PI Damages
Cases
Smyth (An Infant) v. Ward & Ors
Once & for all
[2004] IEHC 370 (01 December 2004)
Judgment of Finnegan P. delivered on the 1st day of December 2004
The Plaintiff was born on the 25th January 1993 and is now almost twelve years of age. She sustained injury in an accident on the 13th August 1999 and this gives rise to the present action. There has been no appearance by or on behalf of the first and second named Defendants. The Defence delivered by the third named Defendant admits liability and the matter will proceed as an assessment against that Defendant. The matter comes before me by way of Notice of Motion issued on behalf of the Plaintiff seeking directions as to when the action should proceed to trial. The background to the motion very briefly is that in the accident the Plaintiff sustained an injury to her left ear which leaves her with seriously compromised hearing on that side. The hearing loss on the basis of the Green Book is 56.25%. She also sustained an injury to her right ear the loss of hearing there being 23.75% without a hearing aid but improving with a hearing aid. Her combined loss is 30.25%. The medical reports obtained on behalf of the Plaintiff disclose the possibility of a future complication in the right ear namely retraction leading to cholesteatoma. Should the complication arise she would require surgical repair to that ear, a very major operation. The medical reports obtained on behalf of the Plaintiff disclose that there is a significant chance of this occurring but that it is very difficult to form an opinion as to how significant that chance is. Should cholesteatoma occur it would result in a further reduction in the hearing in the right ear. The condition could be triggered by sinusitis or rhinitis. The condition would be disastrous for the Plaintiff. The Plaintiff seeks to have the hearing of the action deferred until she attains the age of eighteen years. At that time if there has been no deterioration in her right ear a prognosis could be given with more certainty than at present. The third named Defendant opposes such deferral.
In the first instance I must balance, in the light of all the circumstances of the case and the interests of justice, the Defendant’s interest in having a prompt hearing of this action with the Plaintiff’s interest in having established with as much certainty as possible what the future might hold for her. While it is clear that even if the hearing is deferred there will be considerable discussion on the likelihood of a deterioration in the Plaintiff’s right ear at the hearing of the action and that this will create a difficulty for the Court in assessing general damages. Such difficulty is not unusual and is regularly dealt with by the Court. However I also accept having considered the reports of the Plaintiff’s E.N.T. Specialists Mr. Gormley and Mr. Blayney that their prognosis will be attended with some greater certainty if the passage of some years is allowed before the hearing. I do not see that any special or particular injustice will be caused to the third named Defendant by such deferral of the assessment of damages as in the intervening period the Defendant will have the use of the amount of the ultimate award. The objective of achieving justice between the parties would I am satisfied be achieved by a deferral: the more definite the prognosis the less the likelihood of the Plaintiff receiving an inadequate award should she subsequent to the hearing suffer from cholesteatoma and on the other hand the third named Defendant should the condition not develop between now and the ultimate date of hearing is likely to face a lesser award as a result of greater certainty in the prognosis which will then be available.
However it is also necessary to have regard to the European Convention on Human Rights Article 6(1) which guarantees a trial within a reasonable time. Reasonableness is assessed in the light of all the circumstances of the case, having regard in particular to the complexity of the issues before the national Courts. X v France ECHR Series A Vol. 234 – C. The Court should also consider what is at stake for the Applicant in the litigation: Mikulic v Croatia (2002) 11 BHRC 689. As appears from two recent cases against Ireland – McMullen v Ireland and Dawson v Ireland – it is the responsibility of the Court to actively ensure that there is no delay.
In the circumstances of the present case I am satisfied that justice demands that there should be some further delay to enable the prognosis in respect of the Plaintiff to be rendered more certain. It is quite clear from the medical reports exhibited on the application that the delay sought, that is until the age of eighteen, is arbitrary. Having regard to the time which has passed since the date of the accident I am satisfied that a further period of two years will enable the Plaintiff’s medical advisers to express their prognosis with more certainty than that which they are capable at present. I have already indicated that the delay should not unduly prejudice the third named Defendant as the matter will proceed as an assessment only and it will have the use of the funds ultimately found to be payable to the Plaintiff until the trial. In these circumstances I propose in the interests of justice to direct that a further period of two years shall elapse before the action is listed for hearing.
Approved by Finnegan P.
Rafter v. A.G. & Ors
No Recognisable Condition
[2004] IEHC 28
Judgment of Finnegan P. delivered on the 26th day of February 2004.
By Notice of Motion dated the 18th day of July 2003 the Defendants seeks the following reliefs –
(1) An Order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts 1986 that the Plaintiff’s claim be struck out on the grounds that it discloses no reasonable cause of action.
(2) Further and in the alternative an Order dismissing the Plaintiff’s claim pursuant to the inherent jurisdiction of the Court.
The Plaintiff’s claim was commenced by Plenary Summons and was issued on the 8th day of May 2002 and is one of a series of claims which arise in the following circumstances. The Plaintiff was employed by the Defendants at Government Buildings. In the course of his employment he was exposed to asbestos and he claims that in consequence thereof he sustained personal injury. In the particulars of personal injury in the Statement of Claim it is pleaded that on becoming aware of his exposure he suffered from worry and anxiety. While not showing any signs of asbestos exposure he is at risk as a result of the same.
The Rules of the Superior Courts Order 19 Rule 28 provides as follows –
“The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious the Court may order the action to be stayed or dismissed, or judgment to be ordered accordingly, as may be just.”
On an application under this Rule the Court can only make an Order when the pleading discloses no reasonable cause of action on its face: Barry v Buckley 1981 I.R. 306.
The Court also has an inherent jurisdiction to stay proceedings and, on application made to exercise it, the Court is not limited to the pleadings of the parties but is free to hear evidence on Affidavit relating to the issues in the case.
As to whether when an Order is appropriate it should be an Order to stay or to dismiss the proceedings the Court should have regard to whether on a successful application for amendment the Plaintiff’s claim might be sustainable: Keaveny v Geraghty 1965 I.R. 551 Walsh J. at 562. Again the Court must be slow to exercise its jurisdiction to dismiss the action: Sun Fat Chan v Osseous Limited 1992 1 I.R. 425.
The law in relation to fear of disease cases was dealt with by the Supreme Court in Fletcher v Commissioners of Public Works in Ireland 2003 2 ILRM 94. In order to succeed a Plaintiff must suffer from a recognisable psychiatric illness. The Plaintiff in his Statement of Claim here does not plead any such illness but merely pleads that he suffered from worry and anxiety. Again in such cases in order to succeed the Plaintiff must establish a physical injury and no physical injury is expressly pleaded. On the pleadings accordingly the Plaintiff’s claim must fail and the Defendants are entitled to have the claim dismissed or stayed under the Rules of the Superior Courts.
However where the inherent jurisdiction of the Courts is relied upon I am entitled to have regard to evidence and in this case I have an Affidavit from the Plaintiff’s Solicitor from which a number of matters appear. Firstly the Affidavit exhibits a Report of Dr. John A. Griffin, Consultant Psychiatrist dated the 11th July 2002 and this is relied upon as showing that the Plaintiff in fact suffers from a recognised psychiatric condition. Having read the Report I am not satisfied that the Report is to this effect. I reject this argument.
The Affidavit however raises an argument on the issue of liability. The Deponent relies on the evidence given by Professor Luke Clancy in Fletcher v Commissioners of Public Works in Ireland as recorded in the Judgment in that case that persons exposed to inhalation of asbestos particles may suffer microscopic scarring of the inner surface of the lungs and that in Mr. Fletcher’s case it was likely that he had inhaled asbestos fibres, that some would have remained in his body and caused microscopic scarring. However there is nothing on Affidavit to suggest that in the instant case having regard to the degree of exposure the same is true. Accordingly having regard to the following –
(1) There is no evidence that the Plaintiff suffers from a recognised psychiatric disorder and
(2) There is no evidence that the Plaintiff is likely to have suffered microscopic scarring it is appropriate that under the Court’s inherent jurisdiction the claim should be dismissed or stayed.
In the circumstances of this case I think it appropriate that the action should be stayed rather than dismissed. It may be that on an application to amend the pleadings the Plaintiff will be able to produce evidence that he suffers from a recognised psychiatric condition and that in the circumstances of his exposure to asbestos it is likely that he had inhaled asbestos fibres and that some of them would have remained in his body and caused microscopic scarring. I think it meets the justice of the case that the action should be stayed and not dismissed as prior to the decision in Fletcher v Commissioners of Public Works in Ireland the state of the law was so unclear that the Plaintiff’s advisors in obtaining reports from medical experts may not have focused on the two essential requirements to render his case statable. I bear in mind that the Supreme Court refrained from expressing any view as to whether the implantation of fibres into the lung could be described as a physical injury and that in that case damages were awarded for psychiatric injury only.
Accordingly I order that the Plaintiff’s action be stayed so however that the Plaintiff shall be entitled to seek to amend his Statement of Claim and may bring a Motion for that purpose. Such Motion should be grounded on an Affidavit by medical experts that –
(a) The Plaintiff suffers from a recognised psychiatric illness and
(b) In the circumstances of the Plaintiff’s exposure to asbestos it is likely that he had inhaled asbestos fibres and that some of them would have remained in his body and caused microscopic scarring.
Packenham v. Irish Ferries Ltd. (Formerly B & I Ltd.)
Fear of Disease
[2004] IEHC 27 (26 February 2004)
Judgment of Finnegan P. delivered on the 26th day of February 2004
By Notice of Motion dated the 7th day of July 2003 the Defendant sought the following reliefs –
(1) An Order dismissing the Plaintiff’s claim herein pursuant to Order 19 Rule 28 on the grounds that the pleadings herein disclose no reasonable cause of action on the grounds that they are frivolous or vexatious.
(2) Further or in the alternative an Order dismissing the Plaintiff’s claim pursuant to the inherent jurisdiction of the Court.
It has been agreed that my determination on this Motion should regulate also the following actions:-
(1) The High Court 1996 592P Bernadette Mulligan, Plaintiff and Irish Ferries Limited (formerly B & I Limited), Defendant.
(2) The High Court 1996 No. 4414P Lorraine Morris, Plaintiff and Irish Ferries Limited (formerly B & I Limited), Defendant.
(3) The High Court 1996 No. 8894P Anne Rohan, Plaintiff and Irish Ferries Limited (formerly B & I Limited), Defendant.
(4) The High Court 1996 No. 4413P Derek Brady, Plaintiff and Irish Ferries Limited (formerly B & I Limited), Defendant.
Further this Motion was heard at the same time as a Motion in an action The High Court 2002 6609P, Kieran Rafter v Ireland and The Attorney General, The Minister for Justice, Equality and Law Reform and The Commissioner of An Garda Siochana in which I have just given judgment. The remarks which I made in that Judgment concerning the Court’s jurisdiction and how it should be exercised apply equally here.
In his Statement of Claim the Plaintiff pleads that he sustained personal injury as a result of being exposed to asbestos. In the particulars of personal injuries it is pleaded that the Plaintiff became extremely annoyed, upset and distressed on becoming aware of his exposure. Thus no recognised psychiatric illness is pleaded nor is there a plea of any physical injury. In his reply to a Defendant’s Notice for Particulars and a Notice for Further and Better Particulars the Plaintiff failed to advance the matter further.
The Plaintiff’s Solicitor swore on Affidavit on the Motion. In paragraph 3. thereof he deposes as follows –
“I say and am advised by Professor Luke Clancy, Respiratory Physician that it is likely that if the Plaintiff has been exposed to asbestos dust over a prolonged period of time he will have sustained microscopic scarring or lesions to his lungs.” (Underlining added).
This general proposition is in accord with the evidence given by Professor Clancy in the case of Stephen Fletcher v Commissioners of Public Works in Ireland. However it is not case specific and falls short of an averment that having regard to the actual extent of the exposure of the Plaintiff to asbestos it is likely that he has sustained lesions to his lungs.
The Deponent continues in paragraph 4. of his Affidavit as follows –
“I say that I have consulted with Counsel and with the Plaintiff’s medical personnel with a view to advising the Plaintiff whether or not he has a cause of action and further state that such consultations are ongoing and have not yet been completed. I say that this is particularly the case in respect of Professor Luke Clancy, the Plaintiff’s Consultant Respiratory Physician who has requested more time from my firm in order to give his advices.”
It is reasonable it seems to me to read this averment as an acknowledgment that the Plaintiff is not in a position to adduce evidence that he is likely to have developed lesions.
In a further Affidavit filed on behalf of the Plaintiff the Plaintiff’s Solicitor avers that he has been informed by Professor Clancy that medical research has led to the discovery in persons exposed to asbestos fibres of small airways disease. However it is not averred that the Plaintiff suffers from small airways disease although it is proposed that testing should be carried out in relation to the same. I do not consider this to be a ground upon which the Plaintiff’s application should be refused: should it transpire that the Plaintiff in fact suffers from this condition he can of course institute proceedings in relation thereto having regard to the provisions of the Statute of Limitations (Amendment) Act 2000.
Neither of the Affidavits filed in the matter disclose a recognised psychiatric illness: all that is disclosed on the Statement of Claim and the amplifying particulars is that the Plaintiff became extremely annoyed, upset and distressed on becoming aware of his exposure to asbestos. No evidence has been adduced that he in fact suffers from such a condition.
The Plaintiff’s claim here is one of approximately 400 claims pending or depending against the Defendant. It would be oppressive of the Defendant to allow these claims to go to hearing where on the pleadings no recognised psychiatric illness is pleaded. The law in general provides no remedy for annoyance, upset or distress.
In these circumstances I am satisfied that it is appropriate to make an Order staying this action and the four other actions in which similar motions were listed for hearing with it and which I have mentioned above. The order will be in like terms to that which I have made in the High Court 6609P/2002 Kieran Rafter v Ireland and The Attorney General, The Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Siochana.
Kampff -v- Minister For Public Expenditure and Reform
Principles of Assessment
[2018] IEHC 371 (27 June 2018)
RESPONDENT
JUDGMENT of Mr. Justice Twomey delivered on the 25th June, 2018
Summary – how to put a monetary value on pain and suffering?
1. This case concerned a claim by the applicant, Garda Kampff, for compensation in respect of a soft tissue injury to his hand. Counsel for Garda Kampff relied on the Book of Quantum to urge on this Court an award of circa €21,700. As noted in detail hereunder, Garda Kampff sustained bruising to his hand when he struck it against shelving while trying to arrest a suspect. He did not require pain medication or physiotherapy, but he was given anti-inflammatories and his hand was strapped and he was on sick leave for five days before making a full recovery. Despite the Book of Quantum expressly providing that minor injuries to a hand have led to awards of up to €21,700, this Court concludes that the award of anything even close to this magnitude could not be justified for what was in essence bruising to the hand.
2. This Court concludes that the appropriate amount of compensation is €5,000. While this Court is obliged simply tohave regard tothe Book of Quantum in civilian personal injury cases (but not in Garda Compensation cases), which means the Book of Quantum is not binding, this Court (and indeed the District Court and the Circuit Court) is obliged to follow the binding principles for the assessment of damages for personal injuries enunciated by the Court of Appeal and the Supreme Court.
3. Applying these binding principles led this Court to an assessment of a figure of €5,000 for the pain and suffering involved, which is very different from the Book of Quantum figure urged upon this Court by counsel for Garda Kampff. Accordingly, it is important that this Court sets out these principles and the application of these principles to Garda Kampff’s case, which led to the assessment of a figure of €5,000, rather than the figure of €21,700 suggested by counsel for Garda Kampff.
4. Accordingly, this judgment:
•summarises the principles laid down by the Court of Appeal and the Supreme Court which this Court is obliged to apply to the calculation of how much general damages are appropriate for any personal injury, including:
o the relevance of the average earnings for people in Ireland of €45,611 per annum or €3,800 per month, to the calculation of general damages for pain and suffering,
o the necessity for awards for personal injuries to be proportionate to the ‘cap’ on general damages of €450,000 for pain and suffering for the most catastrophic injuries, such as paraplegia,
o the effect of the recent downwards ‘recalibration’ by the Court of Appeal of the awards of general damages for personal injuries.
This judgment also:
•summarises the principles applicable to one particular category of personal injuries, namely those suffered by members of An Garda SÃochána, which cost much more in legal fees than other personal injury cases because:
o first unlike other personal injury cases, minor injuries, which are suited to being heard in the District Court or Circuit Court, must under current legislation be dealt with in the High Court, which commonly gives rise to a situation where the costs will be a multiple of the award in damages, which costs are invariably paid by the taxpayer,
o secondly, unlike other personal injury cases, under existing Superior Court Rules, there is no incentive for Garda Compensation cases to be settled without the expense of a court hearing, thus leading to no early settlement of cases with no consequent saving on legal costs, which legal costs are, as noted, invariably all paid by the taxpayer, and
o thirdly, unlike other personal injury cases, Garda Compensation cases are not subject to the Personal Injuries Assessment Board (“PIAB”), and so garda claims can only be processed by lawyers in the High Court at considerable expense (because of the very considerable cost of High Court litigation). Injured gardaà do not have the right of injured civilians to have their claims dealt with in the speedy and cost-efficient assessment system provided by the PIAB. This is despite the fact that the PIAB is specifically designed to deal with the type of injuries suffered by gardaà which appear before this Court (namely assessment only cases as liability is invariably not contested) and which if dealt with by PIAB could be done with little or no legal costs to the taxpayer.
Garda Kampff’s injuries to his hand
5. The case which led this Court to consider in detail the principles applicable to the calculation of general damages for personal injuries in general, and specifically to gardaÃ, is the claim by Garda Kampff for compensation for bruising to his hand, when he struck it against some shelving when he was effecting the arrest of a suspect almost five years ago on the 1st September, 2013.
€21,700 for bruising to a hand?
6. In this claim, counsel for Garda Kampff suggested to this Court by reference to the Book of Quantum published in 2016 (the “Book of Quantum”) that the appropriate award of compensation/general damages for pain and suffering for Garda Kampff should be in the region of €21,700.
7. Garda Kampff’s claim for compensation is made under the Garda SÃochána (Compensation) Act, 1941 (the “1941 Act”), as amended by the Garda SÃochána Compensation (Amendment) Act, 1945 (the “1945 Act”), both of which are referred to as the “Garda Compensation Acts”. As noted hereunder, under these Acts, Garda Kampff is entitled to the same level of general damages for the pain and suffering he experienced as any other plaintiff would be entitled to, in a personal injury claim against a third party.
8. It is the fifth claim that Garda Kampff has made under the Garda Compensation Acts, the first was made in relation to a kick to his hand leading to a fracture and Post Traumatic Stress Disorder in relation to a bite injury from the one incident in 1993. The second claim was in 1995 and related to a road traffic accident at work and resulting in severe anxiety which he suffered thereafter. The third claim related to facial abrasions and conjunctivitis from a road traffic accident at work in 1996. The fourth claim related to a soft tissue injury to his scrotum in 1997.
9. As regards the particulars of the current injury to Garda Kampff, an MRI confirmed that he had not sustained a fracture to his hand but sustained some bruising of the bone. His hand was strapped and put in a sling and he was given anti-inflammatories. He did not require any pain medication, nor did he require any physiotherapy. Garda Kampff was on sick leave for five days. He fully recovered from the injury within a short time of the incident and had no long-term effects. However, Garda Kampff stated in his evidence that it was one year before his hand was fully better. Special damages of €1,185 for Garda Kampff were agreed between the parties.
10. In order to consider whether the amount suggested by counsel for Garda Kampff is an appropriate award for general damages, which is essentially an amount for the pain and suffering incurred by Garda Kampff as a result of his hand injury, this Court will consider:
A. Garda compensation claims for personal injuries, and
B. The mechanics of calculating damages for all personal injuries.
A. GARDA CLAIMS FOR PERSONAL INJURIES
11. Every Monday during the legal term, this Court assesses the amount of compensation payable to members of An Garda SÃochána who are injured during the course of their duties, i.e. how much is appropriate to compensate an injured party for the pain and suffering caused by the injury. The injuries in question can range from relatively minor injuries (such as a non-bony injury to a finger) to life changing injuries. Thankfully, the vast majority of claims heard in this Court belong to the first category.
12. It is beyond question that each of the plaintiffs before the Court are entitled to compensation for their injuries just as in appropriate cases, civilians may be entitled to compensation for injuries suffered during the course of their employment. Indeed to date, this Court has been struck by the bravery of the gardaÃ, who on a daily basis risk their lives, and are injured in so doing, in order that members of the public can live peaceful lives.
13. The purpose of this judgment is to outline the principles which this Court is obliged to apply in the assessment of damages for injured gardaÃ, particularly for minor injuries, since it is a peculiarity of the statutory compensation scheme for gardaà thatallinjuries to gardaÃ, once they were maliciously inflicted and are not so minor as not to be approved for compensation by the Minister for Justice and Equality under s. 6 of the Garda Compensation Acts, are dealt with by the High Court.
14. It is anticipated that the principles set out hereunder will allow injured gardaà and their legal advisers, as well as the Department for Public Expenditure and Reform, which is the respondent in all such claims and the payer of the compensation, and its legal advisers understand how this Court is obliged to calculate awards. In this way it is hoped that the statement of these principles will facilitate the settlement of these Garda Compensation cases and ultimately lead to a saving in legal costs to the State, since as noted below, invariably it is the State which pays not just its own legal costs but also the legal costs of the injured garda.
