I will discuss this further below) but it seems to me that the symptoms arising from post-concussion syndrome have contributed most to the adverse impact on the plaintiff’s life and career.

21 77. Those symptoms are fatigue, photophobia, phonophobia, tingling and tightness in the scalp, pain in the plaintiff’s head, particularly in the back of her head, poor concentration, stress and irritability. I am satisfied that the plaintiff has suffered these symptoms and that these symptoms have meant that the plaintiff has not been able to work full time since her return to work and has not been able to function at her previous level. This manifests in a number of ways. The plaintiff is only able to work two and a half days per week and even within those limited hours she has to carefully manage her energies. She does so by taking regular breaks when working at home. At some stages these breaks have involved her lying down. She travels to the office in Dublin once per fortnight and, in order to have energy for her work, she travels the day before. When in the office she uses a spare room to take breaks. The symptoms have also interfered with the nature of her work. I accept that prior to the accident she was involved in dealing with complex information, assisting in business decisions, preparing detailed documents and making recommendations, and that since the accident her work is more limited to tasks that are usually done by a lower grade in the Civil Service. The plaintiff did not call any evidence from her employer but the plaintiff’s evidence in this regard was not challenged. The plaintiff described herself as a motivated and hard-working person. Indeed, her doctors described her as being very motivated towards recovery. Thus, the inability to do her work full-time and at the level that she previously enjoyed has had a significant impact on her life. The plaintiff claimed that she would probably have been promoted to Assistant Principal level if the accident had not happened. I do not believe that I can award damages specifically in respect of loss of opportunity in circumstances where no evidence was called to support this claim, and no claim has been made in respect of loss of earnings based on the difference between Assistant Principal grade and Higher Executive Officer grade. It seems to me that I can have regard to it as evidence of the plaintiff’s ambition and how her injuries have, in a general sense, adversely impacted on her working life. I have not assessed her loss of earnings claim on the basis that it is likely that she would have been promoted.

78. These symptoms have also interfered with her life outside of work. Fatigue has impacted on her social life and her ability to participate in her recreational and sporting activities. The evidence, which I accept, is that prior to the accident she was an active, fit person who skied, snowboarded, hiked and cycled and that she does not have the energy for these since the accident.

79. Dr. Rahman’s evidence in relation to the post-concussion syndrome was that normally a person recovers within one month to one year but that it differs from person to person. His evidence in relation to the plaintiff was that the post-concussion syndrome

22 should resolve within one to three years. This must be understood as meaning one to three years from the date of his evidence because his evidence was given where four years had already passed. It seems to me that I should assess the appropriate level of damages on the basis of this prognosis.

80. The possibility of the plaintiff having a cognitive deficit was also raised at the hearing. For example, Dr. Doyle said that on the basis of what she had heard during the trial she would be referring the plaintiff to a memory clinic. However, there is no expert evidence of any cognitive deficit caused by the accident. Importantly, the plaintiff was advised to attend a neuropsychologist. The question of whether or not there is a cognitive deficit falls within this area of expertise. The plaintiff did not attend a neuropsychologist. She gave two main reasons for not doing so. The first was the cost of doing so. However, she continued to attend for Alexander Technique sessions at a significant cost. I am satisfied that these sessions were of benefit to the plaintiff, but this was a choice on the part of the plaintiff to prioritise these sessions over consulting a neuropsychologist as had been advised. Secondly, she gave evidence that there was a long waiting list for a neuropsychologist. There was no dispute about this. She also said that she could have got an appointment relatively quickly if she had been willing to travel to Mayo but that this would have been on a Monday and that this was one of the days that she works. Neither of these explain why the plaintiff would not have taken an appointment even if that was a significant time in the future. Thus, I am not satisfied that there is a good reason why the evidence of a neuropsychologist could not have been available. I therefore can not conclude that the plaintiff has suffered a cognitive deficit.

81. I am, of course, obliged to have regard to the Personal Injuries Guidelines. They do not expressly deal with post-concussion syndrome. However, the parties were agreed that I should treat it as a head injury, which is provided for in the Guidelines, or at least that I may derive considerable assistance from that section of the Guidelines. I was referred to the Introduction Section of the Guidelines where it is stated:

“...the Guidelines do not include many rarely encountered injuries...In any such case the structure established by the Guidelines may nonetheless provide assistance. A court when dealing with a novel or infrequent injury should seek to value the injury by reference to the damages guided for equally significant injuries in the Guidelines to ensure that the award made will be fair, just and proportionate within the scheme of damages therein provided for...”

