General Damages 2014-2017
Pain & Suffering
In Payne v Nugent [2015] IECA 268 the Court of Appeal reduced an award of €45,000 for pain and suffering today €20,000 for future pain and suffering to €30,000 and 4000 respectively.
Irvine J.
“I am mindful of the fact that while it cannot be stated that there is a cap on general damages for pain and suffering, from the awards made in recent times there is at least a perception that the very upper range for compensation of this type rests in or around the €400, 000 mark. The most catastrophically injured members of society who suffer great pain and distress and who may never work or enjoy the benefits of a loving relationship and who may remain dependant on the care of others for fifty or sixty years or indeed for the whole of their lifetime are regularly awarded general damages for pain and suffering in the region of €400, 000. 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 evaluated.
The Cap
In Shannon v O’Sullivan [2016] IECA 93,
“It can be stated with relative confidence that cases involving extreme or catastrophic injury coming before the courts in recent years have resulted in awards of in or around €450,000 in terms of general damages. That is not to say that €450,000 is a maximum or that there have not been cases where that sum has been occasionally exceeded. However, the figure of €450,000 is generally accepted by senior practitioners and judges alike as the appropriate level of compensation for pain and suffering in cases of that nature: indeed the High Court, in the exercise of its wardship jurisdiction regularly approves settlement for injures of this type at that level. I do not accept that in practice the sums so awarded have been reduced by reason of the fact that plaintiffs who fall into this category inevitably recover very significant sums in respect of special damage.
It cannot, in my view, be correct that a plaintiff can have their general damages reduced on the basis that they are to be awarded a very large sum in respect of their claim for special damage to cover matters such as loss of earnings, future care, aids and appliances, assistive technology etc. That cannot be correct in principle; an injured person is entitled to be compensated in full for all losses flowing from the injuries he sustains. Special damages represent the calculation of actual losses, past and future, which leaves the matter of general damages to be assessed entirely separately.
It has to be accepted that there have been some dicta which support the principle which Mr Doyle maintains applies, a principle which I would reject as unjust and perhaps even irrational. Further the leading authority often cited in support of this proposition would not appear to justify that approach.”
Woods v Tyrell [2016] IEHC 355, Cross J.
“With respect to clear logic of that statement, it runs counter to the reasoning in Sinnott. I have … given a possible rational basis for the approach of the Supreme Court both in Sinnott and Reddy v Bates. But, be that as it may, the law in this country is settled now since Sinnott for the reasons as outlined therein, that the ‘cap’ applies only in those catastrophic cases (in practice the vast majority of them) which have the extensive special damages as pertained in Sinnott. Apart from the clear logic of the learned authors and displayed by the judgment of the Court of Appeal, I believe it is clear that the law in this country has developed on this basis, that the ‘cap’ is not the general damages to be awarded, for pain and suffering, to a catastrophically injured plaintiff unless in the circumstances as set out in Sinnott apply. This has been confirmed by subsequent jurisprudence.”
“I believe it follows from the above analysis and indeed, as I stated in Fagan v Griffin [2012] IEHC 377 that Sinnott v Quinnsworth should not be interpreted and cannot be interpreted as requiring that general damages in cases falling short of the most extreme should suffer any pro rata diminution in their damages. The ‘cap’ on general damages be it £150,000 or €500,000 is not a yardstick against which other cases must be measured. It can, of course, be taken into account in a general way while assessing appropriate general damages in a ‘non-cap’ case but no analysis of the authorities can regard the cap on general damages as being the ‘price’ in general damages for catastrophic injuries. To regard €500,000 or whatever the figure may be as being fair and reasonable compensation for catastrophic injuries is an insult not just to the injured parties but to basic intelligence …
From the above analysis it is clear in relation to the ‘cap’ in general damages that the following principles may be established:-
(i) it applies only in cases where there is significant special damages;
(ii) in cases where they are not significant special damages the court is subject to rules set out in M.N. v S.N. may award general damages significantly higher than the ‘cap’;
(iii) the ‘cap’ since the decision of Quirke J. in Yun been fixed at €500,000 and the practice of €450,000 to which it was reduced in consequence of the economic collapse should no longer be applicable;
(iv) the figure of the ‘cap’ is not and never could be held to be the ‘price’ of catastrophic personal injuries; and
(v) a number of cases will arise in which there are significant special damages and the injuries though very serious are not as serious as the injuries sustained by Mr. Sinnott and those cases would be entitled to damages up to the figure represented by the ‘cap’ is not a yardstick but a limit.