1% settlement rate in garda cases v. 90% settlement rate in civilian cases
15. However, as noted hereunder due to what would appear to be an oversight, there is not the same incentive for lawyers to settle Garda Compensation cases as there is for other personal injury claims and hence there is a very low settlement rate of these compensation claims. Indeed, since taking over the Garda Compensation List at the start of 2018, this Court can only recall one case having been settled, which is a settlement rate of less than 1%, while anecdotal evidence would suggest that the settlement rate for other personal injury cases is in the region of 90%.
16. A dispute resolution system (since this is what the assessment of Garda Compensation by the High Court is – where the parties fail to reach agreement on the amount of compensation) which leads to 99% of plaintiffs/applicants having a full hearing in a severely under-resourced High Court (see ‘Ireland has lowest number of judges in the OECD’ per Kelly P speaking extra-judicially in theBar Review(2018) Vol 23 No. 1 at page 12) before receiving their award and thus having to put up with a delay in receiving compensation, is not a system that is designed with the injured plaintiffs/applicants in mind. This dispute resolution system does however benefit the lawyers involved, since the legal fees incurred in resolving a dispute after a High Court hearing will in most cases be greater than those involved in settling a claim without a High Court hearing. The reasons for this state of affairs are considered below. First, it is proposed to consider why all injuries to gardaà are dealt with in the High Court.
Why are minor injuries assessed in the High Court?
17. As previously noted, many of the injuries suffered by gardaà during the course of their duties are thankfully relatively minor in nature. Although such relatively minor injuries and the related damages award would be appropriate for the District Court (which has a jurisdiction of up to €15,000), these claims are nonetheless heard in the High Court, as required by the Garda Compensation Acts.
18. This means that two sets of High Court legal costs are paid by the State (out of taxpayers’ funds), first to the lawyers acting for the garda (since the garda’s legal costs are invariably paid by the State) as well as to lawyers acting for the Minister for Public Expenditure and Reform, even though the majority of awards made under the Garda Compensation Acts would only merit District Court or Circuit Court costs, if the injured party was a civilian.
It could cost the taxpayer €15,000-€20,000 to make an award of €5,000
19. The fact that a minor soft tissue injury to a hand, damages for which are assessed at €5,000, are heard in the High Court means that the costs to the taxpayer of making this award of €5,000 to Garda Kampf could be three to four times the value of the award. This Court is using an estimate of an aggregate of €15,000- €20,000 in legal costs payable by the State to counsel for the State, solicitor for the applicant and counsel for the applicant, pending the receipt from the Chief State Solicitor’s Office (“CSSO”) of submissions on average actual costs in Garda Compensation cases. This figure takes no account of the costs of the CSSO, since the solicitors therein are employees of the State). It seems to this Court as entirely illogical that it would cost three or four times the value of an award to make an that award and clearly the only beneficiaries of this system are the lawyers at the expense of the taxpayer who is funding these legal costs.
20. This curious situation arises because it is a peculiarity of Garda Compensation cases that all awards for Garda Compensation, and thus including low value awards for minor injuries, are made in the High Court, with all the expense of High Court litigation. In this Court’s view, this cannot be justified and it is possible that this approach costs the State up to €100,000 a week (in light of the number of hearings before this Court per week), in legal costs at High Court rates for cases which could be heard in the District or Circuit Court (which figure is an estimate pending the receipt of accurate figures from the CSSO). These legal costs could easily be saved by simply applying the same jurisdictional rules to personal injuries to gardaÃ, as currently apply to personal injuries to civilians, so that relatively minor injuries to gardaà are assessed in the District Court if the injury would justify an award up to €15,000, and the Circuit Court if the injury would justify an award between €15,000 and €75,000, and in the High Court thereafter. In this regard, this Court is awaiting submissions which are being prepared by the Chief State Solicitor’s Office on the level of legal fees which are paid in Garda Compensation cases where a District Court or Circuit Court level award is made in the High Court, to both counsel for the Minister for Public Expenditure and Reform and to the solicitors and counsel acting for the gardaÃ. Pending the receipt of such figures, this Court is using estimates of the likely costs for High Court actions.
21. In the alternative, if the assessment of relatively minor injuries is to continue to be done in the High Court, the legal costs should be at the District Court/Circuit Court/High Court level, depending on the level of the award. Whichever approach is taken would require a decision of the Oireachtas, since this Court has no power to amend the law applicable to the court which hears Garda Compensation claims or the law applicable to the taxation of legal costs payable in relation thereto.
Eliminating rather than reducing legal costs – use of PIAB
22. Indeed, while the foregoing jurisdictional change or legal costs change would reduce the legal costs to the State of Garda Compensation claims, a way in which these legal costs might be eliminated altogether, would be by having Garda Compensation cases dealt with by the Personal Injuries Assessment Board (“PIAB”).
23. This is because, in this Court’s view, there is no reason why Garda Compensation cases are not dealt with by PIAB, which would lead to a massive saving to the taxpayer, since no legal fees are paid when PIAB assesses damages for a personal injury. Garda Compensation cases are particularly suited to the PIAB since all the cases which appear before this Court are concerned simply with theassessmentof the appropriate level of compensation (as liability or causation is rarely an issue), and assessment of compensation for personal injuries is, after all, the veryraison d’êtrefor the PIAB. A general scheme of a bill from 2012, the Garda SÃochána Compensation (Malicious Injuries) Bill 2012 envisages a PIAB type scheme being introduced for the gardaÃ, but this bill was not enacted.
24. It is worth noting that this Court hears claims which can be seven years old or more, which is a considerable period of time for an injured garda to wait for compensation. It seems clear therefore that while the garda’s lawyers may not benefit from the use of PIAB, the injured garda will benefit because the average time for the resolution of claims before PIAB is on average seven months according to the PIAB website. Garda Kampff’s injury occurred in 2013 and is only now being assessed. There is no reason, in this Court’s view, why members of An Garda SÃochána should not be entitled to have their injuries assessed in a quick and cost efficient way using PIAB. The only beneficiaries of the current system of Garda Compensation appear to be the lawyers and the losers would appear to be the taxpayers who are funding those legal costs.
Perverse financial incentive for lawyers not to settle Garda claims
25. One further important observation should be made regarding the costs to the State of assessing compensation for injured gardaÃ. Unlike in civilian personal injury cases, where the majority of cases settle and only a small percentage of cases are heard (with the consequent saving of legal costs to the parties involved in not having to undergo a hearing), it is the reverse in Garda Compensation cases where only a small percentage of cases settle. As already noted, in this year, this Court only recalls one case being settled. It seems clear to this Court that the likely reason for this is that there is no incentive for the lawyers acting for the gardaà involved to settle the cases. This would seem to be because first there is no risk of the garda not getting an award – since liability on the part of the State is accepted in Garda Compensation cases which are heard in the High Court and so they are ‘assessment only’ cases – and secondly because there is no risk that the legal costs for the hearing will not be paid, since they are invariably paid by the State.
Arguable that it would defy economic logic for lawyer to settle garda case
26. Indeed, one could argue that, unlike in a civilian personal injury case where there is a risk of the lawyer’s costs not being paid if he does not settle, it would defy economic logic for a lawyer to settle a Garda Compensation case before the court hearing, since it will lead to the lawyer losing out on a ‘guaranteed’ payment for the court hearing, as there is no risk of him/her not being paid for the hearing, which is essentially just a hearing on the quantum of damages to be paid. It is important to note that this observation that Garda Compensation Cases do not settle is not a criticism of the lawyers involved, since the lawyers could not be expected to act against their own financial interests, particularly when their client is guaranteed to receive an award whether the case is settled or there is an award made by the High Court after a hearing, but rather it is a criticism of the system of Garda Compensation in which the lawyers must operate.
27. This absence of an incentive to settle a garda personal injuries claim does not exist in relation to civilian personal injury claims. This perverse financial incentive on the lawyers not to settle the claim is because it is not possible for a lodgment/tender offer to be made in Garda Compensation cases. This is because Order 22 of the Rules of the Superior Courts, which governs the making of lodgments/tender offers, applies to ‘any action to which s 1(1) of the Courts Act 1988 applies’. A claim for compensation under the Garda Compensation Acts is not included in the list of actions to which s 1(1) applies. Accordingly, until the law is amended, it is not possible for the State, unlike a defendant in a civilian personal injury case, to make a lodgment/tender offer to settle a Garda Compensation case. Making a lodgment/tender offer, if it were possible, in a Garda Compensation case would mean that the garda’s lawyer would have to advise the injured garda to seriously consider accepting a reasonable offer for his or her injuries, since if the court award did not beat the lodgment/tender offer, the applicant garda would not be awarded his or her full legal costs and would thus be financially worse off. In contrast, under the present Garda Compensation system, the garda invariably gets his or her full legal costs and so there is no incentive to short-circuit the litigation process and save the State the two full sets of legal costs of the hearing (the Minister for Public Expenditure and Reform’s legal costs and the garda’s legal costs.)
28. As noted by Peart J. inKearney v. Barrett[2004] 1 IR 1 at p 10 when discussing the rationale for lodgments and tender offers:
“it is desirable that all efforts to resolve disputes without incurring the high cost of a court hearing should be explored before the trial”.
Yet somewhat perversely it doesnotseem to be desirable for such efforts to be made in personal injury cases involving gardaÃ, with the taxpayer being the one who loses out by never making a saving on the amount of legal costs payable in Garda Compensation cases.
29. It seems clear to this Court that the absence of a right on the part of the State to make a lodgment/tender is the reason why Garda Compensation cases do not settle with the result that there is no real prospect of the State ever saving on legal costs by settling a case. There appears to this Court to be no compelling reason why an incentive should not be provided for gardaà personal injury cases to settle, just as there is for civilian personal injury cases to settle. This effective restriction on the State saving money on legal costs could be easily removed by amending the rules regarding lodgments/tenders so that they apply to cases taken under the Garda Compensation Act.
Conclusion – possible savings of millions of euro to the taxpayer
30. The total amount of taxpayers’ money which could be saved, by making some or all of the foregoing relatively simple changes, would seem, to this Court, to be in the millions of euro. This is because it has been estimated by the Department of Justice and Equality that there are 682 Garda Compensation claims currently in the system, with new claims being added at a rate of approximately 180 per annum. In each of those cases, one is not dealing with just one side’s legal costs to be paid by the State, but rather one is dealing with the State paying for two sets of legal costs (i.e. those of the State’s lawyers and the garda’s lawyers), and those legal costs are High Court legal costs, which are very significant even though the injuries are in many cases, relatively minor. If each of these 682 cases cost the State on average €20,000 in legal costs (which is an very rough estimate of the actual average costs of a case, pending the receipt of figures from the CSSO), one is dealing with legal costs of €13.6 million for assessments that should be capable of being with by PIAB without any legal costs and thus at a considerable saving to the taxpayer.
31. Having made those observations on changes that might be considered to the current statutory scheme for compensation for gardaÃ, the focus of the remainder of this judgment is on the mechanics of assessing damages for injured gardaÃ, whether for relatively minor injuries or for very serious injuries which are suffered by gardaà from time to time during the course of their duties.
B. RULES FOR ASSESSING DAMAGES FOR PERSONAL INJURIES
32. Next, this Court will set out the principles this Court is obliged to apply in assessing damages for all personal injury cases, including those involving gardaà who are injured in the line of duty, in light of the caselaw of the High Court, the Court of Appeal and the Supreme Court on this issue.
33. This Court does so in the hope that if the current system of Garda Compensation continues into the future without any reform, setting out these principles may encourage the Minister for Public Expenditure and Reform to make settlement offers and gardaà to accept them, and thereby increase the current negligible settlement rate and thereby lead to a reduction in legal costs paid by the taxpayer and a saving of court resources which are also funded by the taxpayer.
General damages at issue, not special damages
34. First, it is to be noted that the focus of this judgment is ongeneraldamages for pain and suffering, both past and future (or simply damages for pain and suffering) and not onspecialdamages. Special damages primarily cover past and future expenses actually incurred and arising from the personal injury as well as loss of earnings incurred by the injured party. For this reason, it is easier to quantify and less nebulous than damages for pain and suffering, since the court will have for example receipts for actual expenses incurred and details of the plaintiff’s earnings.
35. In this context, it is also important to bear in mind that while reference will be made in this judgment to a ‘cap’ on damages of €450,000 for a catastrophic injury (referenced in the Court of Appeal decision inShannon v. O’Sullivan[2016] IECA 93), that ‘cap’ only refers to general damages for pain and suffering. The High Court will in many cases end up awarding many multiples of that figure in damages in catastrophic personal injury cases. However, it is important to bear in mind that the vast majority of these large awards are made up of special damages, which are usually the out of pocket expenses incurred or to be incurred in the future by an injured plaintiff e.g. full time care for life and/or loss of earnings over a lifetime, so in a multi-million euro award of general and special damages, it is usually the case that a maximum of €450,000 of that award will relate to general damages and the remainder of the overall award will be made up of damages in respect of expenses and loss of earnings over the life-time of the injured party.
36. The key aim of this judgment is to outline the precise legal principles, set down by the Court of Appeal and the Supreme Court, which bind the High Court in its calculation of the amount of general damages to be paid to compensate a garda for the injury suffered in the exercise of his or her duties, and thus no reference will be made to special damages in this judgment.
The difficulty of putting a value on a personal injury
37. The very notion of putting a value on the pain and suffering that a person endures as a result of sustaining a personal injury is clearly not a straight forward matter. As noted by the Court of Appeal in Nolan v. Wirenski [2016] IECA 56 at para 26:
“an award of damages is a very imperfect and inadequate mode of compensation and is a poor substitute for the change in circumstances brought about”.
38. Indeed, it is arguable that it is a technical impossibility to value any personal injury, but particularly a serious or life changing injury. The reason for this is because no right thinking person would willingly sustain such life changing injury in return for a sum of money.
39. On one level this means that it is arguable that the amount of damages a person should receive for a serious or life changing injury is limitless since no amount of money can compensate someone for a state of being which he or she would never want. While theoretically this argument could be made, it is clear that the approach of the Irish courts is that there is a limit to the amount of damages for pain and suffering for personal injuries which may be awarded by the Irish courts. In the Supreme Court case ofSinnott v. Quinnsworth[1984] ILRM 523 at 532 O’Higgins C.J. stated:
“a limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which exist in our society.”
40. It is for this reason that there is a ‘cap’ on the amount awarded for general damages (but no cap on the amount of special damages which can be awarded), and this Court must assess in each how much general damages should be paid for a particular personal injury in the knowledge that there is a cap on the maximum that can be awarded, which is considered in more detail hereinafter and as noted below is generally set at €450,000 .
Principles applicable to putting a monetary figure on pain and suffering
41. The following principles are relevant to the Court’s assessment of damages for personal injuries in Garda Compensation cases (and for the reasons stated below, also for all personal injury claims).
(I) No difference between an injured garda and any other injured plaintiff
42. The fact that the personal injury is suffered by a garda in the course of duties has no impact on the level of general damages awarded to him or her for pain and suffering. The level of damages appropriate to a particular injury is awarded to the garda irrespective of the circumstances (in the sense that it is a garda, rather than a civilian, who was injured) of the injury. Of course the circumstances of the incident can affect the injury caused e.g. extreme circumstances might lead to post traumatic stress. However, when the Court is assessing damages for an injury, say a broken arm, there is no divergence in the principles to be applied whether one is dealing with a garda injured in the course of duty or a civilian.
43. The same question arises in each case, namely, how much general damages should be paid to compensate the plaintiff for the pain and suffering of the injury in question. In this Court’s view, there could be no basis for treating a garda differently from any other plaintiff in assessing the damages to be awarded for a personal injury. InMurphy v. Minister for Public Expenditure and Reform[2015] IEHC 868 at para 31, Barton J. stated:
“In substance, however, the principles to be applied and the object to be achieved in the assessment of a compensatory award under the [Garda Compensation Act], as with an award of compensatory damages [from a wrongdoer to a plaintiff] are the same but are to be distinguished from an award of aggravated or exemplary damages.”
44. Similarly inCarey v. Minister for Finance[2010] IEHC 247 at para 4.23, Irvine J. held that:
“There is nothing in the [Garda Compensation Acts] or in the provisions of s. 10 [of the 1941 Act] which suggest that the court should not approach compensation in the same manner as it would approach the issue of damages in a personal injuries claim at common law.”
45. For this reason, the principles which follow which the Court of Appeal and Supreme Court have determined apply to all personal injury cases must apply to Garda Compensation cases in this Court’s view.
(II) Bravery of an injured garda is not a factor in assessing general damages
46. Some counsel have suggested that this Court should take account of the circumstances in which the injury was incurred, particularly as in many cases before this Court, injured gardaà have shown considerable bravery. It may well be that there are other ways in which the bravery of gardaà are recognised, but there is no power vested in this Court to award sayex gratiasums. The role of this Court, whether dealing with a civilian or a garda that is injured, is simply to assess general damages for a particular injury. Whether the injury was incurred as a result of intense bravery, or misfortune which arose out of malicious incident, is irrelevant to the assessment of the level of compensation for pain and suffering for the injured garda. This Court does not have jurisdiction to award damages for bravery or some other form of compensation or financial recognition for the undoubted bravery shown by members of the gardaÃ.
47. As noted by Irvine J. inCarey v. Minister for Finance[2010] IEHC 247 at para 4.25:
“I see no reason to depart from the approach that would be adopted by the court in assessing these claims for damages at common law and there is nothing in the [Garda Compensation Acts] which would encourage me to conclude that a claimant under the [Garda Compensation Acts] should receive a greater amount for his injuries than his counterpart maintaining an action for negligence at common law.”
(III) Damages are not less because injury expected because of nature of job
48. The corollary of the principle, that this Court does not have jurisdiction to reward bravery, is equally applicable. Thus, just because a garda is involved in an occupation where there is a high degree of physicality and exposure to the risk of bodily harm and where bravery may be expected, does not mean that when a garda is injured in the course of his duties, he should get less than a civilian who suffers similar personal injuries.
But no compensation for injuries determined by Minister to be minor
49. However, in one respect, a garda is treated differently from a civilian regarding personal injuries, namely in relation to minor injuries. That is because there is implicit recognition in the Garda Compensation Acts that the physical nature of the job means that minor injuries for gardaà are expected from time to time, since under the Garda Compensation Act that there is no compensation for minor injuries (save for a payment of €127 referenced below). This principle is apparent from s. 6(1) of the 1941 Act, since under that section the Minister for Justice and Equality is entitled to refuse an application for compensation where the injury is ‘of a minor character’ and where it was not sustained in the course of a duty involving special risk. Such injuries therefore are not subject to compensation awards by the High Court and inMerrigan v. Minister for Justice[1998] IEHC 11 at p 10], Geoghegan J. gave an example of such a minor injury, when he stated:
“I think that the expression “of a minor character” implies a consideration of the nature of the injury rather than the amount of the compensation which would be paid for it. What the legislature intended, in my view was that if, for example, a member of the force sustained an injury of a kind which would otherwise be compensatable but which cleared up after say two months with no ill effects such an injury would be considered to be of a minor character. I give that as a n example of such an injury rather than definition which would be quite impossible.”
50. Therefore, provided that the injury is not determined by the Minister for Justice and Equality to be something which would clear up after say two months with no ill effects, then the garda is entitled to the same damages as he or she would get if he suffered a personal injury as a civilian. The fact that injuries are to be expected in the Garda SÃochána, because of the nature of the duties, has no effect on the entitlement to compensation (save, as noted, in respect of minor injuries) or on the level of compensation.
51. However, there is a provision under s. 6(1)(b)(ii) of the 1941 Act for the Minister for Justice and Equality to make a payment of up to £100/€127 in respect of minor injuries which were incurred in the course of duty involving special risk, where the Minister regards that amount as adequate compensation. It is clear to this Court that this amount of money, which was fixed in 1941, is hopelessly out of date and should be revised.
Once Minster determines that not minor injury, Court must make award
52. In one other respect personal injuries to gardaà are different, since it is clear from the judgment of Irvine J. in Carey v. Minister for Finance that once the Minister for Justice and Equality is of the opinion that the injuries are not of a minor character and so authorised an application for compensation by a garda to the High Court under s. 6(1) of the 1941 Act, and the High Court is satisfied that the injuries were maliciously inflicted in the performance of the garda’s duties (or otherwise in accordance with the 1941 Act), then the High Court must award compensation. Unlike in personal injury cases involving civilians, the High Court cannot refuse to award compensation even if it believes that the injury to the garda is minor. At para 4.22, Irvine J. states:
“I have concluded that the court is at large as to the damages it may award. However, I accept the plaintiffs submissions that where liability and causation are established the court must award compensation irrespective of how modest it concludes the member’s injuries are.”
(IV) Book of Quantum does not have to be considered in garda claims
53. It is clear from the judgment of Barton J. inMurphy v. Minister for Public Expenditure and Reform[2015] IEHC 868 at para. 36 that in dealing with compensation claims under the Garda Compensation Acts that the High Court is not obliged to have regard to the Book of Quantum:
“For the sake of completeness it is considered appropriate to refer to the provisions of s. 22 of the Civil Liability in Courts Act 2004 (the Act of 2004) which imposes on the Court a requirement, when assessing damages in a personal injuries action, to have regard to the Book of Quantum. Although reference to the book is sometimes made by counsel in the course of submissions on the hearing of the application under the Acts, the Court is not bound to have regard to it since, by virtue of s. 2(1) of the Act of 2004, an application for compensation under the [Garda Compensation Acts] and certain actions for damages are expressly excluded from its scope. However, there is no prohibition on the Court from doing so.”