82. The parties were also agreed that the nature and extent of the injuries are most closely reflected in category 3(c)(iii) and/or (iv) of the Guidelines. These provide:

23 “(iii) A good recovery will have been made. The claimant will be able to participate in normal social life and return to some form of work, but restoration of all normal function is not implicit. There may still be persistent defects such as poor concentration and memory or disinhibition of mood which may interfere with lifestyle, leisure activity, relationships and future work prospects. Cases involving one or two discrete epileptic episodes or a temporary resurgency of epilepsy, but there is no risk of further recurrence beyond that applicable to the population at large, fall into this category.

(iv) Brain damage similar to (iii) above but where the claimant is able to return to a level of work materially similar or the same to that which he/she was able to carry out prior to the injury.”

83. The plaintiff’s injuries do not fit neatly within either of these two categories in that the plaintiff remains unable to return fully to her pre-accident work, social life or recreational activities. It seems to me that category (iv) is applicable where a claimant is, at the point of assessment, able to return to work. That arises from the use of the present tense. She therefore does not currently fit within category (iv). However, the prognosis is that she will recover within a one to three year period. It follows that she will be able to return to work materially similar to or the same as her pre-accident work. It seems to me the injury is more accurately reflected by category (iii), but regard must be had to the likelihood that she will be able to return to a level of work materially similar or the same as her pre-accident work. This can in any event be accommodated by the requirement to have regard “to the duration of the symptoms”. Regard must also be had, of course, to the other individual matters set out in category (c), including impact of the injury on work, the interference with quality of life and leisure activities, and the impact on relationships. The impact of the injuries in these areas has been significant. It seems to me that when these factors together with the worsening of the migraines are balanced the appropriate level of damages within the range in category (iii) is €75,000.

84. As discussed above, the plaintiff also suffered other injuries.

85. I am satisfied on the basis of the evidence of Dr. Campbell that the plaintiff also suffered psychiatric damage.

86. Section 4 of the Personal Injuries Guidelines sets out the following considerations which must be taken into account in assessing damages for psychiatric damage: (i) age; (ii) interference with quality of life and education; (iii) impact on work; (iv) impact on interpersonal relationships; (v) whether medical assistance has been sought; (vi) nature, extent and duration of treatment undertaken and/or medication prescribed; (vii) likely

24 success of treatment; (viii) prognosis, to include any future vulnerability; (ix) the extent and/or nature of any associated physical injuries.

87. Specific regard must be had to Dr. Campbell’s evidence that there were elements of anxiety and depression present before the accident, so not all of the plaintiff’s post- accident anxiety and depression were caused by the accident.

88. I am satisfied that the injuries in this case fall within category 4(A)(c). This deals with “Moderate psychiatric damage” and states “While there may have been problems of the sort associated with factors 4(iii) and (iii) above, there will have been marked improvement by the date of the trial and the prognosis will be good.” Dr. Campbell’s evidence was that by the time of trial the plaintiff had made a pretty good recovery. In my view, the appropriate level of damages is €20,000.

89. I am also satisfied that the plaintiff suffered a whiplash injury and this has caused pain and stiffness in her neck and shoulders radiating into her back and into the back of her head. She also suffered pain and stiffness in her lumbar spine. The plaintiff did not make very much of the lumbar spine stiffness and pain, and I have therefore considered it as part of the overall injury to the spine. She did suffer a separate injury to her lumbar spine in November 2023 which she ascribes to her vulnerability after the accident but there is no medical evidence linking the two and I have therefore not included it. I am satisfied that the plaintiff’s evidence and the evidence given by Dr. Wieneke and Dr. Doyle more accurately reflect the seriousness of the plaintiff’s injuries than the reports and evidence of Mr. Din. I am of this view for the following reasons. Mr. Din accepts that the plaintiff’s injuries are genuine. However, his description of them as being mild and of some of them being resolved within a year of the accident is not consistent with any of the other evidence, including the plaintiff’s own evidence. Nor is it consistent with the plaintiff only being able to work half-time. Importantly, however, even on Mr Din’s evidence the plaintiff has suffered from whiplash injury symptoms for three years (in his second report he estimates that with further physiotherapy the plaintiff should recover from these injuries within a further six to twelve months). In relation to the pain in the back of her head, Dr. Rahman was of the view that this is contributed to by both the neck injury and the post- concussion syndrome. Dr. Doyle noted that the plaintiff had suffered a severe whiplash injury and in December 2023 noted a gradual improvement.

