The High Court has ruled that a successful plaintiff in a personal injuries action was not entitled to special damages to allow him to compensate his employer for sick pay.


Mr Hynes was injured in a road traffic accident in 2011. He sued the driver of the other vehicle and the driver’s employer, Kilkenny County Council. In 2018, the defendants conceded liability for the incident but the parties could not reach agreement on the amount of compensation. Mr Hynes argued that his injures persisted up until 2018 whereas the defendants contended that they had mostly resolved by 2013.

The court applied the Book of Quantum to the plaintiff’s injuries because the issuing of the proceedings pre-dated the new Judicial Guidelines. Mr Hynes was awarded €70,000 for physical injuries and €45,000 for the psychological injuries. He was awarded a further €58,000 for special damages.

A further issue of controversy arose between the parties. Mr Hynes argued that he was obliged to compensate his employer for the sick pay he had been paid arising from the incident. The defendants disagreed that he was under any such legal obligation.

Terms of employment contract

The parties agreed that Mr Hynes’ contract of employment included a right to sick pay and did not include an obligation to repay such monies if recoverable by way of compensation. However, Mr Hynes argued that he had, through his solicitor, given an undertaking to refund the sum of €40,833.02 to his employer.

In deciding against the plaintiff on the point, Mr Justice Simons stated that the contract of employment contained a right to receive sick pay, which was not conditional on an obligation to reimburse the monies paid in the event of receiving compensation. In relation to the purported undertaking given to his employer to repay the money, Mr Justice Simons stated that the plaintiff cannot convert an unrecoverable item into a recoverable item in personal injuries litigation by waiving a contractual right. The judge also found that the purported undertaking given by the plaintiff to his employer was not legally enforceable.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.*