What is the correct method of valuing psychiatric injury under the new Guidelines?

A blog by Damian McGeady

The Court of Appeal has given further guidance on the methods of valuing Psychiatric Injury under the new Guidelines. In the Zagananczyk case, the Court upheld the Appeal of the Defendant’s, reducing the High Court award of €90,000 damages for general damages to one of €60,000.

In the High Court, the Trial Judge accepted that the Plaintiff had suffered from PTSD in the lower end of the serious category, finding a figure of €45,000 to be appropriate. The Court accepted that the Plaintiff also suffered separately, an identified and diagnosed Psychological Injury in the form of an alcohol abuse disorder and depression, which the Court categorised as being at the lower end of moderate and for which the Court allowed €20,000 damages.

Thus the High Court’s award for Psychiatric Injury totalled €65,000. The High Court allowed an additional figure of €25,000 for burns and scarring.

The Appeal

The Defendants argued that the Trial Judge erred in classifying the PTSD as serious and that the Judge was wrong to separately award two different sums for Psychiatric Injury. In addition, the Defendants argued that the Judge’s award for scarring was excessive.

Applying the Guidelines

The Court of Appeal identified the decision of Coffey J. in Lipinski (a minor) v Whelan as helpful analysis, not just in valuing Psychiatric Injury, but in applying an uplift for lesser injuries. The Court also referred to and commended the decision of Murphy J. in McHugh v Ferol. In that action the Court, having established the value of the dominant injury went on to value each additional and lesser injury, totting the values up before applying a discount to the lesser injuries. In McHugh the discount was 50%.

Reality Check

In his Judgement in the Court of Appeal in Zagananczyk, Noonan J. said;

Whatever mathematical approach is adopted, it is important not to lose sight of the global impact of all the injuries on the particular plaintiff concerned. The plaintiff is entitled to be compensated for all the suffering they have endured, be it from one or ten discreet injuries suffered at the same time. As the Guidelines suggest, some assistance may be derived from a consideration of how the overall award compares with other individual categories in the Guidelines. If an obvious mismatch emerges, this may suggest that the requisite proportionality has not been achieved. That is, in my view a useful exercise in the present case as appears further below and can provide a helpful “reality check”.

The Assessment on Appeal

The Court of Appeal held that the High Court had made a number of errors in it’s approach to the assessment of damages for Psychiatric Injury. The Court noted that the Guidelines define PTSD as including mood disorder and that depression was a mood disorder. Applying the analysis of Coffey J in Lipinski, the Court of Appeal found that the Trial Judge had erred in reaching a classification that the Plaintiff’s PTSD was “serious”. It found that a cumulative award for Psychiatric Injury in the case of €65,000 clearly offended the doctrine of proportionality, reducing the award to €35,000, stating:

Although in my view the PTSD in Lipinski was of a more serious order than in the present case, nonetheless when one factors in the depression and alcohol abuse, even assuming they were to be regarded as separate, I think, as in Lipinski, an award of damages at the top end of the moderate category is justified at €35,000.

Whilst The Court found it unsatisfactory that the High Court Judge had not indicated how the uplift was applied to in the case of burns and scarring, the Court of Appeal did not consider that the Defendant had established an error on the part of The Judge in arriving at a figure of €25,000 for scarring.

The Court of Appeal reduced the award for general damages from €90,000 to €60,000.

Appeal finds that High Court ought to have heard Summons brought by Defendant rather than adjourn it generally.

by Damian McGeady

In Sherry v Murphy & Ors, the Court of Appeal heard an appeal from a judgement and Order of the High Court, the substance and effect of which was to refuse to fix a date for the hearing of a motion brought on behalf of a Defendant who challenged the adequacy of a Personal Injury Summons. The defendant sought several orders based on the alleged failure of the personal injuries summons to comply with High Court Procedure and the requirements of Part 2 of the Civil Liability and Courts Act, 2004.

When the motion was called counsel for the defendant asked for a date to be fixed for the hearing of the motion. This was opposed by counsel for the plaintiff who argued that the progress of the case was impeded by the fact that the first defendant had not delivered his defence and was seeking to have his defence assessed by way of a motion. The judge ruled that he should first deliver his defence and then bring his motion, which could be dealt with alongside the hearing of the action. The judge declined an application by counsel for the plaintiff to strike out the motion but rather adjourned it generally and reserved the costs.

The Substance of the Appeal was that the High Court judge exercised his discretion to adjourn the motion generally – or not to assign a hearing date – in a manner which irredeemably prejudiced the defendant. It is said that the effect of the order was to irredeemably defeat the objectives of Part 2 of the Civil Liability and Courts Act, 2004 and that the order made failed to have regard to where the balance of justice lay.

The Court of Appeal held that the suggestion that that the effect of the order was to irredeemably defeat the objectives of the Act probably put it too high but, did find that the defendant had an argument to make that the requirements of the Act had not been met in the way the claim against him was pleaded.

In considering correct High Court procedure and allowing the Appeal and remitting the motion to the High Court for hearing the Court acknowledged the difficulty that Judges face in matters such as these.

“I acknowledge that in the management of busy lists and scarce resources a significant margin of appreciation must be afforded to the list judge but in my view, he was led into error by the summary of the issues. In my view, the refusal of the High Court judge to fix a date for the hearing of the motion created a substantial risk of significant procedural unfairness coupled with a likelihood that no effective remedial action could be put in place later to address the very significant additional costs to which the first defendant was exposed in the event that his application proved to be successful.”