54. It does seem curious that a personal injury to a garda would not be treated the same as a personal injury to a civilian from the perspective of reference being made to the Book of Quantum. However, as noted by Barton J., there is no obligation upon the High Court to have regard to the Book of Quantum in Garda Compensation cases, although it may decide to do so.
55. In any case, as noted hereunder, 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 (dealt with below), since the Book of Quantum isnot bindingon the courts, while the principles laid down by the Court of Appeal and the Supreme Courtare binding.
(V) ‘Not minor’ does not imply not ‘moderate’ in Book of Quantum
56. While there is no obligation upon this Court to have regard to the Book of Quantum, it may do so. In this regard, as previously noted, under s. 6 of the 1941 Act, the Minister must determine that the injury to the garda is not minor in character before the injury is assessed for compensation by the High Court. In this regard, it is relevant to note that the Book of Quantum sets out four categories of personal injuries and the respective awards made in those categories. The first of the four categories of injuries in the Book of Quantum is the lowest category and it uses the expression ‘minor’ to describe such injuries for the purposes of damages, while the other three categories are ‘moderate’, ‘moderately severe’ and ‘severe and permanent conditions’.
57. It is clear to this Court that just because the Minister for Justice and Equality determines that an injury is not ‘minor’ pursuant to s. 6(1)(b)(i) of the 1941 Act does not mean that this injury falls outside the ‘minor’ category of injuries for the purposes of the Book of Quantum, since if this were the case, it would mean that the Minister for Justice and Equality would have a role in determining the level of compensation payable to an injured garda, which is a judicial function under the Garda Compensation Acts and not a function of the Minister.
58. In other words, simply because the Minister for Justice and Equality did not regard the injury to be so minor as tonotmerit compensation, does not mean that it is automatically a ‘moderate’ or worse injury for the purposes of the Book of Quantum. This is because the expression ‘minor’ in the Garda Compensation Acts is used as a means of describing an injury that is not sufficiently serious to merit an application to the High Court for compensation. It is not a term of art. The expression ‘minor’ under the Book of Quantum has a completely different meaning, since the Book of Quantum deals with all injuries that are pursued by civilians for personal injuries and where there is not a threshold for those litigants instituting proceedings (unlike gardaÃ, who are seeking compensation under the Garda Compensation Acts). The expression ‘minor’ in the Book of Quantum simply means the lowest band of injuries, for the purposes of damages, where there are four categories, being ‘minor’, ‘moderate’, ‘moderately severe’ and ‘severe and permanent conditions’. It does not mean that it is an injury which, if it happened to a garda, would not be approved for compensation by the Minister for Justice and Equality.
59. Indeed, a practical example of this issue is the fact that in this case, Garda Kampff suffered soft tissue injuries to his hand and this Court regards that injury as minor for the purposes of the Book of Quantum, notwithstanding that the Minister regards it as notsufficiently minor(to use this Court’s expression) for the purposes of s. 6(1)(b)(i) of the Garda Compensation Acts to deprive the garda of any compensation. Indeed, as previously noted, it is clear to this Court that even if it believed that Garda Kampff’s hand injury was sufficiently minor to not justify compensation, this Court is nonetheless obliged to award him compensation, since this Court has no jurisdiction to reverse the decision of the Minister for Justice and Equality that the injury is not an injury of a minor character, as is clear from the judgment of Carney J. inMcGee v. Minister for Finance[1996] 3 IR 234, since as noted in that judgment, s. 6(3) of the 1941 Act makes clear that the Minister’s decision is final and conclusive.
60. All of this means that because a garda has got approval from the Minister that his or her injury is not ‘minor’ for the purposes of the Garda Compensation Acts, does not mean that it will not fall into the minor category of injuries for the purposes of assessing damages in the Book of Quantum, since there is no correlation between the two concepts of minor should the High Court decide to refer to the Book of Quantum. However, this raises the status of the Book of Quantum in relation to Garda Compensation claims.
(VI) Resources of the defendant are irrelevant to the calculation of damages
61. Although perhaps self-evident, it bears stating that the fact that in some personal injury cases the defendant is the State with considerable resources or indeed a wealthy company, if one was dealing with a civilian personal injury, while in other cases the defendant may be a person of limited means, has no impact on the level of damages awarded to an injured plaintiff.
62. The principles which apply to the assessment of damages apply equally to all defendants irrespective of means. Thus, the fact that the payer of the compensation in Garda Compensation cases is the State, which has considerable but not unlimited resources has no bearing on this Court’s assessment of the amount of damages which should be paid to an injured garda.
(VII) Existence of insurance is irrelevant to the calculation of damages
63. Although not directly relevant to Garda Compensation cases, it is also the case that the fact that a defendant does or does not have insurance should have no impact upon the level of damages awarded to a plaintiff. The question for the Court is ‘what is the correct amount of compensation for the injured plaintiff?’ The fact that the defendant is not personally paying the award, but an insurance company is paying the award, has no impact upon the level of the award. While courts will often be dealing with insurance companies who will have ample resources, a defendant might just as easily have no insurance and for this reason the level of award cannot be based on the assumption that all defendants have insurance, as in some instances defendants will have to pay personal injury awards out of their own resources.
(VIII) High Court must apply recalibration of damages by Court of Appeal
64. The High Court is bound by the principles set down in recent years by the Court of Appeal regarding the level of general damages to be awarded for personal injuries. InSeligman v. Kuiatkowski[2018] IEHC 102 at para. 34, Barr J. noted that these Court of Appeal decisions have led to a recalibration of the level of damages to be awarded in personal injury cases:
“In reaching an assessment of the appropriate level of general damages in this case, the court has been greatly assisted by the guidelines set down by the Court of Appeal inNolan v. Wirenski[2016] IECA 56, andShannon v. O’Sullivan[2016] IECA 93 and in particular to the criteria set down by Irvine J. at paras. 43 and 44 thereof. The court has also had regard to the dicta of the Court of Appeal in the case ofFogarty v. Cox[2017] IECA 309. In the light of these judgments, this Court has had to somewhat recalibrate its approach to the assessment of general damages in personal injury cases.”
Similar statements have been made by the High Court in other recent cases, seeWilders v. MIBI[2018] IEHC 126 at para 15;Flannery v. HSE[2018] IEHC 127 at para 35;Whelan v. Castle Leslie[2018] IEHC 125 at para 22.
65. Since the Court of Appeal judgments inNolan v. Wirenski, Shannon v. O’SullivanandFogarty v. Coxinvolved a reduction by the Court of Appeal of the damages awarded by the High Court by 45%, 50% and 45% respectively, it seems clear that the recalibration of the damages to which Barr J. refers is a downwards recalibration of the awards, which in those cases approximated to a halving of the awards.
Downward recalibration will apply to Book of Quantum if relied upon
66. While this Court is bound to follow the principles for assessing damages and the level of awards made by the Court of Appeal in all personal injury cases (but not Garda Compensation cases), under s. 22 of the Civil Liability Act, 2004, the obligation on the High Court in civilian personal injury cases is to ‘have regard’to the Book of Quantum. The distinction between ‘having regard’ to the Book of Quantum and being bound to follow the Court of Appeal is particularly relevant in light of Barr J.’s conclusion that there has been a downwards recalibration of damages in the Court of Appeal from 2016 onwards.
67. Since the Book of Quantum was published in 2016 and deals with awards and assessments made in and prior to 2016, this means that in having regard to the Book of Quantum, this Court must also take account of the very significant downwards recalibration of personal injury awards by the Court of Appeal to which Barr J. refers, which has taken place since the publication of the Book of Quantum. As this Court is obliged simply to have regard to the Book of Quantum in civilian personal injury cases, it is clear that it is not obliged to expressly follow a particular band or category of monetary figures set out therein.
68. However, if after having regard to the Book of Quantum, this Court decides to place reliance on a particular figure therein, it seems clear that it should only do so after consideration has been given to whether the figure should be recalibrated downwards in light of the Court of Appeal decisions in 2016 and 2017 to reduce High Court damages awards, in some cases by 45% – 50%. This is because the Book of Quantum is a catalogue of personal injury awards from,inter alia, the High Court in 2013 and 2014 (see page 5 of the Book of Quantum).
Other principles High Court is obliged to apply to calculation of damages
69. In addition to the downward recalibration of damages, this Court must also follow the following principles set down by the Court of Appeal inNolan v. Wirenski[2016] IECA 56 at para 31, for the assessment of damages in a personal injuries case:
“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.”
70. Thus, in assessing damages for injured gardaà (or indeed any other injured plaintiffs), this Court is obliged to be:
•fair to the injured party and the defendant (in this case the State);
• proportionate within the scheme of awards for personal injury damages;
• objectively reasonable in light of the common good and social conditions.
(IX) The level of the award must be fair to both parties
71. The first principle, which this Court is obliged by the Court of Appeal in theWirenskicase to apply, is that the level of the award must be fair to the plaintiff (the garda) and the defendant (the State). Fairness to the garda is a straightforward concept in that the amount of money must be sufficient to constitute a fair amount of compensation for the injury suffered. When the defendant is the State, this Court interprets the concept of the amount of the award being ‘fair to the State’ as meaning that the amount of money which the State is required to pay should be fair to the person paying or funding it, and in Garda Compensation cases it is the taxpayer who is funding the compensation. Being fair to State means ensuring that awards paid by State are not such that, in the words of McMenamin J (see para [73] below) they do not lead to an increase in tax or a reduction in social services. As previously noted, the fact that the State has considerable resources does not, in this Court’s view, mean that it should be treated any differently to any other defendant in a personal injuries action.
THE PROPORTIONATE PRINCIPLE
(X) Award to be proportionate to the scheme of awards and ‘cap’ on damages
72. The second principle, which this Court is obliged by the Court of Appeal in theWirenskicase to apply, is that the level of the award must be proportionate to the general scheme of awards for personal injuries, including the ‘cap’ on damages (noted below to be €450,000) which this Court refers to as the ‘proportionate principle’.
73. This principle was also recognised by MacMenamin J. in the Supreme Court case ofKearney v. McQuillan[2012] IESC 43 at para 27, where he explains the rationale for, inter alia, ensuring that damages awards are proportionate to the scheme of awards for other personal injuries. As previously noted, the general scheme of awards for personal injuries has a ‘cap’ on the amount of damages that can be awarded for general damages/pain and suffering. The rationale for ensuring that awards are proportionate to the capped scheme, he concludes, includes increased insurance costs (relevant to civilian personal injury claims which are paid by insurance companies) and increased taxation and reduced social services (relevant to Garda Compensation claims which are paid out by the general exchequer):
“It should be logically situated within the legal scheme of awards made for other personal injuries… It is important in this context to recollect, particularly at this time, those criteria of social conditions and common good. The resources of society are finite. Each award of damages for personal injuries in the courts may be reflected in increased insurance costs, taxation, or, perhaps a reduction in some social services.”
There are clear public policy reasons therefore why damages for pain and suffering in personal injury cases should be proportionate to other awards and the ‘cap’ on damages, including the effect on the common good and in particular insurance costs for society as a whole if this was not to be the case. In the context of Garda Compensation cases, while there might not be an increase in insurance costs, if awards under the scheme were not proportionate to other awards and the cap, there would be less money available for the provision of other State funded services to the detriment of the common good.
The ‘cap’ on damages for pain and suffering is €450,000
74. The fact that there is a ‘cap’ on damages was first recognised by the Supreme Court inSinnott v. Quinnsworth[1984] ILRM 523, when the ‘cap’ was at that stage set at £150,000. The current generally accepted ‘cap’ on general damages has been noted by the Court of Appeal as being in or around €450,000. InShannon v. O’Sullivan[2016] IECA 93 at para 36, the Court of Appeal stated:
“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.” (per Irvine J)
75. As €450,000 is therefore the generally accepted ‘cap’ on general damages for the worst possible injury, it follows from the foregoing judgment of the Court of Appeal 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. This principle that there needs to be proportionality in general damages between different categories of personal injuries (the ‘proportionate principle’) was expanded upon by the Court of Appeal inMurphy v. County Galway Motor Club[2016] IECA 106 and inPayne v. Nugent[2015] IECA 268.
The mechanics of ensuring that awards are proportionate to the ‘cap’
76. InCounty Galway Motor Clubcase at para. 19, the Court of Appeal focused in on how a court was to do the exercise of ensuring that the proposed award was proportionate to the general scheme of awards and in particular to the ‘cap’ on general damages of €450,000:
“To achieve proportionality the judge ought to have regard to the entire spectrum of personal injury claims which includes everything from the most modest type of injury, such as soft tissue injuries, to those which can only be described as extreme or catastrophic and which tend to attract damages of in or about €450,000. It is helpful for a trial judge to endeavour to locate where, within that spectrum, the injuries of any particular plaintiff would appear to lie: see, e.g.,Nolan .v. Wirenski, judgment of Irvine J. 25th February 2015. After all, damages are only fair and just if they are proportionate, not only to the injury sustained by an individual plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. There must be a rational relationship between awards in personal injury cases. (per Irvine J.)
In addition, the Court of Appeal in an earlier case, thePaynecase, gave a more concrete example of how to apply the proportionate principle in each case at para. 17:
“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.” (per Irvine J)
77. ThePaynecase concerned relatively modest injuries since in that case the injury was a whiplash type injury, where the Court of Appeal reduced the High Court award of damages by 45%. The Court of Appeal explained in that case that the reason the courts needed to apply the ‘proportionate principle’ to personal injuries was in order to avoid a real danger of injustice and unfairness for those who suffer serious injuries, such as a loss of a limb, but which are considerably short of catastrophic injuries, such as quadriplegia.
Four types of injuries to be considered when applying proportionate principle
78. The logic of the Court of Appeal’s approach seems to this Court to be that there are four types of injuries:
(i) modest injuries (of which a soft tissue injury is an example),
(ii) middle ranking injuries,
(iii) serious injuries (such as a loss of a limb) and
(iv) catastrophic injuries (such as quadriplegia).
79. Using this categories of personal injuries to apply the proportionate principle, it would be proportionate (relative to the €450,000 ‘cap’ for catastrophic injuries) for a person who has suffered a serious injury e.g. loss of a limb, to receive general damages for pain and suffering (in addition to the amount of special damages to which he is entitled) which are significantly less than €450,000, in order to reflect the considerable difference between somebody who loses a limb and a catastrophically injured plaintiff. In applying the proportionate principle, the High Court must avoid what the Court of Appeal termed the ‘concertina’ effect, particularly in relation to modest and middle ranking injuries.
High Court must avoid ‘concertina effect’ in assessing damages
80. The real focus of the Court of Appeal in the Payne case was on modest injuries and middle ranking injuries which fall well short of a serious injury such as the loss of a limb. Thankfully, the bulk of the cases before this Court in Garda Compensation Act cases are modest and middle ranking injuries.
81. The Court of Appeal makes it clear that the High Court must, when awarding damages for modest injuries and middle ranking injuries, make sure that they are proportionate to serious injury awards, which themselves must be proportionate to awards for catastrophic injuries. Otherwise, if awards for modest injuries and middle ranking injuries are within, or close to, the range for serious injuries, the Court of Appeal has pointed out that this would amount to ‘an injustice and unfairness’. It seems clear that the injustice and unfairness to which the Court of Appeal is referring is one which is visited upon the person with a serious injury, such as the loss of a limb, who discovers that someone who has a modest injury or a middle ranking injury is awarded damages for pain and suffering which are close to the damages he has received.
82. When applying the’proportionate principle’ to modest and middle ranking injuries in Garda Compensation cases, this Court is obliged by the Court of Appeal in thePayne caseto avoid the’concertina type effect’, whereby high awards for modest injuries drives up awards payable for middle ranking injuries. In that case, which involved soft tissue injury to the shoulder, neck and back of the plaintiff, the Court of Appeal explained this rationale at para. 18 as follows:
“For my part there is a real danger of injustice and unfairness being visited upon many of those who come to litigation seeking compensation if those who suffer modest injuries of the nature described in these proceedings are to receive damages of the nature awarded by the trial judge in this case. If modest injuries of this type are to attract damages of €65,000 the effect of such an approach must be to drive up the awards payable to those who suffer more significant or what I would describe as middle ranking personal injuries such that a concertina type effect is created at the upper end of the compensation scale. So for example the award of general damages to the person who loses a limb becomes only modestly different to the award made to the quadriplegic or the individual who suffers significant brain damage and in my view that simply cannot be just or fair” (per Irvine J.)
83. Thus, in order to avoid an injustice being visited upon those who have suffered more serious personal injuries than those being assessed, it is clear that this Court must ensure that there is a significant difference between awards for general damages (i.e. for pain and suffering) for modest personal injuries (whether gardaà or civilians) and awards for middle ranking personal injuries. In turn, this Court must also ensure that there is a significant difference between awards for middle ranking personal injuries and serious personal injuries. When dealing with awards for serious personal injuries, this Court must ensure that there is a significant difference between those awards and awards for catastrophic injuries. Failing to do so, risks an injustice on other more seriously injured plaintiffs/applicants.
The imaginary scale to use when applying the proportionate principle
84. At para. 17 of thePaynecase, the Court of Appeal explained how a court could apply the proportionate principle in practice in the following terms (at that time, in the context of a ‘cap’ of €400,000):
“The most catastrophically injured members of society who suffer great pain and distress and who may never work or enjoy 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 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 the imaginary scale of damages for personal injuries which ends at Euro 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.” (per Irvine J.)
Thus, in applying the proportionate principle, the High Court places the injured plaintiff (or injured applicant in a Garda Compensation case) at the appropriate spot on an imaginary scale which ends at the ‘cap’ for catastrophic injuries which is currently at €450,000. In doing so, this Court must ask where along that scale is a proportionate point for the injury to be placed. When dealing with modest and middle ranking injuries, one asks the same question whilst bearing in mind where a serious injury, such as a loss of a limb, might be on that scale.
Using the proportionate principle in this case
85. Thus, applying this principle, as this Court must do in every case, a key question for this Court (and for practitioners when advising their clients on how damages are assessed by this Court), is to ask (taking the example of a soft tissue injury to a hand, since this is the injury suffered by the applicant in the case before this Court) the following question, which uses percentages, rather than points on the scale:
“whether the pain and suffering resulting from a soft tissue hand injury is say 10% of the pain and suffering compensation for a catastrophic injury such as quadriplegia (€45,000) or say 5% (€22,500) or say 1% (€4,500)?”
While it may seem somewhat incongruous or even callous to be doing an exercise such as this in the specific circumstances of a person’s personal injury, this cannot be avoided because the task which the Court must do is, to the quote the Court of Appeal inNolan v. Wirenskiat para. 26:
“a very imperfect and inadequate mode of compensation and is a poor substitute for the change in circumstances brought about”.
Unfortunately, if one is going to put a monetary value on a personal injury, which this Court must do, there is no better system for calculating damages for personal injuries.
THE AVERAGE EARNINGS PRINCIPLE
(X) Awards to be reasonable in light of common good and social conditions
86. The third and final principle, which the High Court is obliged by the Court of Appeal decision inWirenskito apply, is whether the proposed compensation is objectively reasonable in light of the common good and social conditions.
87. The perception of what is in the common good will vary depending on the particular circumstances of a personal injuries case. Although it is unlikely to be a regular occurrence, it could well be necessary, in the particular circumstances of a case, for reference to be made to the common good in assessing damages. For example, in rare circumstances, it is possible that the common good might necessitate an award of exemplary damages to indicate the court’s disapproval of a party’s actions.
88. The focus of this judgment is however on the relevance of ‘social conditions’ to the level of a general damages award, which in this Court’s view will apply in every case where an award is made for pain and suffering. This is because the term ‘social conditions’ is, in this Court’s view, a much more specific term than ‘common good’ and accordingly capable of being of concrete assistance in assessing how much compensation should be paid in respect of a particular personal injury. This arises from the fact that the term’social conditions’ seems to refer, inter alia, to the average earnings of persons in the State. In interpreting’social conditions’ in this manner, this Court relies on the judgment of O’Higgins C.J. inSinnott v. Quinnsworth[1984] 523. At p. 532 of that judgment, he stated that in determining whether a figure for general damages was fair and reasonable:
“some regard should be had to the ordinary living standards in the country, to the general level of incomes and to the things upon which the plaintiff might reasonably be expected to spend money”. [emphasis added]
In reaching its conclusion that this Court is obliged to have regard to the general level of incomes in assessing damages for pain and suffering, this Court also relies on the High Court decision inYun v. MIBI[2009] IEHC 318.
