A valued insurance client recently asked for guidance on measuring damages for personal injury in Northern Ireland, where multiple injuries are sustained, and how it compares to the approach South of the border.
Green Book Claims
The Green Book, or to give its official title, Guidelines for the Assessment of General Damages in Northern Ireland, was recently updated with the publication of the sixth edition. It is the NI equivalent to The Personal Injuries Guidelines. In applying the Green Book, the leading case on aggregating damages for multiple injuries is Wilson v Gilroy & Anor [2008] NICA 23.
Intuition
Much will depend on a trial judge’s determination and intuition.
In Wilson, the Court of Appeal concluded;
In cases involving a multiplicity of injuries each of which calls for individual evaluation, it is well established that one should check the correctness of the aggregate sum (which is produced when one adds together the amounts for all of them) by considering the figure on a global or general basis. Essentially, this involves an intuitive assessment of the suitability of the sum produced to compensate the plaintiff’s overall condition.
Application
In McAuley v Russell and others, Mr Justice Humphries applied a small discount on an aggregate award. In that case, he totted up the value of each injury as per the Green Book. The Plaintiff had suffered injuries including Left leg injury, Left arm injury, Right knee, Facial & ENT injuries, Scarring, Rib/chest injury, Concussion, Tooth injury, and an Adjustment Disorder. That amounted to an aggregate value of £250,000. Applying the test of the Court of Appeal in Gilroy, the Judge reduced the award to £225,000.
Theoretically, if the Court was satisfied, it could consider not applying a discount. It is not mandated; instead, it is for the Judge to decide. In practice, there will inevitably be a discount in most cases. The discount level may not be significant in some cases, such as the example in McAuley. When acting for Defendant Insurers, we would argue that there should be a much more substantial reduction than that given by the Court in McAuley. The truth is that another judge may well have given a lower award. Given, however, that it comes down to the intuition of the Judge, it would have been a difficult one to appeal.
Claims under the Personal Injuries Guidelines
There is much more detailed guidance south of the border, where the proposed revised Guidelines have noted the application of the Jurisprudence of the Superior Courts. See our previous insights where we highlighted that ‘The Uplift’ can exceed the value of the award for the dominant Injury in applying the new Guidelines.
Cases such as McHugh v Ferol and Lipinski (a minor) v Whelan, where the High Court noted that the existing guidelines did not provide specific direction regarding the uplift that should be applied in cases of multiple injuries. In McHugh v Ferol, the court established that the combined uplift could, in certain circumstances, exceed the value of the award for the dominant injury. In the Lipinski case, the High Court gave clear guidance on calculating the compensation for psychiatric injury under the new guidelines.
In Zaganczyk Petit and others, the Court of Appeal referred to, with approval, the decision in McHugh v Ferol. In this instance, the Court of Appeal reduced the plaintiff’s award and gave further guidance on the methods of valuing psychiatric injury under the guidelines and procedures for calculating the uplift in a case of multiple injuries.
If the revised guidelines are passed (as expected), these will be put on a formal footing.
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