90. Neck injuries are provided for in Category 7 of the Guidelines. It seems to me that the most relevant sub-categories are 7(A)(b)(iii) or (c). These provide respectively:

25 “Cases involving soft tissue or wrenching type injury and disc lesion of the more severe type resulting in cervical spondylosis, serious limitation of movement, permanent or recurring pain, stiffness or discomfort and the possible need for further surgery with increased vulnerability to trauma.

Injuries which may have accelerated and/or exacerbated a pre-existing condition over a shorter period of time, usually less than five years. This bracket will also apply to moderate soft tissue injuries where the period of recovery has been relatively protracted and where there remains an increased vulnerability to further trauma or permanent minimal symptoms.”

91. In my view, the injury to the plaintiff’s neck (and the difficulties in her shoulders and lower back) does not fall squarely within either of these sub-categories, but is most closely reflected by the second part of category (c). The medical evidence is that the plaintiff is likely to recover, so therefore the plaintiff should not be left with “permanent or recurring pain, stiffness or discomfort” which is one of the ingredients of category (b)(iii). While category (c) deals with where recovery has been relatively protracted, as in this case, it seems to me that the extent of the impact on the plaintiff’s life is not fully reflected in category (c). The neck injury affects her working life and her social and recreational activities. The chronic pain also affects her mood. Essentially, the neck injury and related symptoms have physically interfered with her comfort in work and have contributed to her being unable to participate in sports due to limitation of movement, stiffness, pain and discomfort. However, the medical evidence is that these have improved and will continue to improve.

92. It was put to the plaintiff that she had pre-existing difficulties with her neck. This was based on the report of Mr. Din in relation to a previous accident in 2007. She was also cross-examined about availing of massages for muscle stiffness. The plaintiff dealt with these in her evidence. In relation to her previous accident in 2007 she said that she did not have to take any time off work, even on the day of the accident, and did not have to have any medical attention. I am satisfied that this was not a pre-existing injury or difficulty which should have the effect of reducing the appropriate level of damages to the plaintiff in respect of the neck injuries. In relation to the need for massages in times of stress, I am satisfied that this is no more than normal day to day stiffness.

93. In circumstances where all of the medical evidence is that the plaintiff will improve, the neck injury can not be treated as a permanent injury or as one which will require surgery. Nonetheless, it has been protracted and significant. It seems to me, therefore

26 that the neck injury falls between category (b)(iii) and (c). If this injury was being assessed alone I would be satisfied that the appropriate level would be €30,000.

94. The plaintiff also suffered an injury to her knees. I am satisfied that these injuries fall within category 7(N)(c)(i) of the Guidelines. This provides:

“This bracket includes injuries similar to those in the immediately preceding bracket [i.e., injuries involving dislocation, torn cartilage or meniscus which results in minor instability, wasting, weakness or other mild future disability...injuries which accelerate symptoms from a pre-existing condition over a prolonged period of years] but where the injury is less serious and involves shorter periods of acceleration or exacerbation and also includes injuries such as lacerations, twisting or bruising injuries.

(i) Where a substantial recovery or a recovery to nuisance level takes place within one to two years. This bracket will also apply to shorter term acceleration and/or exacerbation injuries lasting between one and two years.”

95. Dr. Doyle reported on the 12th December 2023 that the plaintiff described her knees as being okay. This means that her knee injury had resolved within three years. While this is longer than the period in this bracket, in my view this injury is really one that falls within this category. It should be valued at the higher end of this bracket and I attribute €11,000 to this injury.

