PI Damages
General
Where the defendant has committed a tort /civil wrong, the claimant/wronged party is entitled to monetary compensation so as to put him in the position in which he would have been, but for the wrong committed. In some cases, an injunction or order prohibiting conduct, or exceptionally ordering the defendant positively to do something, make be granted instead of, or in addition to, monetary compensation.
The general principle of damages in tort / civil wrongs is that the claimant should be put in the same position in which he would have been, but for the commission of the tort. The extent of compensation available is greater than in the case of a breach of contract.
There is an element of subjectivity in the quantification of damage or loss for personal injuries. Pain, suffering and loss of bodily functions or limbs are not easily quantified in monetary terms. However, the law takes a pragmatic approach to assessing what fair and appropriate compensation is.
The law of damages makes a broad distinction between special and general damages. In some contexts, general damages are those which follow naturally from the tort / civil wrong. They do not need to be specially claimed.
In this context, special damages refer to particular losses in addition to general damages which result from particular or unique circumstances. In the context of personal injury claims, special damages sometimes describe those that are quantifiable in monetary terms.
Liability and Damages
Liability in negligence requires a breach of a duty of care. It also requires proof of loss and the extent of the loss. Establishing liability opens the door to recovery of damages. There may be contributory negligence in some cases.
The loss may be by way of personal injury, property damage and financial loss arising in consequence. The law allows recovery of damages for psychiatric or psychological injuries. They may include depression, posttraumatic stress disorder, psychosomatic pain, anxiety and panic attacks. Generally, recovery is allowed where it follows from personal injuries. Recovery for such injuries by themselves is severely limited.
In some cases, there may be separate trials on liability and damage. This allows for the assessment of damages in complex cases to be postponed until the defendant’s liability is determined.
Liability is often accepted so that the trial deals only with the issue of damages. An interim award may be made if the claimant is determined to be liable or when the defendant’s liability has been accepted.
General & Special Damages
Compensation in a civil action for tort is almost always awarded by way of a lump sum. The award is made at the conclusion of the trial. It has become more common for courts to itemise awards of damage.
The courts seek to award full compensation to the claimant who suffers personal injury or other loss by reason of the fault of another, for the consequences of that fault, in so far as money is capable of so doing.
Damages are categorised as special damages or general damages. Most future loss and damage, damage for pain and suffering, whether before or after the trial, together with damage for loss of amenities and other immeasurable factors, including life expectation, disabilities and disfigurement, are awarded globally as general damages.
Special damages must be more specifically pleaded. Special damages are out-of-pocket expenses that can be determined by adding together all the plaintiff’s quantifiable financial losses.
Special damages are measurable losses and expenses, such as medical costs and loss of earnings prior to the trial. They usually also include future quantifiable losses. Some types of loss may be special damages or general damages, depending on the circumstances and the manner in which the claim is made.
Once and for All
Generally, a claim for damages is a once and for all claim. It includes all damages, past and future, prospective and contingent. What happens after the award is irrelevant.
If the injuries worsen significantly so that higher compensation would have been merited, there is no further recourse. Correspondingly, if the defendant suffers less loss than anticipated at trial, the position remains unchanged.
Provision has been made for payment of awards of damages in instalments, at least in some types of personal injury case. See the Separate chapters.
This is usually a once and for all non-reviewable sum. The fact that later circumstances show it to be too high or too low is usually irrelevant.
Due to some extent to the desirability of ascertaining the extent of symptoms and letting them settle down and to the delays in the civil litigation process, most cases do not go to trial many years later. In the majority of cases which settle, the settlements occur relatively late in the day unless an Injuries Board offer has been accepted.
The courts have commenced making structured injury compensation awards, although the vast majority of personal injury claims are determined on the conventional base. Legislation has been enacted, allowing for periodic payments in some limited types of cases, which may be adjusted to take account of later circumstances.
Assessment of Damages
The assessment of compensation involves an appraisal of what would have happened but for the accident and an appraisal of what will happen in the future. Both will usually involve very considerable uncertainty and guesswork.
The judge may have to appraise the probable outcome of long-term injuries and whether a complete recovery will be made. He may have to decide the degree of future disability and its impairment of the claimant’s earning capacity.
There may be further pain and discomfort. Life expectancy might be shortened. There may be a risk of complications with some injuries. Some risks and complications may be extremely serious but have relatively low probability.
Reducing to Money
Evidence will be put forward to the judge on the above issues, where relevant. Each side may present contradictory evidence. The judge must determine the position on the basis of the evidence on the balance of probabilities. He may then infer and hypothesize future unknowns and probabilities on the basis of such findings.
The various probable losses are ultimately reduced into a single lump sum. The judge need not articulate all these probabilities and possibilities where the weight and range of factors that bear upon the compensation award are necessarily complex. It may involve substantial, if informed, guesswork in relation to the future.
The effect of a single lump sum award for all time is that irrespective of the uncertainty and future outcomes, and there is no later possibility of correction. In cases where the awards are based on probability, they are necessarily incorrect in one sense. If the probability occurs, the compensation will be a fraction representing the probability of the occurrence. If it does not emerge, the compensation will have been excessive.
It is sometimes alleged that psychological factors may delay recovery until after a trial or settlement. On the other hand, it is sometimes claimed turn there may be prejudice against so-called compensation neurosis on the part of judges, which may lead to under-compensation.
Present and Future Losses
Damages for pre-trial loss quantifiable in money terms may, in principle, carry interest to the date of trial. In England and Wales, the pre-trial loss for pain and suffering has been held to bear interest.
Damage for future loss in earnings does not carry interest. They are effectively a discounted value of the future loss.
