One of the most significant developments in the area of personal injury litigation within the last number of years has been the establishment of the Court of Appeal. Apart from reducing the lengthy delays previously associated with appeals to the Supreme Court, initial decisions have seen large reductions in High Court awards and clarification of the principles to be applied by trial judges when assessing damages.
Awards for general damages have been significantly reduced in a number of cases. In Payne v Nugent the Plaintiff suffered modest injuries to her shoulder, neck and back as a result of a road traffic accident and was no longer being actively treated within fifteen months of the accident. The Court of Appeal reduced the High Court award for general damages from €65,000 to €35,000. The Plaintiff in Nolan v Wirenski was also involved in a road traffic accident, suffering injuries to her shoulder, hand and thumb. While she received extensive treatment, including surgery, and continued to have symptoms, the Plaintiff’s credibility was in issue as surveillance had shown that she was capable of engaging in a number of activities which she maintained had caused her difficulty. An award of €120,000 for general damages in the High Court was reduced on appeal to €65,000. Further decisions have seen damages for modest neck and psychological injuries being reduced from €90,000 to €40,000 and €130,000 to €65,000 (Anthony Shannon v Debbie O`Sullivan and Rita Shannon v Debbie O`Sullivan).
The trend has not, however, all been one way as seen in the decision in Murphy .v. County Galway Motor Club Limited and Others in April of this year when the sum of €200,000 awarded by the High Court for general damages to a nineteen year old Plaintiff whose leg had to be amputated was increased to €275,000, the Court of Appeal being of the view that the Plaintiff was entitled to greater damages for future pain and suffering due to his young age.
The Court of Appeal made a point of highlighting in its decision in respect of the costs in the Shannon v O`Sullivan cases that the decisions in Payne v Nugent and Nolan v Wirenski, did not, as it put it,
“recalibrate damages downwards”
and that they were merely clarifying the principles to be applied when awarding damages for personal injuries so as to ensure that
“the award made is just, equitable and proportionate”.
Prior to the establishment of the Court of Appeal the Supreme Court had already held in MN v SM, in reducing an award of €600,000 to €350,000 in a case involving sexual abuse, that an award of damages must be proportionate. Judge Denham stated that there should be
“a rational relationship between awards of damages in personal injuries cases”.
The Court of Appeal, however, went further in Payne v Nugent. It identified €400,000 as the perceived “cap” on general damages and did not accept that Ms Payne’s injuries were worth one sixth of what would be awarded to someone who was catastrophically injured, finding that the High Court award was neither reasonable nor proportionate. This principle was reiterated by the Court of Appeal in Nolan v Wirenski which acknowledged that the figure at the top of the notional scale was probably around €450,000 and held that consideration should be given to where a Plaintiff’s injuries were on the scale of
“minor to catastrophic injury”
when deciding whether or not an award was reasonable.
It is not therefore sufficient simply to consider if an award is reasonable in relation to the injuries sustained, it also has to be reasonable in terms of being proportionate to awards for injuries which are more or less serious.
The purpose of compensation in personal injury cases is to try to put the injured party back in the position he or she was in before the injuries occurred. In highlighting the inadequacies of an award of damages in achieving this goal, particularly where a Plaintiff will not make a full recovery, Judge Irvine commented in Nolan v Wirenski that
“The assessment of damages in personal injuries is not a precise calculation; it is not precise and it is not a calculation”
and that the aim was to provide “reasonable” compensation for pain and suffering. Awards of damages should therefore be:
“(i) Fair to the Plaintiff and the Defendant; (ii) Objectively reasonable in light of the common good and social conditions in the State; and (iii) Proportionate within the scheme of awards for personal injuries generally”,
as previously held by the Supreme Court in MN v SM. While the trial judge should be in a position to consider what is fair to both parties and, particularly in light of the revised Book of Quantum which has issued recently, what is proportionate within the scheme of awards for personal injuries generally, it remains to be seen how a trial judge would consider what is reasonable
“in light of the common good and social conditions in the State”
and what, if any, evidence would have to be put before the court for such factors to be properly considered.
Judge Irvine also noted that while it was reasonable to have consistency between awards for similar injuries the same injury could, however, have different impacts on different individuals. The factors which the trial judge should have regard to in assessing damages included the severity of the injury, whether it caused trauma and distress, the extent of treatment required and whether or not it required hospitalisation, the effect on the Plaintiff’s work and the impact on the Plaintiff’s lifestyle.
The Court of Appeal may be of the view that its recent decisions are about the principles to be applied when awarding damages rather than a recalibration of damages but it has not been slow to interfere with High Court awards, making quite drastic reductions in some cases, and has sent a very clear message that “modest injuries” should only attract “modest damages”. Regardless of the monetary effect on awards there will, at the very least, be a more consistent approach to damages in personal injuries cases and increased certainty for both Defendants and Plaintiffs which is to be welcomed.
- Significant reductions in damages.
- Awards should be proportionate.
- Notional scale capped at €450,000.
- Increased consistency.