Corless v HSE (Approved)

Factual and Procedural Background

This case concerns an assessment of damages related to injuries sustained by the Plaintiff in a workplace accident on 10 January 2016 shortly after starting employment as a care attendant at the Defendant's hospital. The Plaintiff attempted to return to work but was unable due to injuries and has not returned since. The Plaintiff's injuries include severe and debilitating back pain, hip pain resolved by replacement surgery, and other injuries to chest, shoulder, and ankle. The Plaintiff was certified unfit for work by the Defendant's occupational health doctors, culminating in a permanent unfitness certification in 2021 and recommendation for early retirement on health grounds. The Plaintiff's employment remains in place but without pay since sick pay ceased. The Plaintiff's only current income is a social welfare widow's pension.

Legal Issues Presented

1. Whether the Plaintiff has failed to mitigate her loss by not seeking alternative employment or engaging in light duties.
2. The appropriate assessment of damages for loss of earnings, future loss, pension loss, and general damages related to the Plaintiff's injuries.
3. The impact of the Plaintiff's undisclosed involvement in her daughters' dance school on the assessment of damages.

Arguments of the Parties

Defendant's Arguments

• The Defendant contends the Plaintiff could have sought alternative part-time, light, sedentary work and criticizes her for not doing so.
• The Defendant's vocational assessor alleged the Plaintiff ceased employment by choice and lacked motivation to return to work.
• The Defendant criticizes the Plaintiff for not following advice to seek community employment schemes involving light duties.
• The Defendant asserts a general duty on the Plaintiff to mitigate losses, drawing analogy to breach of contract cases requiring mitigation.
• The Defendant submitted photographic evidence suggesting the Plaintiff's activities were inconsistent with claimed disabilities.

Plaintiff's Arguments

• The Plaintiff argues the Defendant failed to plead mitigation properly and thus cannot rely on it.
• The Plaintiff maintains she sought alternative light duties with the Defendant but was refused unless fully fit for her original role.
• The Plaintiff denies any failure to mitigate, supported by evidence that her efforts to return to work were rejected by the Defendant.
• The Plaintiff acknowledges involvement in her daughters' dance school but clarifies it is as a mentor and adviser, not as a paid teacher or active dancer.

Table of Precedents Cited

Court's Reasoning and Analysis

The court accepted the medical evidence from the Plaintiff’s doctors that the accident triggered significant, ongoing back pain and other injuries, which have materially impaired her ability to work and perform daily activities. The court found the Defendant’s evidence less persuasive, particularly as it did not account for the Plaintiff’s permanent unfitness certification from the Defendant’s own occupational health doctors.

Regarding mitigation, the court found the Plaintiff had proactively sought alternative light duties with the Defendant but was denied unless fully fit for her original role. The Defendant’s vocational assessor was unaware of key facts such as the Plaintiff’s certification of unfitness and prior attempts to return to work, undermining the Defendant’s assertion of lack of mitigation. The court concluded the Plaintiff was not at fault for failing to mitigate her losses.

The court considered the Plaintiff’s undisclosed involvement in her daughters’ dance school as a mentor and adviser but not as an active teacher or income source. While this omission was regrettable, it did not contradict the medical findings of permanent unfitness for work, though it was relevant to assessing the impact of injuries on the Plaintiff’s enjoyment of life.

In assessing damages, the court carefully applied the Book of Quantum guidelines, placing the Plaintiff’s primary back injury at the lower end of severe and permanent, with secondary injuries at the upper end of minor. The court adjusted general damages downward by 20% to reflect the Plaintiff’s omission regarding her dance school involvement and her ongoing engagement in mentoring activities.

The court accepted the Plaintiff’s actuary’s calculations for loss of earnings, including appropriate premia, interest, and future losses with a 10% deduction for employment security and proximity to retirement.

Holding and Implications

The court AWARDED DAMAGES to the Plaintiff as follows:

• Total loss of earnings to date and future (including pension loss and interest): €301,639.71
• General damages for pain and suffering (after 20% deduction): €72,000
• Special damages (agreed): €4,000
• Total award: €377,639.71

The court found that the Plaintiff did not fail to mitigate her losses and that the Defendant’s refusal to accommodate alternative light duties was a significant factor in her continued unemployment. The Plaintiff’s involvement in the dance school was not inconsistent with her injuries but was relevant to the assessment of general damages. No new legal precedent was established; the decision primarily applied existing principles on mitigation, loss assessment, and evidential credibility to the facts of the case.