Pre-trial loss of earnings will be generally quantifiable. Post-trial losses involve predictions and guesswork, which may be informed to a certain extent by the evidence before the court.
The courts do not take generally use scientific measures. However, some scientific or mathematical methods may be used in the calculation of particular types of loss.
Reduced earnings may be capitalised based on a multiple, equivalent to the discount rate held to be appropriate. This may then be reduced to cover contingencies, such that the person may not have lived as long etc. In other cases, the multiple / discount rate may factor in these contingencies. The process may be more or less systematic or scientific.
Future Losses
In some cases where there is a severe injury, it is desirable for the trial to be postponed until the injuries have settled to a final stage of development or there has been a recovery.
There may be difficulties in predicting the loss of future earnings consequent on injuries. It will not be evident whether a person skilled in an area which is now cut off as a result of the injury may be able to obtain alternative employment and, if so, to what extent that would offset his lost earnings.
Just as future events are predictable, the future course of taxation may be highly uncertain and may change significantly. In the past, tax rates on high income were extremely high. The issue is also affected by the partial availability exemptions from income tax of most personal injury awards, with a more limited exemption for the income on investments thereof.
Issues with Future Uncertainty
Although there may be after the event uncertainty for insurance companies, there are financial techniques and instruments which could be used to deal with converting the future probabilities into determinable present-day sums for a whole class rather than an individual. Although there might be variation in particular cases, insurance companies and their actuaries could determine the position as apples to a group with an acceptable level of accuracy.
Another difficulty with variable awards arises in the context of a settlement. The vast majority of cases settle. It would involve considerable complexity to provide for the opening and review of settlement agreements. The settlement agreement could allow, by its terms, for future variation.
The possibility of dispute in such cases could be recurrent re-litigation of issues which might swamp the courts. Even with arbitration, there is a considerable risk scope for costs if such issues could be reopened.
Actuarial Evidence
The courts may hear actuarial evidence in relation to future losses. This is commonly offered in cases involving significant loss of future earnings. Actuarial evidence is based on probabilities. There may be a shortage of relevant data available in some cases.
Actuarial techniques have been devised to enable the calculation of insurance premiums for different classes of persons. This is to ensure that sufficient reserves are kept. However, an actuarial assessment of an individual in a personal injury award is not seeking to find the average result or outcome. It seeks to ascertain the “correct position”.
It is possible that the average may represent the correct or fair loss of earnings. However, the actuarial method of converting across-the-board averages into a particular lump sum, may not represent fair or appropriate compensation in an individual case. Damages should be full and fair.
Periods of inflation have had a severely negative effect on lump-sum compensation awards made in the past. Awards for future nursing care may prove grossly inadequate following periods of inflation.
Intangible Losses/ General Damages
Most challenging to quantify are intangible or psychological losses, including pain and suffering, disabilities and loss of expectation to life. Damages for mental stress, humiliation, discomfort and dignity are usually lumped together as pain and suffering. It is difficult to impossible to measure in damages the losses concerned.
It has been suggested that the value of an injury is the amount that the person would have been willing to pay to incur it. However, this is highly artificial and hypothetical. A person might be willing to pay virtually infinite quantities of money in order to avoid serious injuries. The value of monies differs relative to the wealth of the recipient.
The courts have sought to place extreme outer limits on what is regarded as reasonable compensation. Prior to the abolition of injuries, the question was left to the jury as a whole. This led to many high awards and was one of the key factors in the abolition of juries in most personal injury actions in 1988.
The Book of Quantum and, latterly, the Judicial Council Guidelines have sought to place limits in assisting quantification of various types of personal injuries and losses, including, in particular intangible losses of that type above. It has sought to introduce consistency.
Subjective Factors
In the last 40 to 50 years, the courts have emphasised the subjective factors in assessing compensation for intangible losses of the types mentioned above. Certain types of loss impact more severely on certain persons depending on their occupation, gender, age and circumstances.
For a person who pursues hobbies and interests, sports may be more impacted, particularly by certain types of injury which prevent him from enjoying his activity more than others. Accordingly, compensation should be awarded for such loss.
The position becomes anomalous in the case of persons who have lost all senses or are in a coma or equivalent state. In these cases, the courts have awarded less damages for pain and suffering on the absence of consciousness of their position. Although there is a logic to this subjective approach, it results in the position that the level of objective loss is not compensated.
Fatal Injuries
Fatal injuries may lead to two types of claims. The more substantial claim is usually that for loss of dependency. Where a person has been killed who was a “breadwinner”, a spouse and other dependents may take action. The loss is suffered by the dependants themselves on their own account, and they take the action as such.
There is a limited claim in fatal injury cases for compensation for mental distress. It is subject to a financial cap. It is open only to a relatively limited class of relatives.
Dependents need not necessarily be spouses and children. There may be parents and others who can show actual financial dependence and reliance on the deceased. The second type of award is relatively small by way of “solatium”,; mental distress. It is capped at €35,000 in total.
Appeals
A Circuit Court award or order may be appealed by way of a rehearing in the High Court.
In the case of the High Court, the Court of Appeal does not rehear the case but reviews the evidence. The scope of the appeal is relatively narrow. If it adjusts the award, it may do so on the basis of errors of law or principle rather than on a reappraisal of the facts.
The Appeal Courts may interfere with awards that are out of reasonable range. However, an Appeal Court will not change an award simply because it disagrees on the basis that it is too high or too low.
This is necessary so as otherwise; there would be an incentive to fight every case to an appeal. It also reflects the fact that the Court of Appeal and Supreme Court do not retry the case; they review it on the basis of the transcript.
There may be a variation in the award of damages if the award is appealed. Since the 1980s forward, the superior court in Ireland has sought to place upper limits on an award of damages for pain and suffering.