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.