General Damages 2017-2019
The New Book of Quantum
Dylan v Stagg [2017] IEHC 21, set out possible reasons not to apply the Book of Quantum:
“The court was invited by Mr Walsh, SC, on behalf of the defendant, to have regard to the various heads of compensation as set out in page 37 of the Book of Quantum. While providing some assistance, the values given therein do not take account of the groin flap operation, or the cosmetic consequences of that operation. Nor do those values reflect the fact that playing sports was the plaintiff’s passion; which said activity has been dramatically curtailed as a result if the accident. Nor do they include any amount for loss of opportunity in the job market. In addition, as was conceded by counsel, the valuations given therein, do not take account of any psychiatric sequelae as a result of the injuries.”
Walsh v Tesco Ireland Ltd [2017] IECA 64
“in many of the more complex personal injuries cases, the book of quantum is only of limited value in a complex case of this kind. This is particularly so where a plaintiff sustains injuries which fall into a number of categories. In the present case the respondent sustained an acute injury to her back with life-long consequential effects for not only the functioning of her back but of her bladder. To this must be added the grave psychological consequences which flow indirectly from her physical injuries. Thus, this is not a case which falls neatly within the confines of any particular injury within the book of quantum. The totality of the injuries must be considered and the overall figure awarded must be just and proportionate in that regard.”
Moore v Advanced Tyre Company Ltd t/a ‘Advanced Pitstop’ [2017] IECA 10
“just about within the parameters of damages that might reasonably be awarded for injuries of this nature such that it is to be protected from any interference by an appellate court. In this regard it is to be noted that the sum so awarded also falls within the parameters advised in the then current Book of Quantum in relation to fractured elbows even if it be the case that the values therein specified were somewhat out of date at the time of the making of the award under consideration. However, even allowing for that, the award made by the trial judge was not in my view sufficiently disproportionate such that it ought to be set aside and replaced by a greater [a]ward.”
In Ryan v Gill [2019] IEHC 425, Meenan J.indicated that the book of quantum was indicative in the context of a claim for future pain and suffering with continuing symptoms with significant consequences. He sait that the book was
“… of very limited assistance in assessing damages for complaints, such as the plaintiff herein, who suffers from ongoing and regular headaches which, to a significant extent, are debilitating. The effects of such a problem will naturally vary from person to person.”
Proportionate Award
Gore (A Minor) v Walsh [2017] IECA 278 THe Court of Appeal reduced an award of pain and suffering from €50,000 to €25000 where a child had suffered a scar on his back.
“I am satisfied that the amount awarded by the trial judge in respect of general damages in this case cannot be considered to be just, fair or proportionate to the injury sustained. Neither is it an award which is proportionate when viewed in the context of awards commonly made in respect of other categories of personal injury of a more significant nature. Of particular importance as far as I am concerned, is the fact that I do not consider this award objectively reasonable in light of the common good and social conditions in the State.
The claimant was not left, with a significant scar, as was determined by the trial judge. Neither can his scar be described, as it was by counsel, as horrific. This scarring injury, unaccompanied as it is by any other physical or psychological injury, is possibly if not probably the smallest scar that I have ever seen form the subject matter of High Court proceedings in more than 35 years of legal practice. The scar is somewhere between 4 and 6 cm (1.5-2.3 inches). It is not keloid or red. It is white. It does not cause any irritation and is located on a part of the body which cannot be seen when he is clothed. Even then, it could not conceivably cause him any embarrassment. If there was any such possibility I’m certain it would have been identified by his consultant plastic surgeon. It is confirmed that the scar will not impact on his activities in any way.
If modest lacerations such as that sustained by [the claimant] are to attract awards of €50,000 it is difficult to see how the Court would be in a position to make a proportionate and fair award in respect of, for example, substantial third degree burns to a large area of the body including the face which would not require an award of damages far beyond the level of damages commonly reserved for those who sustain the most extreme type of catastrophic injury such as severe brain damage or quadriplegia.”
Approach Required
BD v Minister for Health and Children Barton J.
“For reasons which are set out in O’Hara v. Minister for Public Expenditure and Reform [2018] IEHC 493, it seems to me on authority that the entire premise on which Kampff v. Minister for Public Expenditure appears to be founded, leading as it has to the conclusion that the levels of general damages in personal injuries actions must be reduced or assessed at a lower level, is mistaken. At the heart of this proposition is the factually erroneous assertion that the maximum amount which may be awarded or should be awarded for general damages in actions for personal injury is a figure in or about the ‘cap’ or limit on general damages in cases involving catastrophic injury where there is a substantial claim for pecuniary loss.
While no issue arises in this case on the applicability or otherwise of the ‘cap’ in relation to the level of general compensation, it appears to me that an integral part of the proposition which is being advanced is that, within the legal scheme of awards for other personal injuries, the ‘cap’ amount is the upper bench mark against which the principle of proportionality is to be applied: in short, the level of award in any given case must be proportionate to the so called ‘cap’ amount, currently in a range of €450,000 to €500,000. It follows that the award to be made by the Court on this appeal must be proportionate within a scheme of awards for general damages where that figure is the upper limit.
I cannot accept this proposition since not only does it fail to properly reflect the relevant jurisprudence on the matter but also because to do so would necessitate the exclusion of awards in very serious personal injury cases to which the ‘cap’ does not apply from the scheme (non ‘cap’ cases), where … the level of general damages may exceed the ‘cap’ amount. Nor can I accept the proposition advanced on behalf of the Minister that the object, purpose or intention of the principles enunciated in Kearney v. McQuillan [2012] 2 I.L.R.M. 377, Nolan v. Wirenski and Payne v. Nugent, relied on in Kampff v. Minister of Public Expenditure was to recalibrate downwards the level of general damages in personal injuries actions; scrutiny of those decisions warrants a quite different conclusion.
