Damages reduced in the Court of Appeal

In the matter of Rita Shannon, Plaintiff/Respondent and Debbie O’Sullivan, Defendant/Applicant [2015 No. 166]

The number of personal injury awards by the High Court being substantially reduced by the Court of Appeal is gathering pace.

Judgment in the above case comes after several other cases where awards were reduced on appeal. Most recently in Nolan v Wirenski, the Court of Appeal reduced a total award of €125,650 in a personal injuries action to €65,000.  See here.

In her judgement delivered on March 18 2016, Ms Justice Mary Irvine of the Court of Appeal halved damages awarded to Rita Shannon and Anthony Shannon by Justice Donnelly on the of  25th March 2015 at the High Court, Kilkenny.

damagesJustice Donnelly assessment of general damages in respect of Mrs Shannon had been one of €130,000.

Justice Donnelly assessed general damages in respect of Mr Shannon at €90,000 in total.

However Ms Justice Mary Irvine on Appeal expressed how she was “in the unenviable position of having to take issue with the conclusions of the learned High Court judge”.

The Defendant maintained that each of the awards were excessive to the point that they should be set aside.

The Plaintiff’s injuries were sustained in a road traffic accident on 7th November 2012.

A robust challenge to the validity and extent of the injuries sustained by both Plaintiffs was maintained by the Defence.

Inter alia submissions were made that the Plaintiffs were examined several weeks post-accident, not by their long established G.P. but rather by a retired G.P.

The Plaintiffs had not missed any time from work.

Furthermore it was submitted that the Plaintiffs had no further medical review until being seen by a Doctor McCarthy in February 2014 some 14 months after their initial attendance.

Justice Donnelly at first instance interpreted this as evidence of stoicism on the part of the plaintiff’s and she considered and held that the fact that each of the Plaintiffs had not lost any time away from work to be evidence of honesty rather than any basis upon which to challenge the credibility of the plaintiff’s or the extent of their injuries as alleged.

Both Plaintiffs had pre-existing asymptomatic degenerate changes which were rendered symptomatic.

Both the Plaintiffs developed Post Traumatic Stress Disorder.

Counsel for the Defence, Finbarr Fox SC submitted, that the severity of the injuries sustained by both Plaintiffs had to be measured by reference to the extent to which their injuries had affected their enjoyment of life or deprived them of their ability to participate in activities which they would otherwise have enjoyed.

Measured in this way, he submitted that the awards of Justice Donnelly were disproportionate to the injuries sustained and disproportionate to awards commonly made in more serious cases.

Having considered the principles which are to be applied in the assessment of general damages and in actions at appeal, Justice Irvine confirmed that it is clear that an Appellate Court should not interfere with the award of a trial Judge if it is only for the purpose of making some moderate adjustment. This is because the Appellate Court has not heard or seen the witnesses give their evidence and also the Court needs be cautious about second guessing the Trial Judges assessment as to what constitutes appropriate damages in any given case.  It should only intervene where it is satisfied that the award made was not appropriate to the injuries sustained and considers that the award made constitutes an erroneous estimate of the damages properly payable.

Justice Irvine rejected the proposition advanced by Senior Counsel for the Plaintiff, Mr Aidan Doyle SC, that the Plaintiff’s claim should not be measured on a scale of damages which starts at €0 and ends at €450,000.00.  Mr Doyle submitted that general damages were effectively capped in catastrophic injury cases given the substantial special damages such actions attract.

Justice Irvine however rejected any view that a Plaintiff can have their general damages reduced on the basis that they are to be awarded a very large sum in respect of their claim for Special Damages. Special Damages represented a calculation of actual losses, past and future, which leaves the matter of General Damage to be assessed entirely separately.

Justice Irvine went on to assert that most Judges when it comes to assessing the severity of any given injury and the appropriate sum to be awarded in respect of pain and suffering to date will be guided by the access to questions such as the following:-

  • Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
  • Did the plaintiff require hospitalisation, and if so, for how long?
  • What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?
  • What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?
  • Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?
  • While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?
  • If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?
  • What limitations had been imposed on their activities such as leisure or sporting pursuits?
  • For how long was the plaintiff out of work?
  • To what extent was their relationship with their family interfered with?
  • Finally, what was the nature and extent of any treatment, therapy or medication required?

Justice Irvine found it difficult to see much evidence of pain, suffering, treatment or limitation on lifestyle such as would support the award for General Damages made by the Justice Donnelly.

Whilst Justice Donnelly considered the Plaintiff’s lack of engagement of the medical process, the need for medical attention and treatment etc. was stoical, Justice Irvine considered that the fact that they did not return seeking further medication, treatment or advice, had to be somewhat indicative of the level of pain and suffering that they were, in fact, experiencing.

In terms of the psychiatric injuries sustained by each Plaintiff, Justice Irvine observed that whilst Justice Donnelly made findings of fact in respect of each Plaintiff and charted their recovery she did not however state her conclusions as to the severity and frequency of their symptoms such as flashbacks and nightmares, nor her conclusions as to the extent to which and over what period these had affected the Plaintiffs and their enjoyment of everyday life.

Certainly, there was no evidence that the severity of such psychiatric symptoms required the Plaintiffs to seek any professional assistance.

Justice Irvine concluded that regardless of the deference which an Appellate Court must have forward to the Judgment of the Trial Judge she was satisfied that the awards of general damages in favour of the Plaintiffs were not just and fair or proportionate to the injuries received. Neither were they proportionate to those commonly made in personal injury claims involving greater or lesser injury.

Justice Irvine allowed Rita Shannon €40,000.00 in respect of general damages with an additional €25,000.00 in respect of pain and suffering in the future – a reduction of 50%.  In respect of Mr Shannon she allowed €25,000.00 in respect of general damage for pain and suffering to date and €15,000.00 in respect of pain and suffering in the future – a total award of €40,000.00 and a variation downwards of €50,000.00.

The full Judgment is available here.

Terry Lacey

Partner

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