96. The evidence of Dr. Doyle was that the plaintiff experienced an abrupt onset of menopause as a result of the trauma of the accident. There was very little focus on this at the hearing. This is a serious life event which, in an appropriate case, may attract significant damages. There are three relevant considerations in this case. The plaintiff was forty-nine at the time of the accident. She was therefore approaching an age where menopause would have commenced naturally within a relatively short period of time. This must be taken into account when assessing the level of damages. However, based on the evidence of Dr. Doyle, the abrupt onset of menopause is particularly harsh. It is different in its impact on the person than the natural onset. Thirdly, the plaintiff has been prescribed HRT to mitigate the effects of menopause. Unfortunately, while there is reference to “impact on menopause or hormonal function” in section 6(E) of the Guidelines (dealing with the reproductive system), there is no category dealing with the situation where the onset of menopause is caused by an accident. It seems to me that the only guidance really offered is category 6(E)(c) (though even this is of very limited assistance). On the basis

27 of this guidance and taking into account the three factors identified in this particular case it seems to me that the appropriate level in respect of this injury is €15,000. I wish to emphasise that it may be that in a different case this injury would attract significantly more than this. That will, of course, depend on the circumstances of the case and the arguments that might be made.

97. The aggregate level of damages in respect of the injuries other than the post- concussion syndrome and post-concussion migraines is €76,000.

98. As noted above, the plaintiff must be compensated for all of her suffering and any award must be fair and proportionate. A holistic or global assessment of the impact of the injuries must be taken. In this case, specific regard must be had to the fact that there is relatively significant overlap between the consequences of some of the plaintiff’s injuries; for example, her work and sporting activities were significantly impacted by both the post- concussion syndrome symptoms and the symptoms of the whiplash injury. This has to be reflected in the calculation of the appropriate level of the uplift in order to avoid overcompensation. On the other hand, some of the injuries are entirely separate from each other save that they occurred at the same time; for example, the knee injuries are separate from the post-concussion syndrome; and therefore the discount in respect of these injuries must be less. In my view, the correct uplift is €55,000. Thus, I assesses general damages at €75,000 plus €55,000, that is, €130,000.

99. It remains to deal with the question of special damages. There was some lack of clarity about aspects of the loss of earnings and the following is subject to the parties having an opportunity to address the Court on any specific issue.

100. There was agreement between the parties in respect of past loss of earnings up to November 2023. That figure was agreed at €31,442.35. It was also agreed that the plaintiff and her employer had an agreement under which the plaintiff would repay her employer a sum of €44,504.71. It was also agreed that there is an RBA liability of €10,150 and that this has to be deducted from the sum for special damages. Taking these figures into account the loss of earnings to November 2023 is €65,797.06 (€31,442.35 + €44,504.71 – €10,150).

101. A report was provided by Mr. Nigel Tennant, actuary. He also gave evidence. He provided capitalised figures for future loss of earnings, including loss of pension and pension lump sum, if the plaintiff continued to be unable to work full time (i.e. if she continued on two and half days per week) for two, three or five years. It seems to me that the medical evidence constrains me to finding that the plaintiff will only continue to be

28 unable to work full time for either two or three years. There is no basis in the medical evidence upon which I could conclude that the plaintiff will remain on half time for five years. I am satisfied that it is more likely that recovery will take closer to three years than two years and therefore the correct figures in respect of future loss of earnings, loss of pension and loss of pension lump sum are €52,425, €11,025 and €4,051. The total is €67,501.

102. To this must be applied a Reddy v Bates [1983] IR 141 deduction. In my view this discount should be relatively modest in circumstances where the plaintiff was fit and healthy before the accident, she works in the Civil Service and therefore has a level of job security which other claimants might not have, and very importantly, the period in question is short. The shortness of the period means that there is less risk of the exigencies of life which might have prevented the plaintiff from working arising. Bolger J in Corless v HSE [2023] IEHC 622 had to consider the appropriate Reddy v Bates discount where the plaintiff worked in the public service and the period in question was only two years. Bolger J applied a 10% discount. It seems to me there is little material difference between a two year and a three year period and I therefore find that a 10% discount is the appropriate level. This, of course, only applies to any future losses. I will ask the parties to calculate the correct figure based on future loss of earnings and future loss of pension and pension lump sum for three years from the date of hearing minus 10% discount.

103. The parties also agreed a vouched figure of €22,367.18 in respect of various items of special damages.

104. I will therefore make an award of €130,000 for general damages plus the above figures ([€65,797.06 + €22,367.18 + an amount to be agreed in respect of future loss of earning and future loss of pension and pension lump sum including a 10% Reddy v Bates discount on the relevant amounts) in respect of special damages.

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