89. In that case, in determining the appropriate level of general damages for personal injuries, Quirke J. makes it clear that account must be taken of ‘economic realities’ and in particular to’individual disposable incomes’ which he regards as a relevant factor in the measurement of’contemporary standards’ and in particular current ‘social conditions’ (which is the same expression used by the Court of Appeal in theWirenskicase). He clarifies why disposable incomes have no relevance to pecuniary loss or special damages, but are relevant to general damages or non-pecuniary losses, at p. 18 of his judgment:
“However, inHeil v. Rankin[2001] QB 272 at p. 297, the Court of Appeal (Lord Woolf M.R.) pointed out that:
“A distinction exists… between the task of the court when determining the level of pecuniary loss and when determining the level of non-pecuniary loss. In the case of pecuniary loss, and issues such as that which engaged the House of Lords in Wells v. Wells, the court is only required to make the correct calculation. Economic consequences are then irrelevant. When the question is the level of damages for non-pecuniary loss the court is engaged in a different exercise. As we have said, it is concerned with determining what is the fair, reasonable and just equivalent in monetary terms of an injury and the resultant PSLA. The decision has to be taken against the background of the society in which the court makes the award.”
Those observations and the distinction identified by Lord Woolf between pecuniary loss (compensated by special damages) and non-pecuniary loss (compensated by general damages) are quite consistent with the principles and further distinctions identified by the Supreme Court inSinnott v. QuinnsworthandM.N. v. S.M.
Hence, the need for the courts to hear evidence of and to consider “contemporary standards and money values” when assessing and calculating the limit or “cap” to be imposed on awards for general damages from time to time.
It was confirmed in evidence that this country is presently enduring a period of unprecedented recession. There has been a significant drop in individual disposable income and it is anticipated that this will become more acute during the next several years. Wealth and living standards have declined appreciably and economic growth has been replaced with contraction.
Those factors are relevant to the measurement of “contemporary standards” and current “social conditions” within this country and it can be validly argued that, in general, awards of general damages should reflect such economic realities.”
90. In that case ofYun v. MIBI, which considered the rise in the ‘cap’ on general damages since its introduction in 1984 inSinnott v. Quinnsworthto 2007 (whenYun v. MIBIwas heard), Quirke J. relied on the rate of increase in the’average industrial earnings’ during that period as an appropriate rate to apply to the cap on damages.
91. Based on the foregoing caselaw, it seems clear therefore that this Court must have regard to the general levels of income when assessing how much damages to award for pain and suffering in personal injury cases.
92. Furthermore, this Court believes that the general level of incomes or average industrial earnings (which this court refers to as the ‘average earnings principle’) is a very useful tool, in conjunction with the ‘proportionate principle’, in calculating an appropriate figure for compensation, particularly when one is dealing with modest or middle ranking injuries, which in severity are a long way from catastrophic injuries, for which €450,000 is the ‘cap’ on general damages. This is because for very minor injuries in particular, it may be difficult to even contemplate that the injury is any way referable or even on the same scale as quadriplegia, e.g. a wound which required stitches but which fully healed without visible scarring, which is the type of personal injury case sometimes heard in the High Court under the Garda Compensation Act. For such injuries a touchstone such as the average earnings in the State can, in this Court’s view, help with the assessment of damages in conjunction with the proportionate principle.
93. The touchstone amount is not what an unemployed person might get per annum on job seeker’s allowance (circa €10,000 per annum) or what a pensioner receives (circa €13,000). On the other hand the touchstone amount is not what a successful lawyer or other successful professional or business person earns per annum, which is likely to be many multiples of these amounts. Rather the touchstone is the average earnings of everyone in the State from those on social welfare up to and including those on the highest salaries. The logic of this approach seems to this Court to be that pain and suffering does not discriminate between the wealth of victims and if one is unemployed or wealthy, the calculation of pain and suffering should be based on the average. In this instance, it means that the average earnings of a person in Ireland is to be used as a touchstone in deciding on the appropriate level of damages for pain and suffering for personal injuries.
What are average earnings in Ireland?
94. Since the purpose of this judgment is to help make concrete the assessment of damages in individual cases for gardaà and their lawyers who are due to appear in Court, it is important to have a precise figure for the general level of incomes, in much the same way as one has regard to a concrete figure for the ‘cap’ on damages, which is currently a figure of €450,000, although previously it was £150,000 and increased over the years (as have average earnings) For this purpose, this Court would rely on the figures published by the Central Statistics Office (“CSO”), and in particular the annual release of the’average annual earnings’ in the State, although the Court is open to hearing evidence regarding either a different source for calculating average earnings or indeed future changes to the CSO figure. The most recent figure released by the CSO for the average annual earnings of a person working full-time in the State is €45,611 (CSO Statistical Release, 29th June, 2017), which approximates to €3,800 a month. Basing the average annual earnings principle on the CSO figure also has the advantage that, as this figure is revised annually by the CSO, it should reflect contemporary ‘social conditions’ (to use the term utilised by the Court of Appeal inWirenski) and thus the true value of an award at a given time.
95. Accordingly, it is to this figure of €45,611 per annum, which this Court will refer as the ‘average earnings’ or the ‘general level of incomes’ (to use the expression used by O’Higgins C.J.), in order to determine what is a fair and reasonable amount of compensation in a particular case, as required by the Supreme Court and the Court of Appeal. Since one is dealing with abstract notions of valuing personal injuries, one concrete way (but by no means the only one) to seek to use the average earnings to calculate a figure for compensation is to ask the following question:
‘assuming that a defendant in a personal injuries action earns the average earnings of €45,611 per annum and assuming that he was responsible, by negligence or otherwise for the injury to the plaintiff:
what period of time would it be reasonable to ‘notionally’ require that defendant to work full time and hand over his entire salary to the injured plaintiff, in order to compensate the plaintiff for the defendant’s negligence which caused the injury?’
96. Although the foregoing question is expressed in the manner of a defendant being at fault and causing the injury to the plaintiff, it is simply a means of notionally valuing a personal injury. It follows that this question is equally relevant to a Garda Compensation Acts case, where the defendant is the Minister for Public Expenditure and Reform even though invariably the Minister is not at fault, since the injury is incurred as a result of an interaction between a garda and a member of the public.
97. It is clear from theWirenskicase that the relevance of ‘social conditions’ in the State and in particular the ‘average earnings principle’ is to be used in addition to the ‘proportionate principle’ (i.e. proportionate to the general scheme of awards and the ‘cap’ of €450,000), when calculating general damages. Thus, this Court must apply both principles as well as the first principle that the final award be fair to the injured party and the payer of the compensation. One way to applyWirenskito a particular case is:
•First ask, bearing in mind that it takes the average person a year to earn €45,611 (and a month to earn €3,800), is one month/one year/three years’ earnings etc (as the case may be) fair and reasonable compensation for the injury suffered by the plaintiff?
• Second ask, is that resulting figure, say if it is €45,000 or €22,500 or €4,500 (to take examples) a proportionate award, bearing in mind that it is 10% or 5% or 1% (as the case may be) of the ‘cap’ of €450,000 of general damages that is awarded for pain and suffering for a catastrophic injury such as quadriplegia.
98. Thus, in this Court, applicants and their lawyers who wish to consider or make submissions on the level of damages that are appropriate for pain and suffering could pose the foregoing two questions regarding the figure that they believe is appropriate.
Advantage of average earnings principle for ordinary citizens
99. It remains to be observed that the obligation upon this Court to apply the average earnings principle to the calculation of damages for pain and suffering makes, in this Court’s view, the whole process of calculating damages somewhat accessible to ordinary citizens who have suffered personal injuries. This is because it may be possible that relating the ‘value’ of their pain and suffering to how long an average person has to work to earn a certain figure, may make for them the whole process of calculating ‘how much an injury is worth’ slightly less nebulous, particularly since it does not involve any difficult legal concepts. Indeed it is arguable that ordinary citizens would be as well positioned as a judge to determine what would be a reasonable amount for a personal injury when this touchstone is explicitly relied upon. In addition, if ordinary citizens appreciate that courts do not pick awards out of the sky, but that there is logical basis for them, it may make the whole process less mysterious for injured plaintiffs and perhaps make it easier for them to decide whether a settlement offer is reasonable compensation for their injury.
(XI) Court must apply scepticism to claims seeking damages
100. The final principle regarding the calculation of damages to which this Court will refer arose in the recent Supreme Court case ofRosbeg Partners v. LK Shields[2018] IESC 23. Although the case concerned the assessment of damages in a professional negligence action, it is also of relevance, in this Court’s view, to the assessment of general damages in a personal injuries case.
101. In that case, O’Donnell J. (at para. 22) made the following comments regarding claims for damage in the context of a damages award by the High Court, which the Supreme Court reduced by over 50%:
“It is important to remind ourselves that courts should approach claims such as this not simply on the basis of the genuineness or plausibility of the witnesses, but by applying common sense and some degree of scepticism.
[…]
This is not a reflection of the honesty of witnesses, rather it is human nature. Persons involved in routine car accidents will regularly tend to recall events in a way which discounts or avoids their own culpability. It is not unusual to give ourselves the benefit of the doubt, in any field, and all the more so when the stakes are high…
In many cases courts must sift through differing accounts at some remove in time from the facts, and do their best to allow for human error and the tendency for memories and consequently accounts to become subtly and unwittingly adjusted under the focus of the case, and in light of the consequences of failure…
Courts must, and do, try to bring an appropriate scepticism therefore to their task at each stage of litigation.”
102. As the Supreme Court’s comments regarding the need for the courts to be sceptical and apply common sense are founded in the role of human nature in claims for damages, and human nature is as applicable to personal injury claims as it is to professional negligence claims, there is no reason why the subjecting of the claim to scepticism would not be as applicable to personal injury claims for damages, as they are to professional negligence claims for damages. On this basis, this Court concludes that the courts are obliged to apply a degree of scepticism to claims for damages by an injured party in a personal injuries action.
103. In this regard, it is clear that the more pain and suffering an injured party claims he/she has suffered, the more likely his/her action for damages will be successful. In light of this Supreme Court decision, the courts need therefore to be conscious of the fact that it is simply human nature for any person who chooses to institute litigation to wish to be successful in that litigation and so avoid the ‘consequences of failure’.
104. It is also clear from this judgment that the more serious the injury then it is likely that the ‘stakes are high’ for the injured party and there may be a greater risk of the injured party giving himself/herself the benefit of the doubt.
105. In a personal injuries case, this means that the court should, in the words of O’Donnell J. approach Garda Kampff’s claims regarding the effect of the injury on him and the pain and suffering he experienced, by applying common sense and a degree of scepticism.
Submissions on quantum
106. Finally, this Court would also make comments on the submissions on quantum, which were made in this case by counsel of Garda Kampff. Unlike counsel in other personal injury cases, counsel in Garda Compensation cases have to date made submissions on the amount of damages which this Court might award. They have done so usually by reference to the Book of Quantum and in some cases to comparator cases, which go back to a time, a considerable number of years ago when a record of awards to gardaà were kept, which comparator cases are of considerably less relevance with each passing year. As a result of reference to previous cases and/or the Book of Quantum, precise amounts or sometimes a minimum and maximum amount are commonly suggested by counsel to the Court.
107. It is not clear to this Court why in civilian personal injury cases submissions are not made, but in cases involving personal injuries to gardaÃ, submissions on quantum are made. In any event, to the extent that practitioners decide to make submissions to this Court, it is clear from the caselaw and the statutory provisions referred to in this judgment that the most important issue is not the Book of Quantum, but the proportionate principle and the average earnings principle to which the Supreme Court and Court of Appeal have made reference. To the extent that reference is made to the Book of Quantum, it seems clear from the recent recognition by the High Court inSeligmanand other cases, of the recalibration of awards of damages in personal injury cases, that reference should be made to the appropriate downward ‘recalibration’ of those amounts in the Book of Quantum, where relevant.
108. It is however clear that if an amount is to be suggested by counsel the appropriate basis for counsel making a submission to this Court, that the award should be €X, is not simply to pick that figure out of thin air but, that it should be that €X is the appropriate figure for pain and suffering for the injury in question because:
Proportionate to ‘cap’ of €450,000?
•€X for pain and suffering for the injury in question is proportionate to the general level of awards and in particular the figure of €450,000 that is payable for pain and suffering for catastrophic injury and
Reasonable in light of how long it takes to earn the average earnings
•Bearing in mind that it takes the average person a year to earn €45,611, €X, which is a factor/multiple of the average earnings, is fair and reasonable compensation for the injury suffered by the plaintiff?
This is because, as noted in this judgment, the proportionate principle and the average earnings principles are the principles which this Court is obliged to use in assessing personal injury damages, as well as the principle that the award is fair to the injured party and the payer of the compensation.
Application of proportionate and average earnings principles to this case
109. It is this Court’s view that the second and third principle set down by the Court of Appeal for assessing damages in the Wirenski case namely the ‘proportionate principle’ and the ‘average earnings principle’ will be of the most concrete assistance on a day to day basis in assessing the appropriate level of compensation for injured gardaÃ. In the case before this Court, the applicant garda sustained a soft tissue injury to his left hand and was out of work for five days.
Counsel suggests circa €21,700 award for soft tissue injury to hand
110. In the present case, counsel for Garda Kampff submitted to the Court that an award in the region of €21,700 would be a suitable award, without making any reference to the proportionate principle or the average earnings principle. Reference was made to the Book of Quantum where it is provided that the lowest band of awards for injuries to the hand, which are described as ‘minor’ with the following description:
“E. Hand
Soft Tissue
Like other sprains, hand sprains are sometimes classified in grades: mild sprains involve some stretching of ligaments; moderate sprains involve partial rupture of a ligament while severe sprains involve complete rupture of a ligament. The injury may last for several weeks or several months but a full recovery is the most common outcome.
Minor up to €21,700
Minor sprains are mild injuries where there is no tearing of the ligament, and often no movement is lost, although there may be tenderness and slight swelling which has substantially recovered.”
111. It is this Court’s view that without even applying the scepticism to which O’Donnell J. refers, an award of anywhere close to €21,700, almost a half year’s salary for a person on average earnings, as compensation for the pain and suffering involved in bruising to a hand would breach the proportionate principleandthe average earnings principle set down by the Supreme Court and the Court of Appeal regarding the calculation of damages in personal injury cases.
112. In addition, such an award, for what is a modest injury, would in this Court’s view visit an injustice and unfairness on those who suffer middle ranking injuries who might receive damages that are only modestly different from those suffering bruising to a hand, if such an award was to be made, and this would create a concertina effect between modest injuries and middle ranking injuries, contrary to the stated need in theWirenski caseto avoid such an eventuality.
113. Applying the three principles from theWirenskicase to Garda Kampff’s case, this Court would ask the following questions:
Proportionate principle
114. Is the suggested sum of €21,700 for pain and suffering for the soft tissue injury to Garda Kampff’s hand, which is 4.82% of the ‘cap’ on damages for pain of suffering of €450,000 for a paraplegic injury, a proportionate award for a soft tissue injury to a hand? In view of the vast difference between paraplegia and bruising to a hand, this Court concludes that this suggested award breaches the proportionate principle.
Average earnings principle
115. Is the suggested award of €21,700, which sum it would take an average person working full-time five months to earn, a reasonable amount of compensation for this soft tissue injury to the hand? Or to put the matter another way, would it be fair to require a person to notionally work for five months to compensate Garda Kampff for bruising his hand if that person had done so negligently and was being sued by Garda Kampff?
116. In this Court’s view, this would not be fair and €21,700 is many multiples of a fair award for this type of injury. This Court concludes that the sum of €5,000 is reasonable compensation for the injury suffered, being over a month’s salary of a person on average earnings (or 1.1% of the ‘cap’ on damages).
Fair to the garda and the State
117. Finally, applying the other principle, which this Court is obliged to do by the Court of Appeal, it is this Court’s view that an award of €5,000 would be fair to the garda and the defendant – in this case the State.
Application of scepticism and common sense to claims for damages
118. In addition to these threeWirenskiprinciples, this Court is required by the Supreme Court judgment inRosbeg Partners v LK Shields, to approach Garda Kampff’s claims regarding the effect of the injury on him and the pain and suffering he experienced, by applying common sense and a degree of scepticism to these claims.
119. It is important to emphasise that this is not a reflection of the honesty of Garda Kampff, and this Court had no reason to doubt his honesty.. Rather it is because, as noted by the Supreme Court, of human nature. It is human nature for a person who is involved in litigation to wish to be as successful as possible in that litigation and avoid the consequences of failure. As noted by the Supreme Court, this human nature can lead to litigants giving themselves the benefit of doubt, which is combined with the tendency of memories and consequently accounts to become subtly and unwittingly adjusted under the focus of litigation.
120. Thus, while Garda Kampff did state in his evidence before this Court that it was one year before his hand was better, it is this Court’s view that some degree of scepticism and commons sense needs to be applied to this claim in light of the undisputed medical evidence regarding the nature of the soft tissue injury to his hand. Applying this approach leads also to this Court’s assessment of a figure of €5,000 for pain and suffering, without impugning Garda Kampff’s honesty to any degree.
CONCLUSION
121. The fact that precedent or support could be found in the Book of Quantum for Garda Kampff’s submission that he should be awarded €21,700, which is close to a half year’s average earnings, for bruising to his hand, may explain why the Court of Appeal has applied a downwards recalibration to personal injury awards which will be relevant to all awards contained in the Book of Quantum.
122. Applying the proportionate principle and the average earnings principle, which this Court is obliged to do, rather than relying on the Book of Quantum which is a non-binding guide, led this Court to conclude that the appropriate figure for pain and suffering is €5,000, which is over a month’s salary based on average earnings in Ireland.
123. The notion that modest soft tissue injuries should receive anything close to a half year’s average earnings is a very significant issue for the citizens of the State since, to refer again to the Supreme Court judgment inKearney v. McQuillan:
“The resources of society are finite. Each award of damages for personal injuries in the courts may be reflected in increased insurance costs, taxation, or, perhaps, a reduction in some social service.”
124. This case involved a modest soft tissue injury, for which damages of €5,000 have been awarded in the High Court. This amount is a fraction of the maximum damages of €15,000 that can be awarded in the District Court. Yet this matter had to be heard in the High Court under the Garda Compensation Acts as currently drafted. Because of the very expensive cost of High Court litigation, this means that the costs of obtaining this award of €5,000 is estimated to be in the region of €15,000-€20,000, which defies logic. It is the taxpayer who is funding these sums, since the legal costs of both parties to the litigation are payable by the taxpayer (as liability is invariably conceded by the State and one is dealing only with assessment in Garda Compensation cases). Since this case is a common example of the type of case that is heard in the High Court under the Garda Compensation Acts on a weekly basis, it highlights, in this Court’s view, the need for a reform of this area.
125. Finally, in assessing damages for pain and suffering in all personal injury cases, the principles enunciated by the Court of Appeal and the Supreme Court make it clear that:
•First, this Court must apply scepticism and common sense to claims made by a plaintiff/applicant regarding the extent and effect of the injuries in support of their claims for damages/compensation not because of any presumed dishonesty on the part of the plaintiff/applicant, but rather in light of human nature,
• Secondly, to the extent that reliance is placed on the Book of Quantum, this Court must consider the effect of the recent downward recalibration, in some cases of 45-50%, by the Court of Appeal on awards of damages for personal injuries,
• Thirdly, this Court must determine if the proposed amount for damages for pain and suffering for the personal injury in question is proportionate, bearing in mind that the cap on damages for pain and suffering is €450,000 for a catastrophic injury such as a paraplegia, and
• Fourthly, this Court must determine if the proposed amount is reasonable in light of the fact that it takes an average person a month to earn €3,800 and a year to earn €45,611.
The enunciation of the foregoing principles which the courts are required to apply in calculating damages for personal injuries, and in particular the use of the average earnings principle has the advantage of making the process of calculating damages accessible for ordinary citizens who are involved in such claims on a daily basis. It is hoped that even if there is no reform of the Garda Compensation system, these principles may assist parties who are involved in Garda Compensation and other personal injury litigation to make and accept settlement offers and thereby reduce the amount of court time required to deal with these cases, in light of the current strain on court resources.
Newell (A Minor) v Bus Eireann
[2001] IESC 61 (10 July 2001)
THE SUPREME COURT
No 251/00
Denham J.
Hardiman J.
Fennelly J.
JUDGMENT of the Court delivered the 10th day of July, 2001 by FENNELLY J.
This is an appeal by the plaintiff against the parts of the assessment of general damages awarded to her by Johnson J, concerning
(a)
(b) Pain and suffering to date of trial
Pain and suffering in the future £30,000
£25,000
The plaintiff complains that these figures are too low and should be increased
-2-
The plaintiff was born on 22nd January 1986. In October 1993, when she was seven, she was on a school bus run by the defendant and was on her way to school. The bus filled with black smoke apparently as a result of an engine fire, though the bus did not catch fire. The plaintiff breathed in a lot of smoke. She started to cough because it was coming down her throat. Even after leaving the bus, she felt in shock. She was distressed and crying, her throat was sore with coughing and her chest felt tight. She was on the bus for some minutes before it was cleared of all its passengers.
For some time after the accident, the plaintiff suffered nightmares about the incident. She would wake up in distress, shaking, sweating and with her heart pounding. There were a few incidents of sleepwalking. She became very nervous, clung to her mother and did not want to go to school. She had abdominal pains. She also recommenced bed-wetting, from which she had suffered previously as a result of certain distressing incidents, but from which she had recovered.
The bed-wetting occurred almost every night with occasional daytime incidents for a year and continued for several years but eventually resolved itself, though with occasional persistent problems of loss of control, when she was ten or eleven. All of these symptoms were explained by a psychiatrist, who gave evidence, as being the result of an acute anxiety disorder. They were resolved to a large extent after some five months, but some symptoms persisted even up to the time of the hearing in the High Court. The psychiatrist thought that her continuing psychological problems were more associated with the respiratory problems to which I now turn.
