Sandra Miley (plaintiff) v Kevin Daly (defendant).

Personal Injuries - Damages - Quantum - Plaintiff suffering from shock and depression and from a loss of the sense of smell - Whether award of the High Court should be increased.

Supreme Court (Mr Justice O'Flaherty, Mr Justice Lynch and Mr Justice Barron); judgment delivered 7 December 1998 (ex tempore).

The plaintiff was cycling when the defendant's car came out of a side road, struck her and she fell to the ground hitting her head. She was not wearing a crash helmet. The High Court measured contributory negligence at 10 per cent. She suffered as a result from insomnia, pain and depression and a loss of smell and taste. The High Court awarded £32,000 for pain and suffering.

The Supreme Court, on appeal, held that the loss of the sense of smell was a significant loss, particularly for a young person, and increased the £32,000 award for pain and suffering to £45,000.

Padraig McCartan SC and Garnet Orange BL for the plaintiff; J. Gerard Danaher SC and Barry Hickson BL for the defendant.

Mr Justice O'Flaherty said that the plaintiff had had an accident on 16 January 1994, when she was struck by the defendant's car, knocked from her bicycle and suffered a head injury. She was not wearing a helmet and the trial judge had held that she was guilty of contributory negligence amounting to 10 per cent. The appeal against this finding was not pursued. The plaintiff was awarded £32,000 for pain and suffering to date and into the future.

The plaintiff was now appealing the amount of damages. She had suffered from insomnia and depression. She was in shock and had severe mood swings. Her menstrual cycle and libido were affected. Mr Justice O'Flaherty said that these were significant injuries in themselves and would entitled her to a reasonable sum in damages. However, the plaintiff had also lost her sense of taste and smell. She had recovered her sense of taste prior to the hearing in the High Court on 4 February 1998, but continued to suffer from a severe loss of the sense of smell. She could not distinguish different odours and this was a permanent condition. This loss must rank as a serious disability for a woman of only 30 years.

While the Supreme Court could not fine tune the award made by the High Court, in this case it was significantly low. Mr Justice O'Flaherty said that the award should be increased to £45,000.

Solicitors: Chris Ryan (Dublin) for the plaintiff; Good & Murray Smith & Co (Dublin) for the defendant.