General Damages 2008-2013
General Damages Awards
Yun v MIBI and Tao [2009] IEHC 318, the claimant suffered back injuries in a car crash and significant psychological damage
“1. Where the claimant has been awarded compensatory special damages to make provision for all necessary past and future care, medical treatment and loss of earnings, there will be a limit or ‘cap’ placed upon the level of general damages to be awarded. When applying or reviewing the ‘cap’ on general damages the court should take into account the factors and principles identified by the Supreme Court in Sinnott v Quinnsworth, and in M.N. v S.M. [[2005] IESC 17] including ‘contemporary standards and money values’.
2. Where the award is solely or largely an award of general damages for the consequences of catastrophic injuries there will be no ‘cap’ placed upon the general damages awarded. Each such case will depend upon its own facts so that: (a) an award for general damages could, if the evidence so warranted, make provision for factors such as future loss of employment opportunity or future expenses which cannot be precisely calculated or proved at the time of trial, (b) life expectancy may be a factor to be taken into account and, (c) a modest or no award for general damages may be made where general damages will have little or no compensatory consequence for the injured person.
3. There must be proportionality between: (a) court awards of general damages made, (i) by judges sitting alone and, (ii) in civil jury trials and, (b) by statutory bodies established by the State to assess general damages for particular categories of personal injuries.
Revision of Cap
The cap of £150,000 mentioned by the Supreme Court 1984 was translated as €405,000 in 2008. It was argued that Household consumption however had increased fivefold and that he ‘cap’ on general damages in 2008 should be calculated against the background of living standards and money values applicable within the community in 2008.
On the evidence, living standards in 2007 were more than five times better than they had been in 1984. Income levels had increased at a rate approximately 50 per cent greater than inflation during the same period. A downturn commenced in late 2007 or early 2008.
In another case in 1984 the Supreme Court indicated that award to take account of reduced employment prospects in respect of future loss of earnings. After the 2008 recession, the same principle was applied in some cases in one case with a reduction of 30%.
The Personal Injuries Assessment Board Act requires the court to have regard to the book of quantum in assessing damages in a personal injury case. In 2009 a High Court judge commented that “It is clear that the plaintiff has a serious and permanent condition.
The Book of Quantum classifies skull fractures and brain injuries under three headings. The first, attracting the least significant amount of damages involves a skull fracture with no loss of consciousness. The second, leading to more significant damage, involves a skull fracture with a brain injury but with no loss of consciousness. Finally, the most serious category involves a skull fracture, intracranial injury, and loss of consciousness. For a serious and permanent condition, the maximum amount set is €129,000. An argument was presented that this Book of Quantum was formulated in 2004. That does not mean that the values are out of date, especially at a time when property values are slipping rapidly and when the economy is in serious challenge. It could be that the deflation since that time makes the sums questionable in the other direction, but they seem to me to be a good guide. I think it is correct to award the plaintiff the sum of €120,000 under that heading, and it could be divided as pain and suffering to date in the sum of €80,000 and pain and suffering into the future in the sum of €40,000. As to his fractures, and as his scarring, I propose to add on the sum of €20,000, divided as €10,000 to date and €10,000 into the future. For his loss of his sense and taste and smell I will add the same figure.”
In Fagan v Griffin [2012] IEHC 377, however, Cross J. rejected the view that Sinnott v Quinnsworth Ltd should be interpreted as requiring that general damages in cases falling short of the most extreme should suffer pro rata diminution. He observed:
“It is of course important to note that what was decided in Sinnott v. Quinnsworth was that there was a cap on general damages not that general damages in cases that fail to reach the standards of being the most extreme should suffer pro rata diminution. Of course, as there is a “cap” in general damages, many cases may be entitled to a figure up to the level of that “cap”’.
Recession
In the context of the collapse of the 2007-2012 recession the court indicated that expert evidence had
“… explained that, whilst the effect of a prolonged recession should have an impact upon the calculation of the ‘cap’ in catastrophic cases, the adjustment to be made should not be large by comparison with an adjustment to take into account social and economic change over a 25 year period”.
