After four recent Court of Appeal decisions on the assessment of damages in personal injuries cases where the court on each occasion lowered awards of damages, one might be tempted to think that the court had indeed recalibrated damages in personal injury cases in Ireland. In Shannon and Shannon v O’Sullivan, the court was asked to accept that it had. In the judgment delivered by Ms Justice Irvine the court did not accept that it had that saying that the decisions had clarified “the principles to be applied and the proper approach to be taken by a trial judge when making an award for damages for personal injuries so as to ensure that the award made is just, equitable and proportionate”.
If proof was at all needed that there had not been a wholesale recalibration, the case of Murphy -v- County Galway Motor Club Limited & Ors, illustrates that the court is not afraid to raise an award of damages where it deems it appropriate.
Damages Lowered
The Court of Appeal in Nolan v Wirenski reduced a general damages award of €120,000 made by Mr Justice Barr for the plaintiff’s shoulder injury. The award by the trial judge was for €90,000 damages for pain and suffering to the date of trial and €30,000 for pain and suffering in future. The Court of Appeal consisting of Judges Ryan, Irvine and Peart reduced the award for general damages to €65,000 consisting of €50,000 for pain and suffering to date of trial and €15,000 for pain and suffering in the future.
Ms Justice 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. Justice 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. 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.
In 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 said that “Modest injuries should attract moderate damages” and reduced the award to the Plaintiff to €35000 general damages.
Murphy -v- County Galway Motor Club Limited & Ors
Issues
In this case which concerned an award of the High Court by McGovern J., the court was asked to review the decision on liability, assessment of general damages and the calculation of special damages.
Liability
The plaintiff was a spectator at a motor rally who suffered severe injuries when a car left the road and struck him. McGovern J., held him to have contributed to the accident and found him to be two thirds responsible. The Court of Appeal upheld the appeal of the plaintiff on the liability finding and held that in fact the onus on the organisers was greater and that the plaintiff’s degree of culpability was reduced from two thirds to one quarter.
In considering the issue of contributory negligence the court considered the leading cases of O’Sullivan v. Dwyer [1971] IR 275 and Hay v. O’Grady.
Special Damages
The court considered the assessment of special damages to include the approach in calculating loss of earnings to trial and future loss of earnings (in doing so considering the application in Reddy v Bates). The court held that the trial judge had erred and it raised the award.
Damages for personal Injury
McGovern J, in the High Court had held that damages for the significant injury sustained by the plaintiff be measured at €200,000 being half for pain and suffering to trial and the other half for future pain and suffering. The plaintiff sustained a severe compound fracture to his left lower tibia with disruption of the tibiofibular joint, a dislocation of the left knee with rupture of all of the ligaments around the joint and severe skin loss of the lower left leg. He also sustained a number of small lacerations to his left upper forearm and left hand. Because of the severity of the injury to his leg the plaintiff required an amputation initially at knee level and then later above the knee. He was wheelchair bound for a significant period prior to being fitted with a prosthesis.
The Court of Appeal raised the award for injury to €275,000, agreeing that the award for pain and suffering to trial would amount to an award of €100,000, but taking issue with the award for future pain and suffering.
The court said “To achieve proportionality the judge ought to have regard to the entire spectrum of personal injury claims which includes everything from the most modest type of injury, such as soft tissue injuries, to those which can only be described as extreme or catastrophic and which tend to attract damages of in or about €450,000. It is helpful for a trial judge to endeavour to locate where, within that spectrum, the injuries of any particular plaintiff would appear to lie: see, e.g., Nolan .v. Wirenski, judgment of Irvine J. 25th February 2015. After all, damages are only fair and just if they are proportionate, not only to the injury sustained by an individual plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. There must be a rational relationship between awards in personal injury cases. That said each case must turn on its own facts.
Applying these principles to the present case, it is undoubtedly the case that the plaintiff’s injury must be viewed as a very serious and significant one when considered in the context of the overall spectrum of personal injuries claims. Any amputation, and particularly the amputation of a leg at a young age, will have permanent and irremediable consequences for the victim. It is an injury destined to adversely influence every area of his life”.
“When I think of the entries that might be made by this plaintiff in a diary to be kept by him over the next 50 years or so concerning his pain, distress, disadvantage, embarrassment and upset deriving from his injuries, I am quite satisfied that the sum awarded by the trial judge in respect of future pain and suffering was wholly inadequate by way of compensation and that it must be set aside. It does not fall within what I consider to be the acceptable parameters for future pain and suffering for this particularly significant injury. I would propose a sum of €175,000 be substituted to replace the sum awarded in respect of this category of loss“.
The Court set aside the order of the High Court of damages €199,166 and in its place made an award of €564,682
Comment
The writer agrees that the original decision on the assessment of damages for injury was too low for such an appalling injury, just as I agree that the original decisions in the cases mentioned above were clearly too high. These decisions illustrate that, at last plaintiffs and defendants have a quick and accessible means of appealing judgements such as these. It should not be lost on us that on each of the five cases the court upheld the appeals; that they found for the appellants. Parties do not appeal decisions lightly, given the significant costs implications, but when a decision is clearly too generous or quite the opposite the Court of Appeal is an effective remedy and a welcome addition to the Irish court system.