The most serious aspect of the plaintiffs injuries was that she developed respiratory difficulties. At first, however, it was assumed that she simply had a bad cold – she coughed up a lot of mucus – and she was put on antibiotics by the family doctor several times over a period of months. After more than a year, she was referred to a specialist who diagnosed
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a condition akin to asthma, called reactive airways dysfunction syndrome. She had signs of airway inflammation with gas trapped behind closed airways. Such long-term damage can be due to brief exposure to noxious fumes. The symptoms are, as in asthma, breathlessness and wheezing. They are accompanied by a lot of coughing, especially in winter. While previously the plaintiff was the fastest runner in her class at school, she found that she was no longer able to run without distress and wheezing. Eventually she lost interest. She was fond of dogs, but is now conscious that close proximity to animals risks setting off her wheezing. Her condition has varied up and down over the years. Periods of improvement have been followed by relapse. The expert opinion suggests that her chances of recovery are somewhat less, forty per cent, than a normal asthma sufferer, where the chances are said to be about fifty per cent. The age of fourteen was said to be a sort of watershed. She was just over fourteen at the time of the High Court hearing. Her ongoing drug regime involves taking Inhaled steroids at relatively high dosages morning and evening, with several daily applications of a reliever inhaler. In winter she needs an antibiotic cover.
In considering the appeal against the two parts of the assessment of damages by the learned trial judge, I think it is also necessary to separate so far as possible the cluster of symptoms described by the psychiatrist as acute anxiety disorder. The general burden of the evidence and the finding of the learned trial judge is that these symptoms had largely, though not totally, resolved within the first six months, though the bed-wetting problem persisted for three or four years. The continuing symptoms of stress are more, though perhaps not entirely, associated with the respiratory problem, which has both a past and future element.
On the basis that the sum of £30,000 in question is largely for the consequences of the acute anxiety disorder, I consider the assessment of damages for pain and suffering to date to reasonably compensate the plaintiff for the undoubted distress which she suffered over a period
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of several years but which were diminishing during that time. It certainly has not been shown to be in error to the standard that would be required before this Court would disturb it. Therefore, I would dismiss the appeal insofar as it concerns the sum of £3O,OOO awarded under that heading.
On the other hand, I think the sum of £25,000 allowed for future pain and suffering falls significantly short of adequate compensation for the fact that the plaintiff has effectively acquired a condition akin to asthma. It is true that the evidence establishes that the symptoms of the condition are effectively controlled. That result, however, is achieved by a notably comprehensive programme of drug treatment. The need for the plaintiff to take a reliever inhaler several times daily as well as before exercise is indicative of the active state of her condition. It appears to be common case that the chances of the plaintiff’s recovering from this condition are assessed at rather less than fifty per cent, though such a prognosis is necessarily more in the nature of a conjecture than any real evaluation of probability. The correct approach must be to take this element into account as amounting to a very real possibility that the plaintiff will continue to suffer from this condition all her life. An obvious consequence is that she will, on that hypothesis, have to follow a heavy daily drugs programme. Apart from the inconvenience of that course, it cannot be entirely devoid of risk of side effects. The plaintiff has also lost a significant element of enjoyment of life in no longer being able to pursue athletic pursuits. Her innate enjoyment of animals has been curtailed. There is some restriction of her employment possibilities consequent on the need to avoid inappropriate environments.
I would allow the appeal in this respect and increase the figure for future pain and suffering to £50,000.
Yun v MIBI and Tao
[2009]IEHC 318
Judgment of Mr. Justice John Quirke delivered on the 17th day of July 2009
The plaintiff, Ms. Yang Yun, was born on the 1st May, 1981, and is now twenty-eight years old. On the 9th May, 2002, just eight days after her twenty-first birthday, she suffered serious personal injuries when a motorcar, driven by the second named defendant, Tommy Xiang Bai Tao, struck the rear of another vehicle on the public highway near Drogheda in County Louth. It then collided with a third vehicle.
The plaintiff was a rear seat passenger sitting directly behind the driver of the vehicle when the collisions occurred. She was wearing a seatbelt. She suffered very serious injuries as a result of the collisions including: (i) a compression fracture of her first lumbar vertebra, and, (ii) a further compressive collapse of the superior anterior end-plate of her first lumbar vertebra with kyphosis in an anterior posterior direction at the level of the fracture.
In these proceedings she claims damages from the defendants to compensate her for her injuries and for the consequent loss and damage which she has sustained.
She claims that the collisions, (and her consequent injuries), were caused by the negligence and breach of duty of the second named defendant, Tommy Xiang Bai Tao.
Her claim against the first named defendant, the Motor Insurers Bureau of Ireland, is made pursuant to the terms of an agreement in writing dated the 21st December, 1988, between the (then) Minister for the Environment and the Motor Insurers Bureau of Ireland.
Both defendants admit that the road traffic collisions on the 9th May, 2002, which caused the plaintiff’s injuries were caused by the negligence of Tommy Xiang Bai Tao and that the plaintiff is entitled to recover damages from both defendants, jointly and severally, to compensate her for her injuries and for the loss and damage which she has sustained and will sustain in the future.
No contributory negligence has been alleged on the part of the plaintiff and, accordingly, the task for this Court is to assess the damages to which the plaintiff is entitled by reason of the admitted negligence and breach of duty of the second named defendant.
FACTUAL EVIDENCE
The following facts have been established in evidence:
1. The plaintiff was born on the 19th May, 1981, in the city of Dalian in Northern China. She is the only child of devoted parents. Her mother is the manager of a hotel and her father is a transport manager working in the same hotel. She was enrolled by her parents in a good local regional school (called the Dongbei University of Finance and Economics) at the age of 6 years and received an excellent first and second level education in China.
A Notarial Certificate issued by her school recorded that, during her final three years at school, (between the 1st September, 1997, and the 15th July, 2000,) she attended the school’s College of Technology and achieved an impressive student’s score list in a variety of subjects including: Chinese; Maths; English; Computer Science; Economics Law; Securities Law; Physical Education and a number of other subjects.
She chose not to proceed to third level education in China. Instead she decided to travel with her boyfriend, Tony Cao Zhi (hereafter “Tony”), to Europe after graduation so that she could learn English and study accountancy.
She wished to graduate with an internationally recognised degree in accountancy. An advertisement in a local newspaper recommended Irish educational institutions and in consequence she chose to travel to Dublin to achieve her objective.
She arrived with Tony in Dublin and commenced an intermediate English language course in the American College in Dublin for six months.
In April, 2002, she enrolled in the English Language Institute on St. Stephen’s Green for a one-year course in English at a cost to her of €2,000.
Thereafter, it was her intention to commence a three-year accountancy degree course in either University College Dublin or Grace’s College preparatory to graduation as a Certified Accountant.
She obtained a student visa which permitted her to work in Ireland for up to twenty hours per week whilst she was resident within this jurisdiction.
2. On 9th May, 2002 the collision occurred which caused her injuries. The car in which she was a passenger was travelling from Dublin towards Drogheda. She heard a bang and felt that her body had been thrown forward and backwards as a result of a very big impact.
She immediately suffered pain in the middle of her back which was so severe that she could not speak and was unable to move. When the car came to a halt she loosened her seatbelt with her left hand and opened the door with her right hand. When she tried to step out and to stand up, she felt unbearable pain in her back and slid down onto the ground close to the damaged car.
After a short time an ambulance came and she was provided with oxygen. Supports were placed on the stretcher which had been provided for her. A paramedic cut off her clothes and touched the area which was swollen. When he did so, she suffered a pain so severe that it was difficult to describe. She was brought to Our Lady of Lourdes Hospital in Drogheda where X-rays and CAT (CT) scans were undertaken.
On admission to hospital, she was asked to stand up but the pain was so severe that she became deaf and was assisted back to bed, she was sweating and her hair was sticky and her clothes were wet.
She remained in the hospital in Drogheda for between eight and ten days suffering constant severe pain in her back. Whilst in the hospital she could not walk or visit the bathroom by reason of her condition. Doctors administered painkillers intravenously though her stomach. A swollen area developed in the centre of her back which she could not touch.
3. She was treated in hospital by way of medication only. A soft brace was applied to her back. After she had been discharged home she suffered constant debilitating pain and very severe disability in every aspect of her life. This pain and those disabilities have remained with her constantly since. She has required continuous care and assistance from her boy friend, Tony, for every type of domestic activity and for the performance of intimate bodily functions. This has caused her constant humiliation and embarrassment.
She needs assistance walking, (even short distances), because the pain when she walks is severe. She sleeps in pain and with difficulty for short periods. She cannot sit for any lengthy period. She cannot stand for more than ten minutes at a time without pain. She wears a soft brace permanently for twenty-four hours of every day.
She has spasms of neuralgic pain which she describes as “unbearable”. She requires incontinence pads during these spasms. When she suffers a spasm, she is “untouchable” and cannot be helped. She must lie on her bed during the most severe spasms which last for an entire day.
She requires the application of painkilling cream and infrared treatment every morning and every night to help relieve the pain. She takes medication every four hours. This adversely affects her appetite and often causes her to vomit. She eats from a feeding bowl by lying backwards and balancing the bowl upon her chest. If she tries to eat in any other manner, she loses her appetite entirely.
If she wishes to use the bathroom at night, she needs assistance to make that journey. She has constant dreams about the collision. In these dreams she is flung backwards and forwards. These dreams terrify her and make her relive her immediate post-accident pain. She has been unable to return to school to continue her studies.
Before the accident, she telephoned her parents regularly. She lives upon the remittances which they send to her from China. She has not informed her parents about the collision and her injuries because she does not want them to discover her present status. Her injuries are a source of shame for her. Disability carries with it a stigma in her home region in China. If her parents knew of her condition they would be worried and concerned about the life she is now living far away from them. Her father has a fragile heart condition. She is concerned for his health if he learns of her injuries and their consequences for her.
As a consequence of the accident she now has an unsightly swelling or hump in the lower centre of her back which is known as a “gibbous”. Her medical advisers have discussed with her the possibility of her undergoing reconstructive surgery to correct this deformity and to reduce her pain. They have explained to her that the angulation of her back has been adversely affected by her injury. It should be nought degrees. Immediately after the accident it had increased to between thirty degrees and forty degrees. It is presently sixty degrees and is likely to deteriorate further.
The objective of the surgery will be: (a) to correct the unsightly angulation within her spine and to remove the “gibbous” and (b) in particular, to relieve or reduce the level of continuous pain which she now suffers as a consequence of her injury.
She has been told in lay person’s terms that the surgery, if undertaken, will require that she be stretched across a bent table while her back is surgically opened so that metal or titanium rods can be inserted within her spine. Thereafter, the table will be straightened and the spine will straighten with the table.
Having advised her of the risks associated with it, (including a risk of paraplegia which has been calculated at between 1% and 5%), her surgical advisers have recommended that she should undergo the surgery.
She is not willing to do so. She has a consuming fear of paraplegia. One of the reasons for her fear is that physical disability, (and in particular paraplegia), carries with it a special stigma in her home region in China.
Additionally she has been advised that if the surgery is successful, it may not necessarily relieve her pain.
Prior to the accident the plaintiff worked regularly for approximately twenty hours each week as a cleaner in the Jervis Shopping Centre. She had been lawfully entitled to work for twenty hours each week under the terms of her student visa.
MEDICAL EVIDENCE
(A) Physical Injuries
1. Mr. Ashley Poynton, who is a consultant orthopaedic and spinal surgeon, and Mr. Christopher Pidgeon, who is a consultant neurosurgeon were in full agreement on the nature and extent of the plaintiff’s physical injuries.
She has suffered “a devastating spinal injury” which includes a compression fracture of the anterior superior end-plate of the first lumbar vertebra (LV1). Her complaints are entirely consistent with her injury.
X-rays have shown a progressive compressive collapse of the vertebra into a “wedge” shape which has left her with a significant kyphosis. The vertebra has been “squashed” and the compression has been “pretty well total”. In consequence the plaintiff now has a significant curvature of the spine and suffers from chronic low back pain with some thigh numbness, (resulting from nerve route compression).
She has also suffered probable fractures of the transverse processes which are wings at the side of the vertebrae to which muscles are attached. The fractures of the transverse processes have not been as serious as the compression fracture.
There has been slippage of at least one adjoining vertebra (TV12) and narrowing of the LV1/2 disc space with sclerosis (increased bone density) at that level.
Adjacent margins (DV12 and LV1) show signs of the onset of degenerative change. This change was not present in earlier MRI scans and is the direct result of the impact from the road traffic accident.
The X-rays and MRI scans, which Mr. Poynton examined, demonstrated that the fracture has resulted in an injury which has torn through the soft tissues which were the restraining structures in respect of the vertebrae. The result has been what is called a “soft tissue chance injury” which has resulted in progressive compression. This, in turn, has given rise to angulation of the spine. The apex of the angulation is the “gibbus” in her spine at this level and this has been consistent with the injury and its consequences.
At the time when she was injured the severity of the compression fracture at the LV1 level was underestimated by the medical staff responsible for treating her. Accordingly, she did not then receive and has not since received the surgery which she urgently requires.
That surgery, (described in evidence as “formidable”), if undertaken now, is likely to be lengthy and painful and she will require significant rehabilitation after its completion. It carries with it a number of risks including the risk of paraplegia. It also carries with it an increased risk of “second segment disease” immediately below the area affected.
The level of the plaintiff’s injury is at the junction between her abdomen and chest, and in consequence it has caused her significant back pain when she does simple things, (like standing in front of a washbasin, bending, stooping, lifting and undertaking small household chores).
Although she has been able to walk outdoors with some support for up to two hours and should be physically capable of showering while seated, she finds such activities very difficult and is unable to perform them without ongoing constant help and assistance.
Lumbar lordosis in the plaintiff’s spine is the result of compensation for the compression fracture and is the physical cause of the plaintiff’s low back pain.
She complains of frequent constipation. This is consistent with her injury and has resulted from: (a) immobility; (b) pain killing and antidepressant medication; and (c) pressure upon the gastrointestinal system from the affected vertebrae and soft tissue.
If the surgery is performed, she should be able to study and to pursue a career of the type which she had contemplated before the accident.
Mr. Poynton has advised the plaintiff to undergo the surgery but has been required to warn her of the risks associated with the surgery including a risk of paraplegia which he has estimated at between 1% and 5%.
He advised her that where the surgery is performed using spinal cord monitoring, the risk is reduced to 1% or possibly less. He also warned her of other potential risks associated with the surgery including infection, part-paraplegia, and severe bleeding.
The plaintiff’s injury is complicated by the fact that she is concurrently suffering from a profoundly disabling psychological injury which has been directly caused by the road traffic accident and which has remained untreated for more than six years.
When asked to estimate the prospect of the plaintiff undergoing the required surgery and returning to her studies, Mr. Poynton replied: “I would say possibility is more realistic than probability”.
Although he has strongly recommended the surgery to the plaintiff, he believes that it is reasonable for the plaintiff to refuse to accept his advice.
Some of his patients have declined this surgery in similar circumstances. One such patient declined the surgery because she is the mother of three children.
If the plaintiff does not have the surgery, she will continue to have significant pain, her condition may deteriorate and her chances of successfully giving birth will be called into question.
If she does undergo the surgery, pain management will be required after the surgery and she will require considerable ongoing assistance from her boyfriend because an adverse psychological state can impact upon rehabilitation.
The cost of the surgery is estimated at €33,000 for one day. Thereafter, the plaintiff will require inpatient treatment for between one week and one month and further rehabilitation for up to six months.
The surgery, if performed, will result in significant scarring. The length of the incision will be 20 to 30 centimetres. After the surgery, bracing will be required for some three months. A lightweight brace can be used which can be removed at night but causes discomfort.
If she undergoes the surgery, she may still continue to have back pain and this may influence her ability to perform occupations with a physical component such as cleaning, lifting and carrying.
If she does not undergo the surgery, she will require ongoing pain management and approximately three to four hours care every day.
Mr. Pidgeon is in agreement with the findings and views of Mr. Poynton. He further advised the plaintiff as follows:
(a) she should undergo the surgery because, if successful, her posture will be improved and the risk of degeneration reduced;
(b) if the surgery is successful, she will probably be physically capable of greater independence in domestic and other areas, (although the pain is unlikely to be eliminated altogether);
(c) in making her decision, she should take into account the pain and discomfort she is currently suffering;
(d) if the reconstructive surgery is undertaken, and is successful, then she will probably be fit for light work which does not involve heavy lifting or prolonged stooping or bending; and
(e) if she does not undergo the surgery, she will have no realistic employment prospect.
Although, if he were in the plaintiff’s position, he would undergo the surgery, Mr. Pidgeon is of the opinion that the decision in relation to the surgery is a decision which only the plaintiff can make.
(B) Psychiatric/Psychological Injuries
Evidence of the plaintiff’s psychological and psychiatric injuries was adduced by Dr. Paul McQuaid and by Dr. David Shanley who are experienced consultant psychiatrists. They were in agreement in respect of her psychiatric and psychological injuries.
The plaintiff has developed a significant post-traumatic disorder of her mind which is known as mood disorder. It is a verifiable condition. This mood disorder, which is a disabling injury, is a direct consequence of the back injury which the plaintiff sustained in the road traffic accident.
She has needed urgent medical intervention including support and treatment for her mood disorder since she first suffered the injury to her back. She has been mentally depressed, withdrawn, apathetic and nihilistic since then.
In April, 2006, Dr. McQuaid was so concerned about her condition that he urgently requested that his medical findings should be made available to the health authorities so that the plaintiff could be provided with immediate treatment and support. She did not receive that treatment.
When Dr. McQuaid examined the plaintiff on the 10th July, 2007, he found that she had deteriorated. Reporting on that examination, he concluded inter alia that:
“Maggie remains significantly depressed, conflicted, withdrawn, apathetic and nihilistic. Her mood disorder persists in the context of a significant back injury following the road traffic accident with which this report is concerned, now five years ago. Her overall circumstances have worsened and she represents a major challenge, both in terms of surgery and mental health needs.
The undersigned remains very concerned about her and has communicated that concern to her solicitor. It is quite unacceptable that she should be without appropriate general support and specifically, mental health intervention. Were she an Irish citizen, it would be an immediate requirement that she receive mental health intervention, probably admission to an acute psychiatric unit. She is fundamentally conflicted about her situation and helpless to do anything about it. Noteworthy are her depressive symptoms and thoughts of suicide. The prognosis is currently grave.
Lastly, her ability to work in the future is a subject about which it is virtually impossible to give a proper opinion, given her current state of disability and mental disturbance, although increasingly, the prognosis seems poor.”
On the 23rd July, 2008, the plaintiff continued to suffer severe mood disorder. She was very vulnerable and entertained thoughts of suicide. Her background circumstances, including the fact that her parents were so far away in China together with a fear of what might happen should she return to China contributed to her depressive condition.
Although her mood was down and her demeanour troubled, tearful and uncomfortable, she had obtained a clear benefit from treatment which she was then receiving from Dr. David Shanley.
The plaintiff is one of the most severe cases of mood disorder that Dr. McQuaid has encountered in his career. Suicidal ideation is one of the main concerns for psychiatry and the plaintiff is one of the most severe cases associated with that ideation that Dr. McQuaid has encountered. She represents a real risk in this respect.
Persons suffering from psychological illness can often feel pain more intensely by reason of their psychological condition. Dr. McQuaid has never entertained any doubt that the plaintiff’s pain is real.
He believes that she is conflicted by the issue raised by the recommendation of surgery. Part of her recognises that she should have the surgery. Another part of her is frightened of it. He describes her as “stuck” in this conflicted position, unable to make a decision. He believes that this is reasonable, having regard to the circumstances in which she has been placed.
He is of the opinion that very intensive psychiatric treatment over a period of between three and four months and subsequent further psychiatric treatment thereafter may bring her to the point where she will be in a position to make a rational decision in relation to the surgery. A decision to undergo the surgery would be rational.
The psychiatric treatment required would be extensive and expensive and could take a significant period of time.
Dr. Shanley is of the opinion that the plaintiff is profoundly depressed with marked psychomotor retardation. That means that her movements are slowed, her concentration is poor, she has difficulty sleeping, she has lost interest in everything and she has a poor appetite.
These are all classical symptoms of depression and they are fuelled by the fact that she feels she has not lived up to her family’s expectations and is therefore unable to tell them about her injury and her consequent dilemma.
She has cut off all communication with her friends and appears to be trapped in a time warp, unable to move or to make decisions. The severity of her depression distorts her thinking, which, at times, is delusional.
After Dr. Shanley prescribed antidepressant medication and sleeping tablets, there was a slight improvement in her condition and she cried less frequently. However, she remains profoundly depressed, is fatalistic and negative towards her future and refuses to consider the surgery which has been recommended for her.
Dr. Shanley can understand the plaintiff’s decision to refuse surgery. Like Dr. McQuaid, he recommends a very intensive course of inpatient treatment which he estimates will take approximately three months in an institution such as St. Patrick’s Hospital or St. John of God’s Hospital. He estimates that the treatment will cost approximately €550 per day. He points out that because of her difficulties with language, she would need an interpreter during this treatment, (especially during psychotherapy sessions).