“The ‘cap’ on general damages in 2008 should be calculated against the background of living standards and money values applicable within the community in 2008. On the evidence living standards in 2007 were more than five times better than they had been in 1984. Income levels had increased at a rate approximately 50 per cent greater than inflation during the same period. A downturn commenced in late 2007 or early 2008.
No expert evidence has been adduced which would accommodate a scientifically accurate calculation of an adjustment of the ‘cap’ which, having allowed for inflation, would reflect the significant increases in earning levels and the improvements in living standards which have occurred between 1984 and 2008. Accordingly, I am seeking to achieve that objective on a common sense basis by making a 25% upward adjustment of the ‘cap’.
That upward adjustment increases the equivalent value in 2008 of the 1984 ‘cap’ of IR£150,000 (€190,000) from €400,000 to €500,000.
However, a downward adjustment must then be made to reflect the present and forthcoming reduction in wealth and living standards which commenced in early 2008 and is expected to continue for a further period in excess of five years.
The downward adjustment should not be large for the reasons outlined by Mr. McDowell and also because, on the evidence, it is likely that living standards, after a sharp decline in 2009, will gradually improve before returning to their 2008 levels by 2014 or 2015. I would measure the downwards adjustment at 10%.
That further adjustment reduces the present equivalent value of the 1984 ‘cap’ of IR£150,000 (€190,000) to €450,000.”
Recession Discount
In another case in 1984 the Supreme Court Reddy v Bates indicated that award to take account of reduced employment prospects in respect of future loss of earnings. After the 2008 recession the same principle was applied in some cases in one case with a reduction of 30%.
In Yun v MIBI and Tao [2009] IEHC 318, Quirke J. said
“That capital sum must be discounted to take account of the factors identified by the Supreme Court in Reddy v Bates (and subsequent authorities). The discount must be substantial because of the present and predicted domestic and global economic recession and because of the plaintiff’s personal circumstances and aspirations prior to her injury. The discount must also take into account the plaintiff’s professed hope to marry and raise a family, which, if realised, would probably have slightly reduced the extent and duration of her earning capacity.”
Book of Quantum
The Personal Injuries Assessment Board Act 2003 requires the court to have regard to the book of quantum in assessing damages in a personal injury case.
In O’Brien v Derwin [2009] IEHC 29
“If, in addition to the most significant injury as outlined above, there are other injuries, it is not appropriate to add up values for all the different injuries to determine the amount of compensation. Where additional injuries arise, there is likely to be minor adjustment within the value range.”
“It is clear that the plaintiff has a serious and permanent condition. The Book of Quantum classifies skull fractures and brain injuries under three headings. The first, attracting the least significant amount of damages involves a skull fracture with no loss of consciousness. The second, leading to more significant damage, involves a skull fracture with a brain injury but with no loss of consciousness. Finally, the most serious category involves a skull fracture with intracranial injury and loss of consciousness. For a serious and permanent condition, the maximum amount set is €129,000. An argument was presented that this Book of Quantum was formulated in 2004. That does not mean that the values are out of date, especially at a time when property values are slipping rapidly and when the economy is in serious challenge. It could be that the deflation since that time makes the sums questionable in the other direction, but they seem to me to be a good guide. I think it is correct to award the plaintiff the sum of €120,000 under that heading, and it could be divided as pain and suffering to date in the sum of €80,000 and pain and suffering into the future in the sum of €40,000. As to his fractures, and as his scarring, I propose to add on the sum of €20,000, divided as €10,000 to date and €10,000 into the future. For his loss of his sense and taste and smell I will add the same figure.”
Appeal
The Courts of Justice Act 1924 allows the appeal court in place of ordering a new trial to set aside the verdict of a jury and substitute such judgement as it considers fit. The Courts have been inclined in recent times to substitute their own assessment for damages for that of the trial judge the save the parties the expense and delay of a retrial. This is not permissible where there is a lack of clarity about the reasons basis for assessing the damage in the material in front of them.