General Damages 2020-2021
Applying CA Criteria
In Griffin v Hoare [2020] IEHC 40, the High Court awarded €85,000 for pain and suffering to date and €70,000 for the same into the future. The plaintiff, suffered fractured clavicle and patella, abrasions and soft tissue contusion in an RTA. He was unable to finish his apprenticeship as an electrician and was unable to continue playing Gaelic football with his local club.
In Duffy v Magee [2020] IEHC 704, the claimants alleged that they had been seriously injured by breathing in a spray foam used in house insulation. The High Court awarded both plaintiffs €200,000 damages for pain and suffering to date and €200,000 damages for the future. Cross J. indicated that the Book of Quantum did not assist. The injury was amongst the most serious the specialist had seen.
In Delaney v Circle K Ireland Energy Group Ltd (Formerly Topaz) [2020] IEHC 453, O’Hanlon J. awarded €70,000 general damages The plaintiff, tripped on the defendant’s premises as a visitor suffering facial injuries bruising and ankle and knee injuries. There was residual stiffness and 12-18 months of further treatment with the possibility of enduring stiffness and a 5/10 % risk of post-traumatic arthritis. Dental injuries required to crowns and further treatment. She could not climb stairs and had to move accomodation as well as giving up minding her grandchildren.
Book of Quantum
In Griffin v Hoare [2021] IECA 329, the judges of the Court of Appeal disagreed as to whether an award of €85,000 for pain and suffering to date and €70,000 computer pain and suffering should be reduced. The claimant had suffered a traffic accident fracturing bones and causing soft tissue injuries. He could not longer play Gaelic football,since the accident and his career as an apprentice electrician was cut short. The majority of judges reduced the claims respectively to €60,000 and €35,000 with an addition of €25,000 for loss of opportunity.
The minority judge Woulfe J. Laid less emphasis on the book of quantum/personal injury guidelines.
“Firstly, it does not cater for the facts of this individual case, i.e. a very young man, required to undergo four or five surgical procedures, unable to pursue his career as an electrician, and unable to play Gaelic football for his club in County Kerry. While a guideline may be a useful guide, it is only just that and it remains a valid truism in my opinion that each personal injury case depends to some extent on the facts of the individual case, and on the effect of the particular injury or injuries on the particular plaintiff, having regard to that plaintiff’s particular circumstances and character. Secondly, it does not break down the suggested figures into damages to date and future damages, as the Supreme Court has stated should be done by trial Courts, and this makes it more difficult for a judge when it comes to having regard to the suggested figures. Thirdly, it does not cater for damages for loss of job opportunity as an element of the overall general damages. Fourthly, it does not deal with a combination of injuries, beyond stating that if there are other injuries it is not appropriate to add up values to determine the amount of compensation and where additional injuries arise ‘there is likely to be an adjustment within the value range’. In the present case, the plaintiff also sustained a fracture of the right clavicle, in addition to the much more serious knee injury, and this additional injury has to be factored into the potential award which I would be inclined to give, and I have done so.”
Noonan J. for the majority, placed greater emphasis on the book of quantum notwithstanding that it had certain limitations referring to the statutory requirement to have regard to it under s.22 of the Civil Liability and Courts Act 2004. He indicated that the objective of consistency “would in large measure be frustrated if courts dealing with injuries in defined categories appearing in the Book of Quantum, and now the Guidelines, were free to disregard the stipulated bands on the basis that the defined injury had affected the particular plaintiff to a greater extent than might be so in other cases”.
“The assessment of general damages in cases involving multiple injuries gives rise to special difficulty given that in these Guidelines each injury is valued separately. The principal difficulty stems from the fact that there will usually be a temporal overlap in the injuries sustained such that if each injury was to be valued separately the claimant would be overcompensated to the point that the award would be unjust to the defendant and disproportionate when compared with other awards commonly made for other greater or lesser injuries. Each injury will, of course, cause additional pain and suffering which must be reflected in the award, but the question is how to ensure that the award will be just in light of the overlap of the injuries.
In a case of multiple injuries, the appropriate approach for the trial judge is, where possible, to identify the injury and the bracket of damages within the Guidelines that best resembles the most significant of the claimant’s injuries. The trial judge should then value that injury and thereafter uplift the value to ensure that the claimant is fairly and justly compensated for all of the additional pain, discomfort and limitations arising from their lesser injury/injuries. It is of the utmost importance that the overall award of damages made in a case involving multiple injuries should be proportionate and just when considered in light of the severity of other injuries which attract an equivalent award under the Guidelines.”
Multiple Injuries
Quinn v Marsivlaniec [2021] IECA 247, involved multiple injuries in which the Court of Appeal reduced general damages from €210,000 to €175,000, the quantum of damages awarded by the High Court.
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The Court of Appeal satisfactorily set out the reasoning for and basis of the award
“Save for stating that he had read all of the reports including those in respect of which evidence had not been given, that he had regard to the Book of Quantum in relation to the bowel and wrist injuries, and that the plaintiff was a truthful witness who had not exaggerated her claims, the trial judge does not explain the precise engagement with the evidence which led him to the conclusions he arrived at … Even if the type of calculation exercise the trial judge engaged in could be considered appropriate (and in my view it was not), he does not explain what elements in the oral and documentary evidence led him to fix upon €60,000 as appropriate for the plaintiff’s wrist injury, €50,000 for her psychological injury or, even if compensating the plaintiff for the ‘horrendous’ nature of the accident separate to the award for psychological injury were a permissible approach (and I am satisfied it was not), why an award of €50,000 was found to be appropriate for this head of damage. I should say at this juncture that I accept the defendants’ contention that the award of €50,000 for the accident (no matter how ‘horrendous’) cannot be sustained, and that this award of damages, of itself, amounts to an error of law on the part of the trial judge.
Areas not Covered by Book of Quantum
Dunne v Creggy [2021] IEHC 341 dealt with an area in which the book of quantum did not provide bands; psychological injuries. The claimant had suffered injuries in a road traffic accident but lost confidence driving suffered loss of sleep and nightmares for a period. This was reflected in the general damages and compensation for future pain and suffering.
“The future is brighter for the Plaintiff. The Court recognises the psychological dent and undermining of the plaintiff whether one describes it as continuing driver anxiety …, reduced symptoms of PTSD … or no recognisable psychiatric as opposed to psychological injury … The plaintiff will also have some residual left hand symptoms for the rest of her life.”
The Personal Injuries Guidelines
In O’Mahoney v Tipperary County Council [2021] IEHC 643, the High Court judge indicated that it was permissible for a court to refer to the personal injury guidelines in cases commenced before 24 April 2021 when they came into effect. The Supreme Court in Morrissey v Health Service Executive [2020] IESC 6, relied on Judicial Guidelines for the Assessment of Damages in Northern Ireland and Judicial Guidelines for the Assessment of Damages in England and Wales.