There is nothing new about the principles which are to be applied to the assessment of general damage nor is there any basis to suggest that the Court of Appeal has adopted a policy and embarked on a mission the object of which is a reduction in the level of awards for personal injuries in general, quite the contrary. In any event, as was made clear by the court in Russell v HSE [2015] IECA 236, the jurisprudence on the subject does not admit a public policy approach to damages.”
The appropriate figure
“… must be one which necessarily reflects the whole spectrum of awards and not just the amount in cases to which the ‘cap’ applied, particularly as the quantum in non ‘cap’ cases, may exceed, occasionally by a very considerable sum, the ‘cap’ amount.
Accordingly, to exclude from the range of the notional scale non ‘cap’ cases where awards may exceed the ‘cap’ amount would result in the introduction of an artificially lower limit or level against which to apply the principle of proportionality, a consequence which, in my judgment, is neither warranted in principle or by law. See the decision and very useful observations of Cross J. on this topic and on the ‘cap’ in general in Woods v Tyrell [2016] 355 at para 29 et seq.
Indeed, inherent in the consequential distortion of the range of general damages for personal injuries and thus the scale which would result from setting the maximum tariff at or about the ‘cap’ amount is the risk of working an impermissible injustice on a deserving Plaintiff through a lower award than would otherwise obtain if the principle of proportionality was applied to a notional range of damages where the upper end figure reflected awards for general damages in non ‘cap’ cases that exceed the ‘cap’ amount; such a scale would fully and properly reflect ‘everything from the most minor to the most serious injuries.’ In this regard the potential for an award of general damages in a non ‘cap’ case to exceed the prevailing ‘cap’ by a very considerable sum is not to be discounted or underestimated; by way of example see A.B. v. B.C and Anor [2011] IEHC 88, a non ‘cap’ case where general damages for very serious but not catastrophic personal injuries were assessed at €700,000, together with special damages of €75,478.”
Applying Appeal Court Criteria
Treacy v Minister for Public Expenditure and Reform [2019] IEHC 62. O’Connor J
“I do not divine from the judgments of the Court of Appeal an indication that the Book of Quantum or High Court awards should be reduced by 45% to 50% in general. The proportionality principle is stressed as it was recognised by MacMenamin J. in Kearney v. McQuillan [2012] 2 ILRM 377; [2012] IESC 43. It is my view that a court determining awards under the Garda Compensation Scheme, which incidentally does not provide for any appeal, should not move beyond the proportionate factor reference to the cap of €450,000.
The suggestion that one should reference ‘average earnings’ in the awarding of general damages introduces questions about the assessment of actual incomes whether through earnings or gains of the super-rich, highly paid multinational executives, well-remunerated public servants, self-employed persons, industrial-wage earners, minimum-wage earners and those who live just above and below the poverty line. Moving to accept such a factor under the Garda Compensation Scheme for the awarding of general damages requires, in my respectful view, statutory intervention in the absence of established judgments of the Court of Appeal or the Supreme Court referencing such a factor for the awarding of all general damages. Yes, O’Higgins C.J in Sinnott v Quinnsworth [1984] ILRM 523 at 532 mentioned ‘… general level of incomes’ but it must be stressed that the Supreme Court was reviewing an award by a jury for general damages in the sum of IR£800,000 (= €1,015,790.00) plus very considerable special damages. In addition, the mechanism to ascertain the average earnings needs to be addressed if the Courts are going to adopt that approach which ignores some of the levelling that occurs with mandatory and voluntary insurance. As far as this Court is aware, the latter aspect of insurance has not featured in the argument for applying the average earnings factor.
This Court recognises the duty to determine each claim separately and to apply the ratios of the Court of Appeal and the Supreme Court in the realm of awarding damages for personal injuries.
I do not ignore my own limited experience in personal injury litigation prior to my appointment as a High Court Judge over three years ago. Moreover, I heard counsel for the plaintiff refer to the reasonable approach taken by the President of the Circuit Court (Groarke P.), in awarding damages and of which I am aware for the type of injury that I have described. I agree with the band of damages cited by Counsel for the plaintiff while noting the practice of this Court to itemise the general damages for past and future suffering individually.
Counsel for the defendant acknowledged modestly that he does not have recent experience before Groarke P. while confirming his appearances in the Circuit Court. He suggested a much lower figure by reference to an award of Twomey J. It is clear that counsel and the Court recognise that the plaintiff’s claim would fall within the Circuit Court jurisdiction if it could have been prosecuted there. I am not precluded from having regard to the Book of Quantum and I have looked at same. I certainly have regard to the more recent judgments of the Court of Appeal in relation to the awarding of proportionate damages for personal injuries. I consciously exclude the factor which relates to average earnings for the reasons which I have already explained and also for the fact that I do not have evidence of those earnings.”
In O’Riordan v Clare County Council [2019] IEHC 330, the High Court awarded €95,000 for pain and suffering to date and €45,000 for pain and suffering into the future where the plaintiff had suffered a very serious and nasty fracture to his left ankle. It fractured an a number of the bones in the ankle required a significant surgical operation to fix the bones and required signficant surgery and signifant pain and suffering.
In O’Donnell v Morrissey [2019] IEHC 344, the Hogh Court awarded €80,000 for pain and suffering to date and €25,000 for pain and suffering in the future. The claimant suffered a moderately severe wrenching injury in her neck and back in a RTA leading to limitation of movement, recurring pain, stiffness and discomfort. The injuries exacerbated an earlier back condition. The syptoms were likely to endure for 1 / 2 years. It has impacted work and she needed to hire assistance on occastions.