He believes that there is no possibility that the plaintiff will undergo the requisite surgery unless she receives this psychiatric treatment. While there is a “prospect” that the psychiatric treatment will be successful in assisting the plaintiff to make a rational decision in relation to the surgery, Dr. Shanley does not describe it as a “good prospect”.
Stating that he would undergo the surgery if he were in her place, he continued: “I am quite certain that Maggie is adamant that she will not have the operation”. When asked, in cross-examination, whether he thought that the surgery was a “probability” or a “possibility”, he replied “possibility”.
RECOMMENDED SURGERY
In seeking to assess the damages to which the plaintiff is entitled, the central question which must be addressed is whether, on the evidence and on the balance of probabilities, the plaintiff will undergo the reconstructive surgery which has been recommended for her.
The plaintiff testified over a period in excess of four days. Although interpretation requirements added considerably to the duration of her evidence, she nonetheless described her injuries and their consequences carefully and in great detail.
Her evidence was consistent with and corroborated by the expert medical evidence which was adduced in these proceedings. It was also consistent with and corroborated by the findings of a private investigator retained by the defendants, who placed the plaintiff under surveillance and recorded her movements on camera without her knowledge on a number of occasions between the 5th February, 2008, and the 20th February, 2008.
During her testimony and at other times while she was present in court the plaintiff appeared to be in constant pain, never smiled and moved slowly and with obvious difficulty.
She became animated only on two occasions: (i) when speaking about her parents in China and (ii) when she was expressing her determination not to subject herself to the reconstructive surgery which her doctors strongly recommend for her.
In every other respect her demeanour appeared withdrawn, depressed, hopeless and joyless. She is now twenty-eight years old.
I found her to be a careful and conscientious witness. I accept that she is, at present, determined not to undergo the recommended surgery.
The question which must be addressed is whether, on the balance of probabilities, she will, in fact, undergo the surgery at some future date.
This court is not competent to answer that question. It must be guided by, and rely upon, the expert medical testimony which has been adduced in respect of that issue.
The expert medical witnesses unanimously agree that it is greatly in the plaintiff’s interests for her to undergo the surgery.
Mr. Poynton and Mr. Pidgeon (quite properly) refuse to try to predict the ultimate decision but stress that, at present, the plaintiff is determined to exercise her undeniable right to decline the surgery.
Mr. Poynton says that it is reasonable for the plaintiff to refuse to accept his recommendation. He was sceptical about the prospect of the plaintiff agreeing to undergo the surgery. He pointed to others amongst his patients who have declined this surgery for reasons not dissimilar to those identified by the plaintiff.
Dr. McQuaid believes that the plaintiff’s refusal to consider surgery has been influenced by her mood disorder. He says that this disorder makes it impossible for her to make a rational decision at present.
He is of the opinion that intensive inpatient psychiatric treatment over a period of three or four months and subsequent additional outpatient psychiatric treatment may bring her to the point where she will be in a position to make a rational decision and, in consequence, to undergo the surgery.
Dr. Shanley agrees that intensive inpatient psychiatric treatment will benefit the plaintiff. However, he says that the prospect of the plaintiff undergoing the surgery after such treatment can only be described as a “possibility” and not a “probability”.
On the evidence there is no prospect of the plaintiff undergoing the surgery within this jurisdiction in the foreseeable future unless she first is prepared to be admitted to St. Patrick’s Psychiatric Institution or to St. John of God’s Psychiatric Hospital in order to undergo a three -month programme of inpatient psychiatric treatment.
She must then be prepared to submit herself to outpatient psychiatric treatment for a further significant period before she will be capable of seriously considering the question of subjecting herself to the recommended surgery.
I am assuming, for the purposes of this issue, that she will be permitted to remain within this jurisdiction during the proposed psychiatric treatment and thereafter in order to consider, (and possibly undergo) the surgery.
For more than six years now, she has lived in confined accommodation within a country which is more than 10,000 miles from her home. During that time she has had little contact with any person other than her boyfriend, Tony, upon whose support she has been totally dependant for every kind of personal care.
She will not enjoy his support during inpatient psychiatric treatment and it is unlikely that she will receive comparable support having regard to language and other communication difficulties. She will still be the same distance from her home.
If the psychiatric treatment is successful, Dr. Shanley believes that the prospect of her undergoing the surgery can be described as a “possibility”.
Dr. McQuaid takes the view that intensive psychiatric treatment, if successful, will enable the plaintiff to make a “rational” decision about the surgery. Dr. Shanley agrees but says that the resulting “rational” decision is unlikely to be positive.
The fact that the expert and other relevant witnesses believe that, faced with the same decision, they would choose to undergo the surgery does not necessarily render irrational a contrary decision by the plaintiff.
The fact that the plaintiff is presently suffering from a mood disorder which affects her capacity to make rational decisions does not mean that a decision made by her (now or later) not to undergo the surgery will necessarily be irrational.
A small number of patients who are unimpaired by any psychiatric or psychological illness or injury have declined this reconstructive surgery for reasons which, to them, were quite rational.
The prospect, however small, of paraplegia clearly terrifies the plaintiff. It appears to have been magnified by a stigma which, apparently, attaches to disability within her home region in China. Her terror of paraplegia is not necessarily irrational. It has been shared by others in this jurisdiction and elsewhere.
I have with regret concluded that, on the evidence and on the balance of probabilities, the plaintiff is unlikely to undergo the reconstructive surgery which has been recommended for her and that she will probably rely upon pain management and care to reduce the effects of her injuries.
I have based that conclusion principally upon the medical evidence adduced in the case. I have also been influenced by the plaintiff’s testimony and by her personal circumstances.
MITIGATION
It is contended on behalf of the defendants that, if the plaintiff refuses to undergo the surgery, she will have failed to take reasonable steps to mitigate her injury and will be seeking to visit upon the defendants a liability for injury, loss and expense which is unreasonable and unnecessary in the circumstances.
The duty which rests upon a claimant to mitigate injury, loss and damage sustained as a result of negligence is well established. It includes a duty to obtain such medical treatment as may reasonably be necessary to reduce the claimant’s pain and suffering and the extent of any loss which he or she may sustain and subsequently seek to recover.
Questions concerning whether or not claimants have acted reasonably in order to mitigate injury and loss are questions of fact for the court – (see Sotiros Shipping Inc. v. Sameiet Solholt [1983] 1 Lloyd’s Rep 605).
Where it is claimed on behalf of a defendant that a claimant has failed to mitigate by refusing recommended surgery, the onus rests upon the defendant to show that the claimant’s refusal has been unreasonable in the circumstances (see Steele v. Robert George & Co. (1937) Ltd. [1942] A.C. 497, Richardson v. Redpath, Brown & Co. Ltd. [1944] A.C. 62 and Selvanayagam v. University of West Indies [1983] 1 WLR 585).
The medical experts who testified in these proceedings were disappointed by the plaintiff’s refusal to undergo the surgery which they were recommending. However they were unanimous in their view that her refusal was reasonable in the circumstances. No evidence was adduced suggesting otherwise.
It follows that the onus of proving the failure to mitigate has not been discharged in these proceedings.
DAMAGES
The task for this court is to assess the damages to which the plaintiff is entitled to compensate her for the injuries, loss and damage which she has suffered as a result of the defendants’ admitted negligence and breach of duty.
The principle restitutio in integrum applies and the court is required to replace the plaintiff, insofar as money can do so, in the position which she would have occupied if she had not suffered her injury.
What cannot be and is not in dispute is that during the period of more than eight years which has elapsed since the plaintiff suffered her injuries her life has been blighted beyond recognition as a direct result of those injuries.
Furthermore, her future life and prospects have been permanently and irrevocably damaged and her hopes and aspirations for the future are unlikely to be realised.
She is entitled to special damages, (pecuniary damages), to compensate her for: (a) the losses, costs and expenses which she has incurred since the 9th May, 2002, and, (b) the losses, costs and expenses which she will sustain in the future arising from her injury.
She is also entitled to general damages, (non-pecuniary damages), to compensate her for: (a) the injury which she suffered on the 9th May, 2002, and for the near destruction of her life and lifestyle within this country since then and, (b), the pain, suffering, inconvenience, distress and disruption of her life and lifestyle which will occur in the future as a consequence of her injury.
The “cap” on general damages
No sum of money can compensate for what is continuously suffered by a person who has been catastrophically injured.
Injuries which can be categorised as “catastrophic” are too numerous to list but they include quadriplegia, cerebral palsy, hideous deformity resulting from trauma or burns, various types of catastrophic brain injury, combinations of multiple amputations and sensory losses, severe paraplegia, a range of untreatable lung, intestinal and other internal organ injuries and some extreme chronic psychiatric injuries which require permanent inpatient care, medication and, sometimes, restraint.
It is not really possible or desirable to contrast the effects of a particular catastrophic injury with those of another catastrophic injury. However some cases come before the courts where it can be readily recognised that the injury, (or injuries), suffered and their consequences are so grave that the maximum general damages payable should be awarded.
In Sinnott v. Quinnsworth Ltd., Córas Iompar Eireann and Edward Denning [1984] 4 I.L.R.M. 523 the Supreme Court, (O’Higgins CJ.), indicated that, when awarding general damages for catastrophic injuries, the court should bear in mind that: “…a limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which obtain in our society”. (At p. 532).
The court cited with approval the following extract from the judgment of Griffin J. in Reddy v. Bates [1983] I.R. 141:
“The fact that a plaintiff has been awarded what is considered to be sufficient damages to cover all her prospective losses, to provide for all her bodily needs, and to enable her to live in comparative comfort (having due regard to her disabilities), should be reflected in the amount of general damages to be awarded… In a case of this nature where damages are to be assessed under several headings, the jury, having added the various amounts awarded and having arrived at a total figure for damages, should consider the total sum (as should this Court on any appeal) for the purpose of ascertaining whether the total sum is, in the circumstances of the case, fair compensation for the plaintiff for the injury suffered or whether it is out of all proportion to such circumstances. In my view, the income which the capital sum would generate with reasonably careful and prudent investment is a factor which the jury (and this Court on appeal) should take into consideration in arriving at a conclusion in this behalf”. (At p. 148).
In Sinnott, the court (O’Higgins C.J.) explained that, in cases of catastrophic injury where awards have been made which are intended to provide for all loss of earnings, care and medical costs past and future:
“…. what is to be provided for… in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation. In assessing such a sum the objective must be to determine a figure which is fair and reasonable”. (At p. 532).
Condemning the jury’s award of IR£800,000 as lacking “all sense of reality” he continued:
“…this is a sum which if invested would yield a yearly income which in itself would defy even the most profligate expenditure. Such a sum bears no relation to ordinary living standards in the country or to the income level of even the most comfortable and best off in our community.” (Ibid).
He concluded that:
“…unless there are particular circumstances which suggest otherwise, general damages, in a case of this nature, should not exceed a sum in the region of IR£150,000. I express that view, having regard to contemporary standards and money values and I am conscious that there may be changes and alterations in the future, as there have been in the past.”
It is, therefore, well settled that, in 1984, the sum of IR£150,000 (€190,000), was the appropriate limit or “cap” on general damages. That finding has been repeatedly accepted by the courts and this court is bound by that acceptance.
Since 1984 the courts have reviewed and reassessed this “cap” from time to time by seeking to apply “contemporary standards and money values” to the accepted 1984 “cap” of IR£150,000 (€190,000). This court has been asked to undertake that exercise in these proceedings.
The court must, therefore, seek to assess general damages at a level broadly equivalent, in today’s values, to the award of IR£150,000 (€190,000) made in 1984.
The High Court (O’Sullivan J.) revisited the issue in McEneaney v. Monaghan and Coillte Teoranta County Council and Ors. (Unreported, High Court, O’Sullivan, J., 26th July, 2001) referring to intervening awards in the High Courts in excess of IR£150,000, and, in particular, to an award of IR£250,000 made by the High Court (Morris P.) in Kealy v. Minister for Health [1999] 2 I.R. 456.
O’Sullivan J. concluded that:
“… a reasonable equivalent to the IR£150,000 for general damages in Sinnott v. Quinnsworth Ltd in today’s money would be IR£300,000.” (€380,000), adding that he might be erring “on the side of conservatism”
In Gough v. Neary [2003] 3 IR 92, the Supreme Court (Geoghegan J.) explained in greater detail the principle identified by Griffin J. in Reddy v. Bates. Pointing out that the IR£150,000 “cap” identified in Sinnott v Quinnsworth was to be applied to general damages “in a case of this nature” he explained at p. 133 that:
“…the words that precede that opinion make it perfectly clear that he was talking of a case where all the future needs, etc. of the plaintiff had been covered by special damages”.
He continued at p. 134:
“In my view, there is no compulsory ‘cap’ if there is no ‘omnibus sum’ or, in other words, if the special damages are low. On the other hand that does not mean that the ‘cap’ figure cannot be taken into account in a general way in assessing the appropriate general damages in a non-cap case.”
In M.N v. S.M. [2005] IESC 17, the Supreme Court, (Denham J.) reviewed an award of general damages made by a civil jury to compensate a teenage girl for sexual assault, sexual abuse and rape.
Pointing out that the court, in that case, was hearing an appeal from an award of general damages by a jury in “…what appears to be a new and developing jurisprudence”, Denham J. at p. 474, expressed the view that:
“there should be a rational relationship between awards of damages in personal injuries cases. Thus the level and limitations of awards in general damages in personal injuries actions are informative”.
She referred to different methods of assessment of general damages for personal injuries adopted by some statutory bodies established by the State in recent times including: (i) a system of “weighting” adopted by the Residential Institutions Redress Board, (established in 2002 by the Residential Institutions Redress Act 2002 (Assessment of Redress Regulations 2002), and the “Book of Quantum” which the Personal Injuries Assessment Board, (established in 2003), is statutorily required to maintain by way of “guidelines” for the assessment of appropriate levels of general damages to be awarded in relation to a range of different physical injuries.
Pointing out that ‘Guidelines for the Assessment of General Damages in Personal Injury Cases’ are published and updated by the Judicial Studies Boards of England and Wales and of Northern Ireland and that similar guidelines have been recommended in this jurisdiction by the Committee on Court Practice in its 29th Report, she added at p. 473:
“I am of the view that information on awards of damages given in previous cases and information published by the judiciary benefits a court assessing general damages”.
Identifying the several relevant factors which must be considered by a court hearing an appeal from an award of general damages by a jury, Denham J. explained
“… An award of damages must be proportionate; it must be fair to the plaintiff and to the defendant, it should be proportionate to social conditions, bearing in mind the common good and should also be proportionate within the legal scheme of awards made for other personal injuries”. (At p. 461).
On the evidence in the appeal in M.N. v S.M. she concluded that:
“…an award of general damages to the plaintiff should be at the higher end of the range of awards of general damages in personal injury actions generally”. (At p. 475).
She reduced an award of €600,000 to €350,000.
Referring to the distinction between awards which are solely or largely general damages and awards of general damages where substantial comprehensive special damages have also been awarded, she expressed the view that “the equivalent figure” (in March 2005), to the sum of IR£150,000, (€190,000), awarded in Sinnott v. Quinnsworth was “in excess of €300,000”. (At p. 469).
In the instant case, Ms. Lydon S.C., on behalf of the defendants, relied upon references by O’Higgins C.J. in Sinnott v. Quinnsworth to the need for the courts to consider how awards in such cases impacted upon “the operation of public policy” and the observation of Denham. J. in M.N. v. S.M, that such awards should be “proportionate to social conditions, bearing in mind the common good”. (At p. 461).
In Wells v. Wells [1999] 1 AC 345, the House of Lords identified what is sometimes known as the “100% principle”. Lord Hope,(at para. 390A), explained that:
“…the object of the award of damages for future expenditure is to place the injured party as nearly as possible in the same financial position as he or she would have been in but for the accident. The aim is to award such a sum of money as will amount to no more and, at the same time no less than the net loss.”
However, in Heil v. Rankin [2001] QB 272 at p. 297, the Court of Appeal (Lord Woolf M.R.) pointed out that:
“A distinction exists… between the task of the court when determining the level of pecuniary loss and when determining the level of non-pecuniary loss. In the case of pecuniary loss, and issues such as that which engaged the House of Lords in Wells v. Wells, the court is only required to make the correct calculation. Economic consequences are then irrelevant. When the question is the level of damages for non-pecuniary loss the court is engaged in a different exercise. As we have said, it is concerned with determining what is the fair, reasonable and just equivalent in monetary terms of an injury and the resultant PSLA. The decision has to be taken against the background of the society in which the court makes the award.”
Those observations and the distinction identified by Lord Woolf between pecuniary loss (compensated by special damages) and non-pecuniary loss (compensated by general damages) are quite consistent with the principles and further distinctions identified by the Supreme Court in Sinnott v. Quinnsworth and M.N. v. S.M.
Hence, the need for the courts to hear evidence of and to consider “contemporary standards and money values” when assessing and calculating the limit or “cap” to be imposed on awards for general damages from time to time.
It was confirmed in evidence that this country is presently enduring a period of unprecedented recession. There has been a significant drop in individual disposable income and it is anticipated that this will become more acute during the next several years. Wealth and living standards have declined appreciably and economic growth has been replaced with contraction.
Those factors are relevant to the measurement of “contemporary standards” and current “social conditions” within this country and it can be validly argued that, in general, awards of general damages should reflect such economic realities.
However, life expectancy may be a factor to be taken into account where catastrophic injuries have been suffered. It is an important factor in the calculation of special damages such as care because care will usually be required for the lifetime of the person who is catastrophically injured.
The pain and distress suffered by such persons will also be life long and general damages are intended to provide them with some measure of compensation throughout the entire duration of their pain and distress.
Today’s recessionary economic circumstances should not be visited upon the most vulnerable in society in order to regulate the damages which are intended to compensate them for the whole of the remainder of their lives.
Accordingly, awards of general damages in these cases should take into account historical evidence of economic and social fluctuations over relevant time periods so that consequent adjustments made in the measurement of general damages will be as accurate as possible.
In some cases an award of general damages will have little or no compensatory consequence for a catastrophically injured plaintiff because of the nature of the injury suffered. For instance, a catastrophically injured plaintiff reduced to a permanent vegetative condition without insight is unlikely to benefit from any award of general damages. It will be open to the court to make no award of general damages in such cases.
Although the term “cap” has been used conveniently and repeatedly in this context, the suggested limit on general damages might more accurately be described as a “guide”. Because of constantly changing social and other circumstances and because there are usually exceptions to every seemingly inflexible rule, the courts retain an inherent jurisdiction to award appropriate damages where the interests of justice so require.
The following general principles, therefore, apply to the assessment of general damages where catastrophic injuries have been suffered:
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 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.
“Contemporary standards and money values”
In 1984 the Supreme Court in Sinnott v. Quinnsworth condemned the jury’s award of IR£800,000 as “lacking all sense of reality” but did not explain precisely why it should be replaced with an award of IR£150,000 suggesting that:
“. . . ordinary living standards in the country, to the general level of incomes, and to the things on which the plaintiff might reasonably be expected to spend money” were relevant factors to be considered when seeking to identify “contemporary standards and money values”. (At p. 532).
Although it is probably unlikely that the court, in Sinnott sought to predict future economic outlooks and earning levels when fixing the “cap” at IR£150,000 it is, in my opinion, appropriate for this court to consider expert evidence of: (a) our economic and social history between 1984 and 2009 and, (b) future social and economic outlooks when seeking to review the “cap” today.
This court has had the benefit of: (i) expert evidence on this issue from Mr. Moore McDowell, who is a consultant economist with exceptionally wide academic, administrative and public service experience and, (ii) an agreed report on the topic from Professor Philip Ronan Lane who is professor of international macroeconomics at Trinity College Dublin.
I accept Mr. McDowell’s evidence that the two most important factors to be taken into account when seeking to compare and contrast today’s standards and values with those of 1984 must be: (a) inflation, which has substantially eroded the purchasing power of money between 1984 and 2009, and (b) economic growth in the economy, which has caused a substantial improvement in the overall standard of living within this country between 1984 and 2009.
(a) Inflation
I accept Mr. McDowell’s evidence that both the Consumer Price Index (CPI), which is intended to reflect what we consume, and the “Gross Domestic Product Deflator” (hereinafter the GDP Deflator), which is intended to reflect what we produce, are less than perfect measures of inflation.
However, I accept, also, his qualified evidence (and the similarly qualified findings of Professor Lane) that they probably represent a useful means of measuring inflation for many of the purposes required in this case.
The relevant statistical evidence on this issue has been confined to information available (on the CPI) up to 2008 and (on the GDP deflator) up to 2007. It is reproduced hereunder;
Inflation Measures, CPI and GDP Deflator, 1984 = 100
Year CPI Multiplier GDP Deflator Multiplier
1984 100.0 100.0
1987 112.9 113.8
1987 112.9 113.8
1990 123.9 123.0
1993 133.8 133.9
1996 140.6 138.5
2000 157.7 164.7
2001 165.1 173.6
2002 172.8 182.3
2003 178.3 187.4
2004 183.0 191.5
2005 187.2 197.1
2006 195.5 204.0
2007 204.6 2.06 2.06
2008 213.4 2.13 n/a
Based upon that evidence, the equivalent value of the sum of IR£150,000 (€190,000) in 2007 was €391,400, (applying the GDP deflator) and €388,740, (applying the CPI). In 2008 it was €405,460 (applying the CPI).
