Modest injuries should attract moderate damages

Has the Court of Appeal halted the perceived rise in Personal Injuries Damages in Ireland?

There have been two major changes to how we deal with Personal Injuries claims in Ireland in recent years.

Firstly The Courts and Civil Law (Miscellaneous Provisions) Act 2013 implemented new limits, which apply in Circuit and District Court cases in all proceedings issued after 3 February 2014. This was the first increase since 1991 and in respect of proceedings issued after this date, the monetary limit of the Circuit Court increased from €38,000 to €75,000 and of the District Court from €6,350 to €15,000. Notably, for personal injury actions only, the new monetary jurisdiction of the Circuit Court rose to €60,000.

New rules at District Court level provided for measures such as interim applications to Court for discovery and rulings in personal injury cases in respect of minors or persons with a disability.

Secondly the formation of the Court of Appeal in 2014, which the Chief Justice described as the “most important development” in the structure of the courts since the foundation of the State changed the landscape, allowing for greater access to justice in all matters. The formation of the Court also heralded an elevation of position of a number of experience High Court Justices and the appointment of a number of new replacements.

Increases in jurisdiction are usually associated with an increase in the award of damages. The appointment of a number of new High Court judges certainly added to the uncertainty as to what extent the rise might be.

It was only a matter of time before the Court of Appeal got hold of an assessment of Damages however.

In Payne v Nugent (Court of Appeal 2015/67) the court comprising of recently appointed appellate Judges Irvine, Ryan and Peart heard an appeal against the decision and judgment of High Court (Cross J.) dated 15th January 2015. In that case the court assessed general damages for pain and suffering to date in the sum of €45,000and pain and suffering into the future in the sum of €20,000. The Defendant/Appellant sought to argue that the award was excessive.

The Court of Appeal judgement was delivered by Irvine J. The Court set out the principles which guide the court when exercising its appellate jurisdiction, referring to the judgment of McCarthy J. in Hay .v. O’Grady1992 ILRM and referred to it in the following paragraphs

• Firstly, that an appellate court does not enjoy the opportunity of seeing and hearing the witnesses unlike the trial judge who hears the substance of the evidence and also observes the manner in which it is given and the demeanour of those giving it. The arid pages of transcripts seldom reflect the atmosphere of the trail.
• Secondly, if the findings of fact made by the trial judge are supported by credible evidence this court is bound by those findings regardless of how voluminous and apparently weighty the testimony against them may be given that truth is not, he advised, a monopoly of any majority.
• Thirdly, insofar as inferences of fact are drawn by a judge at first instance, it is open to an appellate court to substitute its own inferences. However, he cautioned against such an approach where those inferences were drawn from the judge’s assessment of the oral evidence.

The Court of Appeal set out the approach to be taken in assessing damages and referred to the perceived cap on general damages for the most serious injuries at €400,000. The Court had to consider whether the award in the instant case of €65000 general damages where the Plaintiff suffered from neck and back pain from which she had almost fully recovered was fair and reasonable?

The following passage shows how the Court dealt with the issue at hand.

“So one of the questions I ask myself when considering whether the award made in this case was reasonable or proportionate is whether the trial judge could have been within the appropriate range when he awarded the plaintiff a sum that placed her injuries in terms of value approximately one sixth of the way along an imaginary scale of damages for personal injuries which ends at €400,000 for the catastrophically injured plaintiff. In my view, thus assessed, the award which he made to the plaintiff was not reasonable or proportionate. That is not to say that this is a formula that must be applied by every judge when assessing damages for pain and suffering but for me at least it provides a type of benchmark by which the appropriateness of the award made may helpfully be evaluate.

For my part I fear there is a real danger of injustice and unfairness being visited upon many of those who come to litigation seeking compensation if those who suffer modest injuries of the nature described in these proceedings are to receive damages of the nature awarded by the trial judge in this case. If modest injuries of this type are to attract damages of €65,000 the effect of such an approach must be to drive up the awards payable to those who suffer more significant or what I would describe as middle ranking personal injuries such that a concertina type effect is created at the upper end of the compensation scale. So for example the award of general damages to the person who loses a limb becomes only modestly different to the award made to the quadriplegic or the individual who suffers significant brain damage and in my view that simply cannot be just or fair”.

The Court said that “Modest injuries should attract moderate damages” and reduced the award to the Plaintiff to €35000 general damages.

Damian McGeady, Partner, Lacey Solicitors.

“Even drivers of emergency vehicles, who may be exempted from ordinary speed limits, are not exempted in terms of liability for negligence. They are not given carte blanche to drive without due care. However, in determining whether due care was taken, the court is entitled to give the object of the journey due weight. If this category of defendant is to be held potentially accountable in the law of tort, it would make no sense to conclude that gardaí when performing public order duties could be deemed to be under any less of an obligation in terms of the duty of care which they owe to members of the public”.

Irvine J in Fagan v Garda Commissioner & others [2014] IEHC 128

This is an obiter view given in the action where the innocent Plaintiff was knocked to the ground by riot police in a public order situation. The matter did not concern a road traffic accident. It did restate the position that Garda officers do owe a duty of care to other road users when driving, even in an emergency.