Accordingly, the ‘cap’ is not and never could be a measure by which other cases should have their damages reduced.
However, the provision of the ‘cap’ is one of the many features that may be taken into account in a general way in assessing the appropriate general damages in a ‘non-cap’ case.”
Kampff v Minister for Public Expenditure and Reform [2018] IEHC 371
“As €450,000 is … the generally accepted ‘cap’ on general damages for the worst possible injury, it follows from the … judgment of the Court of Appeal [in Shannon v O’Sullivan [2016] IECA 93] that the level of the award in a particular personal injures case must be proportionate to that ‘cap’ on damages. It bears repeating that there is no limit on the amount of special damages which are awarded for such injuries and this is why overall awards will often be in the millions of euro, even though general damages are limited to €450,000.”
In O’Hara v Minister for Finance, Public Expenditure and Reform [2018] IEHC 493,
“… driven to this conclusion by what appears to me on the face of it a mistaken premise on foot of which the propositions advanced are founded, namely that the maximum award for general damages which may be made for pain and suffering in any case is presently capped or limited to a sum of in or about €450,000 and that this is the bench mark figure against which the concept or principle of proportionality of damages is to be applied and measured in approaching or carrying out the assessment of damages for pain and suffering.”
The cap on damages
“… confined to particular circumstances such as those which arose in those cases. It does not apply and was not intended to apply to circumstances where even though there may be very serious, even catastrophic injuries, there are no substantial pecuniary loss claims in respect of matters such as future medical, care and accommodation costs.”
Serious Injury Guidance
In Murphy v County Galway Motor Club Ltd [2016] IECA 116, the Court of Appeal gave guidlines on assessing general damages for a serious injury. The plaintiff aged 19 lost a leg as a result of an accident. The High Court awarded €100,000 general damages for pain and suffering to date and a €100,000 for future pain and suffering. The Court of Appeal raised the latter award to €175,000.
Irvine J. :
“One of the factors which to my mind should sound heavily in damages is the age at which a plaintiff sustains a devastating injury. This plaintiff was only nineteen and was entering what ought to have been the most dynamic and thrilling period of his life in terms of work, leisure and social activity. The evidence demonstrated that in respect of each of these areas, the plaintiff’s life would likely be permanently and irreparably changed by reason of his injuries. He was not in a position to continue with his chosen trade i.e. that of a plumber. He is unable to participate in most sporting activities. He suffers ongoing discomfort and disability and will do so for the rest of his life. He will have decades of embarrassment and upset because of the disfigurement of his body. Further, he runs the risk of future complications in terms of his mobility due to the natural ageing process. In addition, he is at risk of developing significant arthritis in a number of joints as a result of his amputation.
As to the type of activities which a young man of nineteen years of age might expect to enjoy, the plaintiff cannot cycle, play soccer or engage in any activity which requires mobility. He is grossly affected in his social and leisure activities, although he drives a modified car. He will not be in a position to enjoy many or the activities, holidays and leisure pursuits that able bodied people take for granted because he is unable to deal with uneven ground or rough terrain. I cannot but think of those fathers I see kicking a ball with their young children or teaching them to swim or perhaps strolling with toddlers on their shoulders. The plaintiff will likely be denied all of this and so much more.