(b) Economic growth.
I again accept the evidence of Mr. McDowell (and the findings in Professor Lane’s report) that there has been substantial growth in the Irish economy between 1984 and 2009.
Mr. McDowell identified three standard of living indicators which, he believes, can assist the court to identify the: “…ordinary living standard in the country….the general level of incomes, and… the things upon which the plaintiff might reasonably be expected to spend money” between 1984 and 2008.
They are as follows: (i) Gross National Product, (ii) consumption and, (iii) average industrial earnings. The relevant statistical information in relation to those indicators is reproduced below.
Standard of Living Indicators (values in Euro)*
Year GNPper head(€’000, 1984-2007) Multiple1984-2007 Consumption**per head(€’000, 1984-2007) Multiple1984-2007 AverageIndustrial Earnings(€/hour)Multiple1984-2007
1984 5,900 4,200 5.00
1987 7,300 5,100 6.08
1990 9,100 6,200 7.71
1992 9,900 6,700 8.50
1994 11,500 7,800 8.21
1996 14,300 9,000 8.68
2000 23,500 13,600 10.30
2001 25,500 14,700 11.76
2002 27,500 15,900 12.68
2003 30,000 16,900 13.37
2004 31,600 17,700 14.02
2005 33,900 19,100 14.42
2006 37,200 20,400 15.01
2007 39,200 6.9 22,200 5.2 15.47 3.1
(i). Gross National Product
Economic growth is conventionally measured in terms of Gross National Product (GNP). The impact on average living standards is then measured by the change in GNP per head of population.
This indicator suggests that there has been a substantial increase in the overall wealth of Irish society between 1984 and 2007, with GNP per head increasing from 5,900 in 1984 to 39,200 in 2007.
Accordingly, if the increase in the overall wealth of society between 1984 and 2007 is to be used as an appropriate yardstick, then the sum of IR£150,000 (€190,000) has increased in value by a factor of 6.9 between 1984 and 2007, when it was worth €1,311,000.
(ii). Consumption
Household consumption increased from 4,200 in 1984, to 22,200 in 2007.Therefore, using a representative household’s consumption as the yardstick, the sum of IR£150,000 (€190,000) has increased by a multiple of 5.2 between 1984 and 2007, when it was worth €988,000.
(iii). Average industrial earnings
Average industrial earnings have increased from 5.00 in 1984 to 15.47 in 2007. Accordingly, if the appropriate yardstick is the income level per head of population (measured by average industrial earnings), then the sum of IR£150,000 (€190,000) has increased by a multiple of 3.1 between 1984 and 2007, when it was worth €589,000.
Professor Lane, in his report, added a range of further potential bases for calculating the rate of economic growth including indicators based upon: (a) earnings in the manufacturing and private sectors, (b) gross national income per head and, (c) disposable income per head. His findings are reproduced below:
Adjustment Factors 1984 to 2008- €190,000
Basis Factor 2008 Value
CPI 2.15 409,491
Earnings (Manufacturing) 3.34 636,652
Earnings (Private Sector) 3.81 726,077
Gross National Income per head 6.07 1,156,677
Disposable Income per head 5.34 1,016,765
Using those indicators as yardsticks the sum of IR£150,000 (€190,000) would have increased by factors varying between 2.15 and 6.07 between 1984 and 2008, giving the sum 2008 values between €409,491 and €1,156,777.
Present economic circumstances
Mr. McDowell, in evidence, pointed out that the Irish economy is presently in a state of unprecedented recession. He stated that, as of January, 2009, the consensus view of the performance of the economy was that GNP per head would fall by at least 4% and by possibly as much as 8% in 2009. He said that a further contraction of between 1% and 3% is probable for 2010, and a recovery within the economy is unlikely before the end of 2011 although it could be delayed for a further year.
Allowing for that prediction, he believes that it is unlikely that GNP per head will return to 2008 levels before 2014 or 2015. He also estimates that average earnings are certain to fall in the short term and the extent of that fall will depend upon a number of complex factors.
He 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. He did not measure the adjustment to be made.
A decline, (or increase), in national economic growth and wealth may be reflected in the level of damages awarded in personal injuries cases. Each case will depend on its particular facts and should be determined on a rational commonsense basis. The overriding consideration should be fairness to all parties.
Damages awarded in catastrophic cases are usually intended to provide compensation for lengthy periods during which domestic and global economic circumstances will inevitably fluctuate. Although the “cap” is subject to periodic review by the courts, each award of general damages is final for the recipient.
I am satisfied on the evidence that, when updating the “cap” on general damages in this case, the court should also make an appropriate adjustment to reflect a present and forthcoming reduction in wealth and living standards which is likely to continue for a period of approximately five years.
Reviewing the “Cap”
I have concluded that inflation between 1984 and 2009, with the consequent erosion in the purchasing power of money, is an important factor which must be considered in seeking to apply today’s standards and money values to the 1984 “cap” on general damages. However, it is not the only factor to be considered.
I also believe that the “cap” should be adjusted to reflect sharp economic growth in the economy between 1984 and 2009 and a resultant significant improvement in living standards during that period.
The following evidence adduced by Mr. Mc Dowell is relevant:
(a) Living standards improved and average earnings increased substantially between 1984 and 2008 whilst the purchasing power of money eroded significantly,
(b) In late 2007, this country entered a recession of such magnitude that it is likely that living standards will deteriorate and average earnings will fall in the period between 2008 and 2015, whilst the purchasing power of money will be greater.
(c) A steep rise in earnings and living standards, followed by a sharp fall in both, is consistent with historical economic fluctuations recorded worldwide over long periods of time.
As a first step the court should apply the appropriate inflation index to the 1984 “cap” in order to identify a figure which is largely independent of other economic circumstances between 1984 and 2009. That requires the application of either the CPI or the GDP deflator.
Based upon the application of the CPI, the equivalent value in 2008 of the 1984 “cap” of IR£150,000 (€190,000) was approximately €400,000.That figure may be slightly downwards biased for reasons identified in evidence. The application of the “GDP deflator” gives a broadly similar result
There was a threefold increase in income level per head of population between 1984 and 2007. Living standards improved by factors varying between 5.2 and 6.9 during the same period. Those factors are relevant to the identification of: “…ordinary living standards in the country, to the general level of incomes, and to the things upon which the plaintiff might reasonably be expected to spend money” (see Sinnott v Quinnsworth at p. 532).
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% 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 commonsense 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.
Proportionality
As I have indicated earlier, there should 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 and other bodies established by the State to award general damages for particular categories of injuries.
(a) Relevant Court Awards
On the 26th July, 2001, O’Sullivan J. concluded in the case of McEneaney v. Monaghan and Coillte Teoranta County Council and Ors. (Unreported, High Court, O’Sullivan, J., 26th July, 2001) that:
“a reasonable equivalent to the IR£150,000 for general damages in Sinnott v. Quinnsworth Limited in today’s money would be IR£300,000” (€380,000) adding that he might be erring “on the side of conservatism”.
In March, 2005, Denham J. in M.N. v. S.N. reduced a jury award of €600,000 to €350,000 to compensate a teenage girl for sexual assault, sexual abuse and rape noting that €350,000 was “at the higher end of the range of awards of general damages in personal injury actions generally”.
A present equivalent “cap” of €450,000 is not inconsistent with those, or indeed most recent authorities.
(b) Statutory bodies
Personal Injuries Assessment Board
When assessing damages in personal injuries cases the courts are required by s. 22 (1) of the Civil Liability and Courts Act 2004 to have regard to the ‘Book of Quantum’ (described as a “ guideline of injuries and related values”), which was prepared and published by the Personal Injuries Assessment Board.
The ‘Book of Quantum’ in June, 2004, recommended awards of “up to €300,000” to compensate for ‘spinal cord injuries’ identified as “quadriplegia” and “paraplegia”, noting that:
“The courts set the maximum compensation with the exact value being based on a number of considerations: (a) level of movement, (b) level of pain and suffering, (c) depression – level of achievable rehabilitation, and (d) age and life expectancy”.
Three years earlier, in July, 2001, O’Sullivan J. in McEneaney, had assessed the “cap” on general damages at IR£300,000 (€380,000), adding that:
“I cannot accept . . . that a paraplegic, no matter how aware he is of his condition or how long his life expectancy . . . is in the same category as a quadriplegic”
An adjustment to take into account an increase of 16% in the CPI between 2004 and 2007 would increase the Board’s 2004 guideline from €300,000 to €348,000. There were increases also, between 2004 and 2007, in GNP per head, (25%), consumption, (25%), and average industrial earnings, (10%).
The Board’s “guideline” for “spinal cord injuries” in 2004 was somewhat less than the 2004 equivalent of the 1984 “cap” (after adjustment for inflation) and less than recent court awards for catastrophic injuries. However, its Book of Quantum expressly recognises the jurisdiction of the courts to “set the maximum compensation” in such cases.
Redress Board
The Redress Board, established pursuant to the provisions of the Residential Institutions Redress Act 2002, established a system for the assessment of damages to be awarded for the sexual assault or abuse of children in State care.
It provides for awards up to €300,000 and contemplates higher awards in cases deemed to be “exceptional”.
Having regard to the specialised nature of its work I would respectfully adopt the view expressed by Denham J. in M.N. v. S.M. that the system, whilst informative, should not be regarded as setting a precedent in respect of the assessment of general damages for personal injuries generally.
Conclusion
Having applied the criteria and principles identified in Sinnott and subsequent authorities, I am satisfied on the evidence that the present equivalent value of the 1984 “cap” of IR£150,000 (€190,000) is €450,000. This sum, (assuming normal life expectancy, an annual return of 3% and current tax rates), represents the capital value of an annual payment of approximately €17,000, (a factor considered relevant by the Supreme Court in Sinnott).
As I have indicated the limit or “cap” on general damages might more usefully be described as a “guide”. It is simply the present threshold beyond which further monetary compensation for a catastrophically injured person has probably become relatively meaningless. It is not a yardstick against which other awards of general damages should, necessarily, be measured.
The plaintiff’s general damages.
The plaintiff has suffered an injury of the utmost gravity. She is entitled to recover substantial damages to compensate her for the near total destruction of her life and lifestyle during the past eight years. Those should have been amongst the most valuable years of her young life.
She is also entitled to substantial damages to compensate her for the pain, suffering and disability which she will endure in the future and the loss of many of her future hopes and aspirations.
However she cannot be categorised as a person who has been so catastrophically injured that she should be awarded the maximum level of general damages payable within this jurisdiction.
She has significant mobility and is capable of walking (with assistance). She will now receive much needed medical care and assistance including pain management and psychological treatment. This will help her to achieve an acceptable level of comfort which will enable her to participate, to some extent, in everyday life events.
I am satisfied that she is entitled to recover general damages of €125,000 to compensate her for pain, suffering and loss of life and lifestyle between the date of her injury and the date of the trial.
I am awarding her further general damages of €200,000 to compensate her for the pain, suffering, disruption and loss of life and lifestyle which she will endure for the remainder of her life.
The plaintiff’s loss of earnings.
It has been contended on behalf of the plaintiff, that the evidence has established that, if she had not suffered her injury, she would probably, (a) have completed her English language studies within approximately eighteen months, (b) have graduated as a certified accountant within a further six years or thereabouts, and, (c) have been capable of obtaining remunerative employment within this jurisdiction or within the European Union at the end of 2009 or in early 2010.
It is also contended that her boyfriend, Tony Cao Zhi , would probably also have graduated and obtained remunerative employment and that the two would probably have married and started a family, either in this country or elsewhere within the European Union.
The defendants argue that no adequate evidence has been adduced from which the court can find that the plaintiff would have graduated as a qualified certified accountant within the suggested time or, indeed, within any reasonable time limit.
Ms. Lydon S.C contends that, if the plaintiff had not suffered her injuries she would probably have been unable to secure permission to remain within this jurisdiction and would have been obliged to return to China within a relatively short time after May, 2002. She points out that the plaintiff’s grasp of the English language remains very limited notwithstanding her attendance at an American College in Dublin.
In April, 2002, one month before the collision which caused her injury, the plaintiff commenced a course in the English Language Institute on St. Stephen’s Green, Dublin. Her investment of the sum of €2,000 for that purpose was a measure of her determination to bring her understanding and use of the English language to a level which would enable her to commence the full study of accountancy in English.
I am satisfied on the evidence that, if she had not suffered her injury, it is probable that she would have successfully completed her course and commenced a three-year accountancy degree in either University College Dublin or Grace’s College Dublin some time in the year 2003.
I am not satisfied that she has established, on the evidence and on the balance of probabilities, that if she had not suffered her injuries she would have graduated as a certified accountant.
I believe that she has established, on the evidence that if she had not suffered her injuries, she would probably have completed a three-year accountancy degree course in either University College Dublin or Grace’s College, and at a minimum, have acquired a sufficient level of proficiency and qualification in accountancy to enable her to secure full-time employment in accountancy in this jurisdiction by 2007 or 2008.
I am satisfied, on the evidence, that when she arrived within this jurisdiction, she did so as a determined and committed young woman who had a very clear objective and who had invested her time and her resources in the pursuit of a career in accountancy. The evidence has established that if she had not been so gravely injured she would probably have gone a considerable way towards achieving her objective.
I am satisfied that after graduation she would probably have continued to pursue her objective of improving her level of competence as an accountant and would probably have had some success in doing so, but without achieving her objective of qualifying as a certified accountant.
I accept her evidence that she would have continued in part-time employment between May, 2002, and the date of her graduation from either University College Dublin or Grace’s College Dublin. Her student visa permitted her to work on a full-time basis also (during school holidays) and she had hoped to do so.
At the time when she suffered her injury, she was working, as a cleaner, for twenty hours every week at a rate of €8 per hour.
She would probably have continued to earn that level of remuneration as a part-time worker between the date of her injury in May, 2002, and the date of these proceedings. She has suffered a loss which I would estimate at €50,000 in respect of those earnings. She is entitled to recover that sum as damages from the defendants.
Evidence adduced on behalf of the plaintiff by Mr. Roger Leonard, who is an occupational therapist and vocational evaluator, indicated that a 2008 salary survey for the Dublin area disclosed salary levels for accountants in practice which ranged from €40,000 per annum for a new member in practice to €300,000 per annum for a partner.
The survey disclosed that the level of earnings for a trainee accountant was between €22,000 and €28,000 per annum. Newly qualified accountants, internal auditors, cost accountants and management accountants earned remuneration in the range of €45,000 to €60,000 per annum.
Ms. Paula Smith, who is a vocational rehabilitation consultant, testified on behalf of the defendant. She estimated that a trainee accountant in 2007 earned between €28,000 and €32,000 per annum, whilst assistant cost accountants earned from €38,000 to €40,000 per annum. Credit control managers earned an average of €40,000 to €60,000 per annum. Management accountants earned more than that.
The average range between the lowest earnings of a trainee accountant (€22,000 per annum) and the highest earnings of a newly qualified accountant in 2008 (€52,000 per annum) is €37,000 gross per annum or approximately €596 per week.
On the evidence of Mr. Mc Dowell those earning levels have significantly reduced during the recent past and are likely to reduce further. Unemployment has greatly increased and employment opportunity is limited.
I am satisfied that if the plaintiff had not been injured, she would probably have obtained employment in 2008 at a remuneration level in the region of €450 per week. The capital value of that loss to the plaintiff, if she remained in continuous employment as an accountant until she reached the age of sixty-five years, is €522,950.
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.
Allowing for those discounts I will award the plaintiff the sum of €350,000 to compensate her for earnings which she would have achieved in the future if she had not suffered her injury
The plaintiff’s care costs.
Ms. Mary Breslin, who is an expert in the recruitment of nursing and caring staff, stated in evidence that the rates of remuneration for carers in 2008 was €21 per hour (for three hours or more each day).
It was Ms. Breslin’s view that the plaintiff presently requires the assistance of a carer for three hours in the morning and a further three hours in the evening because she needs assistance in dressing, bathing, cooking and shopping. She also stated that the plaintiff requires a cleaner for three hours twice weekly (at a cost of between €13 and €15 per hour) to maintain her accommodation.
Since it is unlikely that the plaintiff’s condition will improve, I am satisfied that she will require professional care for a minimum of four hours every day, seven days every week, at a current cost of €21 per hour (€558 per week).
The capital value of that care for the remainder of the plaintiff’s life will be just in excess of €800,000. The plaintiff will also be required to pay for cleaning for approximately six hours per week and must pay for her carer’s replacement for three weeks holidays each year.
Actuarial calculations in respect of the capital cost of care, cleaning and housekeeping etc., are intended to assist the court to understand the scale of daily, hourly or weekly costs. They are not intended to represent the precise calculation of the costs which will actually be incurred.
On the evidence in this case, I am satisfied that the plaintiff is entitled to recover the sum of €900,000 to compensate her for the costs which she will incur in the provision of daily care, annual carer holiday replacements, and weekly housekeeping for the remainder of her life because of her injury.
She has required continuous and comprehensive care from the time when she suffered her injury in May, 2002, up to the present time. That care has been provided in an exemplary manner by her boyfriend, Tony Cao Zhi, continuously, for more than seven years.
The plaintiff is entitled to recover damages to enable her to repay Mr. Cao Zhi for the invaluable, continuous care which she has received from him.
The cost of professional care for four hours every day from the 9th May, 2002, to the 12th December, 2008, has been calculated at €174,916. Mr. Cao Zhi provided far more than four hours care each day to the plaintiff during the past seven years.
When awarding damages for past care provided by parents and family members it has been the practice of the courts to apply remuneration rates significantly less than those which apply to the provision of professional care. It has never been entirely clear to me why that should be the case. Usually the care provided by parents and family members is commensurate with professional care standards. Often it exceeds those standards.
However, adopting that practice, I am awarding the plaintiff the sum of €85,000, which is somewhat less than 50% of the cost of the very least amount of professional care which the plaintiff has required during the past eight years.
As I have indicated, I am satisfied, on the evidence, that in addition to care, the plaintiff will require significant psychological treatment in the short-term and indefinite pain management. I am awarding her the sum of €100,000 to compensate her for the future cost of that medical treatment.
Damages will, therefore, be awarded in total as follows:
1. Agreed Special Damages to date: € 14,380.12
2. Fee paid to English Language Institute € 2,000.00
3. Loss of earnings to date: € 50,000.00
4. Loss of earnings in the future: €350,000.00
5. Care to date: € 85,000.00
6. Care, housekeeping, etc. in the future: €900,000.00
7. Psychological treatment and pain management
in the future: €100,000.00
8. General Damages to date: €125,000.00
9. General Damages in the future: €200,000.00
Total: €1,826,380.12
Vernon v Colgan
[2009] IEHC 86, Laffoy J.Judgment of Miss Justice Laffoy delivered on the 20th day of February, 2009.
Liability is not in issue in these personal injuries proceedings which arise out of a road traffic accident which occurred on 12th August, 2003. On that occasion, the plaintiff was driving his employer’s van while out on a work call when the defendant’s vehicle, while overtaking another vehicle, came around a bend on the incorrect side of the road and collided head-on with the plaintiff.
The plaintiff, whose date of birth is 15th February, 1954, suffered some physical injuries as a result of the collision but the long-term sequelae are of a psychiatric and psychological nature.
The only evidence of the plaintiff’s physical injuries before the Court are the reports of Dr. Dominick Cooke, Consultant Physician and Rheumatologist, dated 16th October, 2003 and Dr. Edel Twomey of the Abbey Medical Centre, the plaintiff’s general practitioner, dated 21st January, 2004, and the plaintiff’s testimony.
Following the accident the plaintiff was taken by ambulance to University College Hospital, Galway. He was treated for a head injury and detained for observation for three days and subsequently discharged. Dr. Cooke described his physical injuries as extensive bruising, an abrasion on his scalp, bruising across his chest, where he was restrained by the seat belt, and generally stiff and sore all over.
The plaintiff was re-admitted to University College Hospital on 26th August, 2003 and detained for a further nine days for further investigation. Both Dr. Cooke and Dr. Twomey in their respective reports refer to the prognosis as being “very guarded”, but that opinion clearly relates to the post-traumatic stress disorder which was diagnosed early on during the plaintiff’s treatment in University College Hospital. On the evidence, the plaintiff appears to have received no medical treatment for his physical injuries after January 2004, although his own evidence was that he received physiotherapy for eighteen months. Therefore, I conclude that, as described by his psychiatrist, Dr. Hugh Nalty, who first saw the plaintiff on 5th September, 2003, his head and neck injuries were “superficial”. I am satisfied that the plaintiff’s physical injuries cleared up within a short time after the accident and that he is physically fit and has been for the bulk of the period since the accident.
In relation to the plaintiff’s psychiatric and psychological injuries, two reports of Dr. Nalty were admitted in evidence, the earlier dated 23rd January, 2004 and the later, dated 12th February, 2009, which coincided with the hearing of the assessment of the damages to which the plaintiff is entitled at the High Court sittings in Galway. The Court has also had the benefit of four psychological reports from Ms. Deirdre O’Donnell, Senior Clinical Psychologist with Clare Mental Health Service which is operated by the HSE, who has been treating the plaintiff since he was referred to her by Dr. Nalty in September, 2003.