In Fagan the Defendants argued inter alia that the defendants did not owe a duty of care to the plaintiff as to the manner in which they exercised their public order function.

In support of the assertion the defendants relied inter alia upon the decision of The House of Lords in Hill v Chief Constable of West Yorkshire Police [1989] 1 AC 53, the decision of Kearns P. in Lockwood v Ireland [2011] 1. I.R. 374 and that of Hedigan J. in L.M c Commissioner of An Garda and others [2012] ILRM 132. In further support the defendants relied upon Glencar Explorations v Mayo County Council (No.2) [2002] 1 I.R 84 in which the court concluded that a public authority could not be sued in negligence in relation to any decision made by it when exercising its statutory duties, except in exceptional circumstances.

Irvine J. rejected the defendants’ submission that by analogy the court should apply the reasoning in Glencar.

The court noted that the reliance of the Hill case did not afford such immunity from suit and noted that in that case Keith L.J. at para 59 stated precisely the opposite, saying “There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence.”

Irvine J. rejected that the court should conclude that there is some higher threshold which the plaintiff must establish, such as malice or recklessness, so as to succeed in liability.

In Fagan the court dismissed the claim on the circumstances.

Legislation

Section 87 of the Road Traffic Act 2010 provides that the requirements, restrictions and prohibitions of the Road Traffic Acts relating to driving and use of vehicles do not apply to emergency vehicles where the use does not endanger the safety of road users.

It is important to note however that this affects the drivers of the emergency vehicles criminal liability rather than civil liability.

The Courts will of course hold that the social utility of saving life or property or dealing with crime is a factor which merits being taken into consideration when one applies the test of the “reasonable person” which is the test which underlies the standard of care in negligence.

Emergency drivers do not enjoy blanket immunity however.

Case Law

In the High Court (unreported June 1993) case of Strick v Treacy the Plaintiff was driving her car on the Tallaght By-Pass approaching a junction controlled by traffic lights which were green in her favour. A Garda car, which was escorting a fire engine on its way to a school fire, travelled through red lights with its flashing lights on. It transpired that the fire engine was some considerable distance behind the Garda car (the Garda vehicle having failed to stay close so to speak to the fire engine it was escorting). The fire engine then, also with it’s flashing lights on, emerged in breach of traffic lights crossing the path of the Plaintiff who collided with same.

O’Hanlon J apportioned liability three ways.

He held that the Garda driver should have done more to halt the traffic, particularly having regard to the large gap that he had allowed to open up between him and the fire engine.

The driver of the fire engine was negligent because he had a clear unobstructed view for a long distance to his right when he neared the junction.

The Plaintiff was negligent as the Court held that she should have been alerted to the presence of the Garda on the highway and should have been “doubly cautious” when she saw the large fire engine approaching from her left with its lights flashing.

See also O’keefe v Ladola & Dublin Corporation, Circuit Court 12th January 2000, where an emergency driver was held liable in negligence.

What grounds must insurers have to allege fraud in personal injury actions?

In Saleh -v- Moyvalley Meats (Ireland) Ltd, Cross J held that the plaintiff had not deliberately exaggerate his claim. The defendant insurers sought to allege that he had. One medical expert retained by the Defendant had concluded that the plaintiff was “untruthful in relation to his disability”.

The Judge considered whether he should award aggravated or exemplary damages. Aggravated damages compensate the victim of a wrong for mental distress (or ‘injury to feelings’) in circumstances in which that injury has been caused or increased by the manner in which the defendant committed the wrong, or by the defendant’s conduct subsequent to the wrong.

According to the Law Commission REPORT ON AGGRAVATED, EXEMPLARY AND RESTITUTIONARY DAMAGES (2000) “The aim of exemplary damages is two-fold: to punish the defendant and to deter both the defendant and others from engaging in conduct that is extremely malicious or socially harmful, in Lord Devlin’s own words “to teach a wrongdoer that tort does not pay”. An exemplary damages award may also be intended to vindicate the rights of the plaintiff, or, as Lord Devlin stated to vindicate the strength of the law. It has the additional, incidental effect of providing compensation and satisfaction to the plaintiff. In the context of the Constitution, the particular purpose of exemplary damages is to vindicate and defend individual constitutional rights, to punish the defendant’s disregard of them and to deter their breach“.

In the Saleh case Judge Cross considered the test of the reasonableness of the Defendant’s approach saying “I fully accept that it is reasonable to give parties in civil litigation latitude to make their case in a robust manner. Indeed, such latitude is necessary to enable the parties to join issue on what is between them. But as I stated in Lackey, the courts must be vigilant in not allowing irresponsible or overenthusiastic invocations of such pleas. It is not new or startling to suggest that any allegation of fraud is made on peril and should not be made unless, at the very least, there is strong evidence to sustain it. The only thing that might be considered startling is that this antique rule should seemingly be forgotten“.

The Court held that the defendants conduct of the action was not irresponsible or unreasonable.

The Court did caution that were it not for the report of the medical expert, it would have concluded that the Plaintiff was entitled to aggravated or exemplary damages.

Read the judgement here

Damian McGeady