Of even greater significance is the fact that he plaintiff will start every day of his life with the task of attaching a prosthetic limb and will end each day with the reverse process. Regardless of the plaintiff’s optimism as to the future, this will be an enormous burden to bear for the rest 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.”
General Damages Guidance
In Nolan v Wirenski [2016] IECA 56, the High Court made awards €90,000 for pain and suffering to date and €30,000 for future pain and suffering, the Court of Appeal reduced the respective amounts to €50,000 and €15,000.
Irvine J.
“Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the State; and (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries …
[I]t is reasonable to seek to measure general damages by reference to a notional scale terminating at approximately the current maximum award endorsed by the Supreme Court which is in or about €450,000. That is the figure generally accepted by senior practitioners and judges alike as the appropriate level for compensation for pain and suffering in cases of extreme or catastrophic injury. In the exercise if its wardship jurisdiction the High Court regularly approves settlements for injuries of this type at this level of compensation.
When it comes to assessing damages I believe it is a useful to seek to establish where the plaintiff’s cluster of injuries and sequelae stand on the scale of minor to catastrophic injury and to test the reasonableness of the proposed award, or in the case of an appeal an actual award, by reference to the amount currently awarded in respect of the most severe category of injury. Such an approach should not be considered mandatory and neither does it call for some mathematical calculation; what is called for is judgment, exercised reasonably in light of the case as a whole. Not every case will be suitable for such an analysis and that is where the trial court will want to explain the reasons why that approach may not be suitable in the particular circumstances. However, the fact that this yardstick is not absolute and may not be of universal application in all cases does not diminish its value generally.”
In Shannon v O’Sullivan [2016] IECA 93, the Court of Appleal reduced the damages awarded by the High Court
Irvine J.
“One of the factors which to my mind should sound heavily in damages is the age at which a plaintiff sustains a devastating injury. This plaintiff was only nineteen and was entering what ought to have been the most dynamic and thrilling period of his life in terms of work, leisure and social activity. The evidence demonstrated that in respect of each of these areas, the plaintiff’s life would likely be permanently and irreparably changed by reason of his injuries. He was not in a position to continue with his chosen trade i.e. that of a plumber. He is unable to participate in most sporting activities. He suffers ongoing discomfort and disability and will do so for the rest of his life. He will have decades of embarrassment and upset because of the disfigurement of his body. Further, he runs the risk of future complications in terms of his mobility due to the natural ageing process. In addition, he is at risk of developing significant arthritis in a number of joints as a result of his amputation.
As to the type of activities which a young man of nineteen years of age might expect to enjoy, the plaintiff cannot cycle, play soccer or engage in any activity which requires mobility. He is grossly affected in his social and leisure activities, although he drives a modified car. He will not be in a position to enjoy many or the activities, holidays and leisure pursuits that able bodied people take for granted because he is unable to deal with uneven ground or rough terrain. I cannot but think of those fathers I see kicking a ball with their young children or teaching them to swim or perhaps strolling with toddlers on their shoulders. The plaintiff will likely be denied all of this and so much more.
Of even greater significance is the fact that he plaintiff will start every day of his life with the task of attaching a prosthetic limb and will end each day with the reverse process. Regardless of the plaintiff’s optimism as to the future, this will be an enormous burden to bear for the rest 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.”
New Book of Quantum
O’Sullivan v Depuy International Ltd [2016] IEHC 684, Cross J
“I do have a certain difficulty with the new Book of Quantum in that on its face, the information going into its make up comes not just from court awards or PIAB determinations but also to a significant extent from insurance company files. The difficulty is that those files will, as a matter of virtual certainty, include cases which are compromised due to possible liability factors. If an insurance company has put a value of say €50,000 on a settlement and the files indicates that that case was settled on a 50/50 basis, the insurance company may value the full claim at €100,000. The plaintiff, however, might value the claim at a far greater sum but are oncerned that they had a very small chance of success. The reverse is also, of course, possible.
In Boland v Reardens of Washington Street Ltd [2016] IEHC 586, Twomey J.
“In relation to general damages, this Court is obliged by s. 22 of the Civil Liability and Courts Act, 2004, to have regard to the Book of Quantum. The previous Book of Quantum was issued in 2004 and so was somewhat out of date. Accordingly the damages awarded by the High Court in recent years tended to be greater than those set out in the Book of Quantum. However now that the Book of Quantum has been updated, it is this Court’s view that it is important that this Court does have regard to the Book of Quantum 2016, as it is obliged to do under the 2004 Act. This is because, if this Court does not do so it would mean there would be less certainty regarding likely outcomes in personal injury cases before this Court. This uncertainty lessens the likelihood of personal injury cases being resolved without the need for court hearings (whether before the Personal Injuries Address Board or by settlements out of court). This uncertainty leads to unnecessary litigation, which leads to unnecessary and significant costs for defendants and critically also significant costs and risks for plaintiffs seeking damages for their injuries.”
In Lennox v O’Callaghen [2018] IEHC 746
“… a certain difficulty with the new Book of Quantum in that, on its face, the information going into its make up comes not just from court awards or PIAB determinations but also to a significant extent from insurance company files. The difficulty is that those files will, as a matter of virtual certainty, include cases which are compromised due to possible liability factors. If an insurance company has put a value of say €50,000 on a settlement and the files indicates that that case was settled on a 50/50 basis, the insurance company may value the full claim at €100,000. The plaintiff, however, might value the claim at a far greater sum but are concerned that they had a very small chance of success. The reverse is also, of course, possible.
It is not clear what the portion of the Book of Quantum’s figures are in relation to insurance company files but on the face of it, a significant cause to doubt the accuracy of the recent book does present itself.”
In McCarthy v Kavanagh t/a Tekken Security [2018] IEHC 101, Cross J.
“If in addition to the most significant injury as outlined above there are other injuries, it is not appropriate to simply add up values for all the different injuries to determine the amount of compensation. Where additional injuries arise there is likely to be an adjustment within the value range.”
In Healy v O’Brien [2018] IEHC 602, Barton J.
“If one looks at the original Book of Quantum, there is an astonishing statement, repeated in slightly different wording in the updated book, which I suspect but don’t know, was intended for the purposes of assisting assessors in the Personal Injuries Board, but also others consulting the book, in how to approach the assessment of damages in a case involving multiple injuries. Putting the most favourable gloss on what is said, the thrust of the statement is that the valuation range for the most serious injury should be adjusted to take account of the other injuries.
The statement does not reflect the law on how to approach the assessment of damages; rather the correct approach is to treat the plaintiff holistically. In my judgment it is almost self evident that tweaking one range of damages applicable to a given injury as a means of compensating for a different injury with which the particular range of damages is not at all concerned cannot be correct and is an inappropriate way to measure compensation if the objective of compensatory damages is to be properly achieved.
Where one suffers a serious injury to an arm and by way of example other injuries to the pelvis and a leg or an ankle, each of which results in painful symptomology, the unfortunate victim is generally aware that different parts of the body have been injured and experiences separate and distinct symptoms, the intensity and duration of which may be quite different. In carrying out an assessment account has to be taken of all of the injuries sustained and the contribution each has had on the victim as a whole person; to do otherwise runs the risk of under compensating the Plaintiff.”
Kampff v Minister for Public Expenditure and Reform [2018] IEHC 371.
“… some of the awards which are contained in the Book of Quantum have been subject to recalibration downwards since it was re-issued in 2016. Even in the context of personal injuries to civilians, the Book of Quantum is of significantly less importance to the High Court’s decision on the level of damages, than the principles laid down by the Court of Appeal and the Supreme Court on the proportionality of awards to the ‘cap’ and the relativity of the award to average earnings …, since the Book of Quantum is not binding on the courts, while the principles laid down by the Court of Appeal and the Supreme Court are binding.”