Dr. Nalty, in his first report stated that the plaintiff had serious psychological symptoms following the accident. He became depressed, anxious, agitated and emotionally labile. He exhibited increased arousal, suffered from flashbacks and he appeared frightened and suspicious when re-living the event. Irritability and insomnia were also present. Dr. Nalty stated that the plaintiff had no previous history of psychological problems, but major life events occurred in 2003 prior to the accident which left him vulnerable, in that he lost his job, his home was seriously damaged by fire and his father died in April of that year. Dr. Nalty diagnosed the plaintiff as suffering from post-traumatic stress disorder precipitated by the collision. He referred the plaintiff to Ms. O’Donnell for psychological assessment and treatment. He also prescribed medication, including an antidepressant, Lustral, and an anxiolytic, Xanax. Dr. Nalty also reported that the plaintiff was removed from his home situation and placed in a psychiatric hostel in Ennistymon. The plaintiff was in the hostel, Prague House, which I understand is operated by the HSE, for four months from September to December 2003. While there, he attended a day centre in Ennistymon for support. Ms. O’Donnell referred to the plaintiff’s placement in Prague House as being unusual, which I have no doubt points to the severity of his condition. On the plaintiff’s own evidence I am satisfied that his stay in Prague House was a very distressful experience.
In concluding his first report dated 23rd January, 2004, Dr. Nalty stated that the plaintiff had gradually improved on the treatment but he still had some psychological problems. He anticipated that the plaintiff would continue attending the psychological and out-patients services of Clare Mental Health Service, as post-traumatic stress disorder could be very slow to respond to treatment and might be subject to relapse.
As I understand the position, Dr. Nalty’s primary involvement with the plaintiff thereafter was primarily concerned with prescribing medication for the plaintiff. The plaintiff has remained on Lustral and Xanax to date and, in fact, the prescribed dosage of both medications has increased. Ms. O’Donnell’s evidence was that an attempt to reduce the dosage of Xanax in April/May 2008 had adverse consequences. Her evidence was that if the plaintiff was off the medication he would not be capable of functioning.
In his final report, Dr. Nalty highlighted the changes which the post-traumatic stress disorder have wrought in the plaintiff’s life: his admission to Prague House and his attendance at the day centre; the fact that he lost his job; the fact that he is unable to drive, which was an essential element of the job he had prior to the accident; the fact that he was unable to get a mortgage to build a new house as he had planned before the accident; the fact that his symptoms prevented him from working except to a limited extent and he is currently unemployed; the fact that his relationship with his partner broke up and they are separated for three years; and problems with his children for which the plaintiff feels responsible.. Dr. Nalty concluded his final report by stating that, at the moment, some symptoms still remain, e.g. panic attacks, startled response and depression accompanied by low self esteem. He commented that the plaintiff had been suicidal in the past and he suffers from insomnia. He has constant nightmares, but not as bad as they were. The plaintiff continues under Dr. Nalty’s care.
The plaintiff has had very frequent and intense treatment from Ms. O’Donnell since she first saw him on 23rd September, 2003. Between that date and 26th January, 2006 she saw him on 47 occasions. Thereafter up to the present time she has seen him on average once a fortnight. She described the sessions, which last for one hour, as intense. Initially her attempts to engage the plaintiff in therapy were difficult because he arrived in a distressed state and it could take ten to fifteen minutes to calm him down.
The plaintiff’s progress over the five and a half years during which he has been receiving treatment from Ms. O’Donnell can be traced as follows:-
(1) Her initial assessment of the plaintiff was on 23rd September, 2003. His scores on the Beck Depression Inventory (B.D.I.) placed him in the severely depressed range of functioning. His score on the General Health Questionnaire (G.H.Q.), which measures current levels of emotional distress, placed him in the severe range of emotional distress. His scores on the Impact of Event Scale (I.E.S.), which measures current levels of emotional distress in relation to past trauma, indicated strong avoidance behaviour and intrusive thoughts in relation to the accident on 12th August, 2003. Ms. O’Donnell’s diagnosis was that the plaintiff was suffering from post-traumatic stress disorder. At that stage, due to the severity of his presenting problems, the plaintiff was seen on a weekly basis for Cognitive Behavioural Therapy and Eye-Movement Desensitization and Reprocessing. In all he had nineteen sessions up to 8th April, 2004.
(2) The plaintiff was re-assessed on 8th April, 2004. His scores on the B.T.I. placed him in moderately depressed range of clinical depression, indicating a slight improvement in his overall effect from September. On the G.H.Q., his scores placed him in the borderline range of emotional distress and indicated a significant improvement. His scores on the I.E.S. showed only a minor improvement. At that stage Ms. O’Donnell categorised the plaintiff’s post-traumatic stress disorder as moderately severe.
(3) Over the succeeding 22 months, the plaintiff was seen by Ms. O’Donnell on 27 occasions. On assessment on 26th January, 2006 his scores on the B.D.I. were in the moderately depressed range, but indicated an improvement on the scores obtained in 2004. His scores on the G.H.Q. indicated a significant improvement on previous scores obtained in April 2004 and were in the normal range of functioning. His scores on the I.E.S. remained elevated but were less intense than they had been in 2004. In summarising the plaintiff’s condition at that stage, Ms. O’Donnell stated that he was making slow, but steady, progress in his recovery. He was exhibiting fewer negative symptoms of post-traumatic stress disorder and was more positive in his outlook towards the future. She identified the only remaining negative issues in relation to his condition as hypersensitivity to noise and his specific anxiety towards car travel. At that stage she envisaged that overall he would make good recovery from his condition.
(4) Ms. O’Donnell next reported on the plaintiff on 28th September, 2007. In the interim he had attended for psychological intervention on an ongoing basis. At that stage Ms. O’Donnell’s assessment was that there was no evidence of depression and the plaintiff’s anxiety levels were improved. However, she noted that he still remained on both antidepressant and anxiolytic medication and would remain on such medication for the foreseeable future. His feelings in relation to the accident were still negative, although she noted that his confidence had been boosted because of his occupational activities, to which I will return later.
(5) Ms. O’Donnell next reported on the plaintiff on 25th August, 2008 in what she optimistically described as her final report. At that stage, the plaintiff’s case was due for hearing during the October 2008 sessions in Galway. However, it was not heard. In August 2008 Ms. O’Donnell assessed the plaintiff on the B.D.I., on which his scores placed him in the moderate range of clinical depression, and on the I.E.S., on which his scores remained elevated.
Ms. O’Donnell’s opinion at that stage was that the plaintiff’s self esteem had improved somewhat due to occupational opportunities. However, against previous expectations and prognosis, there had been no observable improvement in his hypervigilance to noise, or in his attitude to car travel. Given that he had five years of therapy, she considered this to be a very disappointing outcome. Her opinion was that he was suffering from chronic post-traumatic stress disorder and his overall prognosis is poor.
(6) Ms. O’Donnell’s final communication to the plaintiff’s solicitors was a letter dated 20th January, 2009, in anticipation of the hearing of the plaintiff’s case in February 2009. In that letter she stated that the plaintiff’s psychological status remained unchanged and that he was unlikely to improve for the foreseeable future.
Ms. O’Donnell’s evidence was that she hopes to continue to resume the plaintiff’s therapy at the conclusion of these proceedings. In relation to his hypersensitivity to noise and to sudden movement, she proposes to try some different techniques. In relation to the plaintiff’s inability to drive, her evidence was that while she has succeeded in desensitizing him to the extent that he will sit behind the driving wheel in a car, driving on the main road is not possible because of fear of oncoming traffic. In general, in relation to the plaintiff’s ability to work in the future, Ms. O’Donnell’s evidence was that full-time employment was not a viable option. He is only capable of part-time employment in a sheltered environment where noise is controlled and there is little intrusion from other people. In relation to his complaints of fatigue, which he experienced while in part-time work, she ascribed that to the fact that he is taking Xanax.
The defendant did not adduce any evidence and, in particular, the defendant did not adduce any expert evidence on the plaintiff’s psychiatric condition and prognosis, although, at the behest of the defendant he was seen on two occasions by a Consultant Psychiatrist, Dr. Mary McInerney.
During the course of the hearing there were two unusual outbursts by the plaintiff in Court which it is necessary to comment on. There was an outburst from the plaintiff shortly before the lunch adjournment on 12th February, 2009 while he was being cross-examined by counsel for the defendant. There was nothing provocative about the cross-examination, which was being conducted in a restrained and proper manner. Ms. O’Donnell, who observed the outburst, put it down to the fact that, at that stage, the plaintiff had been in the witness box for two hours and was overwhelmed by questions and was exhausted. Ms. O’Donnell was not present for the more extreme outburst on the following day which occurred while the plaintiff was sitting at the back of the Court while Mr. Peter Byrne, Actuary, was giving evidence, after a previous noisy walkout. After a break of over one hour, the Court was informed that the plaintiff was happy for the case to go ahead without him being in Court. As I understand the position, no question has ever been raised by his treating practitioners or anybody else that the plaintiff does not have capacity to give instructions in relation to the conduct of this case or the management of his affairs generally. However, because of those episodes, I am taking more care in this judgment to outline the basis of my decision than I would normally consider necessary.
I have already set out Ms. O’Donnell’s evidence as to the plaintiff’s ability to work in the future. Evidence as to his qualifications, his work record and his employment prospects in the future was given by Michael J. Bruen, Occupational Assessor.
The plaintiff, who is English, lived in England until 1995. He obtained a Diploma in Speech and Drama in 1976, which qualified him to teach speech and drama. He worked in community theatre on and off until 1984, when he decided on a career change. He then took up employment as a trainee electrician. In 1987 he got City and Guilds Certificates in Electrical Engineering and Installation. Thereafter, until 1995, he worked as an electrician in England, first on a self employed basis and later as an employee of a local authority providing electrical maintenance and repair services to elderly and disabled tenants of the local authority.
The plaintiff came to reside in Ireland in 1995 with his partner, who is Irish, and his two children who are now aged 18 and 16. Until 1999 the family lived in the Dublin area and the plaintiff was involved in electrical maintenance work on a self employed basis. The family moved to County Clare in 1999. Until 2002 the plaintiff continued to work on a self employed basis but had difficulty in making a living. In fact, in the tax years from 1997/1998 to 2002 the plaintiff, who was self assessed for tax purposes, made nil declarations in each year.
In 2002 the plaintiff took up employment with the Lynch Hotel Group as an assistant to the regular maintenance operator. He was employed in Haydens Hotel, Ballinasloe, for nineteen weeks from October 2002 to February 2003, during which his gross earnings for tax purposes were €12,619.00. He had a further four week period of employment at the West County Hotel, Ennis, during April and May 2003, during which his gross earnings were €2,646.00. In both instances, the plaintiff had been employed because refurbishment works were being carried out in the hotel in question. He was laid off in each case after the refurbishment work had completed. The plaintiff was then unemployed until he took up employment with Michael Murray, trading as Elektro Spares and Service Centre, Galway. That business is involved in the maintenance and repair of domestic appliances, white goods, manufactured by major electrical manufacturers such as Electrolux. The plaintiff was employed as the maintenance engineer on a three to six months’ probationary period. He had been employed for about five weeks when the accident occurred. After the accident his employment was terminated. His former employer, Mr. Murray, testified. His evidence was that he could not remember any problem in relation to the plaintiff which would suggest that he would not complete his probationary period.
Unlike many businesses, Mr. Murray’s business is thriving due to the economic downturn, because customers are more inclined to repair an appliance rather than replace it.
Since the accident the plaintiff has made genuine efforts to rehabilitate himself. He has attended various courses sponsored by FAS and other organisations. In 2004 he achieved an E.C.D.L. certificate in computer applications. He has also attended courses in disability awareness and training. Since the accident the plaintiff has had some gainful employment. Between April 2006 and July 2007 he worked in a toy shop, World of Wonder, in Ennis, assembling children’s bicycles, swings and suchlike. This employment was under a supported employment programme for disabled persons for sixteen hours per week at minimum rates. Thereafter, from October 2007 to December 2008 he worked in drama workshops under the aegis of various charitable and public organisations such as The Brothers of Charity Services, Clare Education Centre and Enable Ireland. That work has, unfortunately, come to an end because public funding has been cut. In the five and a half years since the accident, the plaintiff’s total earnings have been €21,927.00.
Mr. Bruen’s evidence was that the plaintiff, who is now 54 years of age, is restricted occupationally. He did not see him as being able to resume his pre-accident employment, because of his psychiatric and psychological symptoms and his lack of capacity to drive, to deal with customer complaints and demands and to work under pressure. His opinion was that the plaintiff could probably engage in work activity of a physically and psychologically undemanding nature in a noise free environment for a period of up to sixteen hours per week. He put the plaintiff’s earning capacity for the foreseeable future at between €173.00 and €193.00 per week gross. Understandably, he was not optimistic of the plaintiff getting regular work in the area of “process drama” because of current economic conditions and, in any event, he did not think that such work would be available on a full-time basis.
Special damages, apart from loss of earnings, have been agreed at €3,771.00.
The difficult aspect of this assessment is measuring the compensation to which the plaintiff is entitled for loss of earnings, because of his poor earnings record in the eight years leading up to the accident and the fact that he had been in employment for Mr. Murray for only a few weeks at the time of the accident. The computation of the loss of earnings to date and Mr. Byrne’s actuarial calculations of loss of earnings into the future have been based on the assumption that the plaintiff’s current earnings would be in the region of €35,500.00 gross per annum, equivalent to €580.00 per week net, based on the current average earnings of a service engineer derived both from basic pay and productivity bonus, and that he would have been, and would continue to be, in permanent employment at that level of remuneration.
The crucial questions on the assessment of the loss of earnings are, first, what the plaintiff’s earnings would have been if he had not suffered the injuries he sustained in the accident and, secondly, what is his capacity to work and earn in his post accident state.
Having regard to the psychiatric and psychological evidence, I am satisfied the plaintiff suffered a very severe life changing injury, which has resulted in the loss of his partnership of twenty years and the break-up of his family, and has affected his capacity to earn. In my view, on the basis of the “eggshell skull” principle that injury is wholly compensatable by the defendant. Since the accident the plaintiff has done as much as could reasonably be expected to earn a living. As regards to the future, Ms. O’Donnell acknowledged that there should be some improvement in his condition when his financial position improves and these proceedings and the associated stress are behind him. However, Ms. O’Donnell’s assessment that his condition is chronic and that his overall prognosis is poor and her opinion as to his capacity to earn a living in the future have not been contradicted. My assessment is based on her evidence.
On the basis of his pre-accident history, I think it improbable that, had he not been involved in the accident, the plaintiff would have remained in employment earning wages at the level which underlie Mr. Byrne’s calculations (€580.00 per week net currently) continuously from the date of the accident to date and continuously into the future until, say, retirement at age 65. That is the crucial factor in the assessment of loss of earnings. Apart from his personal circumstances, the Court is required to take into account in assessing his loss of earnings the type of contingencies recognised by the Supreme Court in Reddy v. Bates [1983] I.R. 141, for example, ill-health, economic downturn resulting in redundancy, unemployment and suchlike. The fact that, for the moment, the domestic appliance maintenance sector may be recession proof does not carry much weight against those factors.
As is frequently stated, assessment of damages in personal injuries actions is not an exact science. The Court’s function is to reach a fair and reasonable overall assessment. In relation to loss of earnings to date, I think the appropriate figure is €70,000. In relation to future loss of earnings, I consider the figure should be €120,000. In relation to general damages, in my view, the appropriate figure is €175,000 made up of €100,000 for pain and suffering to date and €75,000 for pain and suffering in the future.
Accordingly there will be an award in the sum of €368,771.
Mullen v Minister for Public Expenditure and Reform
[2016] IEHC 295
UDGMENT of Mr. Justice Bernard J. Barton delivered on the 5th day of May, 2016
1. The Applicant was born on the 28th of May 1978. He is married and resides at Slieve Bracken, Gortlee, Letterkenny, Co. Donegal. On the 9th August, 2009 at or near James Street car park, Westport, Co. Mayo, the Applicant was the victim of a vicious assault and battery. That the resulting injuries and loss were inflicted maliciously is not in question and on the 17th June 2015, the Respondent authorised the bringing of these proceedings.
Background
2. The Applicant comes from Tuam, Co. Galway. He realised his ambition of becoming a police officer when he passed out of Templemore in 2002. He was a very physically fit young man; being a regular attendee at his local gym and a committed participant in Gaelic football and soccer. A marriage in 2004 did not last and was subsequently annulled. He met his present wife, also a member of the force, in 2008. They married in 2013 and have started a family.
3. On the date of the assault the Applicant was on plain-clothes duty with a unit of the drugs squad in Westport where a street festival was taking place. There were a large number of people in the town. He and his colleagues were involved in carrying out searches for illicit drugs. The Applicant saw a group of young men behaving suspiciously. He identified himself as a police officer; the group scattered and, as it did so, he ran after one individual who appeared to be holding a suspicious implement under his arm. Just as the Applicant caught up with the assailant and was attempting to grab hold of his arm, the assailant produced a knife which he drove into the left hand side of the Applicant’s abdomen; repeating that action several times causing horrific internal injuries in the process.
4. The Applicant began to bleed profusely and developed hypovolemic shock. He was rushed to the operating theatre of Mayo General Hospital where he underwent an emergency laparotomy. This disclosed massive inter-peritoneal bleeding together with a laceration to the splenic pedicle and spleen, a large laceration to the splenic flexure of the colon, two lacerations in the distal part of the jejunum, a laceration of the mesentery of the colon and a retro-peritoneal haemorrhage. An emergency splenectomy, a repair of the colonic laceration and a small bowel resection with anastomosis, which was covered with a proximal loop ileostomy, was carried out.
5. Following surgery the Applicant was transferred to the intensive care unit where he remained for a week before being transferred to the surgical ward. A CT scan of the 11th August, 2009 showed a collapsed consolidation of the basal aspects of both lower lobes of his left lung with prominent pleural effusion. The knife entry wound, measured at 7cm, became infected and although he was discharged home from hospital on the 26th August, 2009, the Applicant had to be readmitted 3 days later. A further CT scan taken on the 1st of September showed an increase in the size of the splenic bed haematoma together with an interior abdominal wall sepsis secondary to the infection. This was treated with IV antibiotics. A pig-tail drain was inserted in the left upper quadrant in the bed abscesses. Chest physiotherapy was also commenced. A further pig-tail drain was inserted in the left pleural effusion on the 4th September, 2009.
6. At medical review on the 22nd September, 2009, the pig-tail drains were still discharging significant quantities of pus notwithstanding ongoing chest physiotherapy and IV antibiotics and as a result of which the Applicant was transferred to University College Hospital, Galway. On the 6th of October 2009 a left pleural decortication was performed. In evidence the Applicant described this procedure as being particularly painful. It transpired that he had developed MRSA in the operative wound whilst in hospital; one of the consequences was a loss of approximately three stone in weight.
7. The Applicant underwent an elective closure of his loop ileostomy on the 20th March, 2010. Initially the restoration of his intestinal continuity produced a positive response in bowel function. Unfortunately that was not maintained, became problematic, and requires ongoing treatment with medication. He regained weight but continued to suffer from epigastric discomfort as well as pain in his right shoulder, right hip and lower back. He also developed a lump in the upper left flank which was described as being roughly the size of a golf ball and which would protrude intermittently on certain movements. When provoked, this protruding lump would appear suddenly but just as suddenly would disappear. Difficulty was experienced in finding a comfortable position especially when sitting or sleeping. As a consequence of the splenectomy the Applicant required and was commenced on life long vaccination against infection.
8. As he mobilised and gradually recovered from the serious infection at the site of the main operation wound, the Applicant became more conscious of the pain which he was experiencing in his back, right hip and right shoulder in addition to his abdomen and chest symptoms. These problems were treated with intensive physiotherapy and physical exercises, including cycling; all as part of a rehabilitation program. However, he was unable to return to his hobby of swimming because he found that swimming strokes aggravated his right shoulder pain.
9. There is no issue between the parties as to the seriousness of the physical injuries. In that regard the Court has had the benefit of a number of medical reports which were admitted into evidence. Those for the Applicant were prepared by Mr. Khalid Asgar, Consultant Locum Surgeon, Mr. Mark Regan, Consultant General and Gastrointestinal Surgeon, Mr. Mark da Costa, Consultant Cardio-Thoracic surgeon, Mr. David O’Gorman, Pain Management Consultant, Dr. John F. Connolly, Consultant Psychiatrist, Mr. Peter Murphy, Consultant Psychologist, Mr. Eamon Rogers, Consultant Urologist, Dr. Enda Harhan ,GP, and Dara Dunne, Chartered Physiotherapist. The reports for the Respondent were prepared by the Chief Medical Officer and Dr Patrick Devitt, Consultant Psychiatrist.
10. Towards the end of 2010 and early 2011 the Applicant had recovered to a point were he was anxious to return to work. He was still suffering from painful symptomology, including involuntary spasms in the area of his left abdomen and chest which could occur on a varying number of occasions during the day. In addition to his physical symptomology, he had also developed significant physiological problems for which he was referred to Dr. John Connolly. When first reviewed by him in February 2010 it was noted that the Applicant complained of irritability, a lack of energy and motivation, disturbed sleep, feelings of being depressed, intrusive thoughts about the assault as well as anxiety and fears for the future. These problems were treated with a combination of medications to which there was an initially positive response. Unfortunately for him the Applicant also experienced certain well-known medical side effects from the medication including erectile dysfunction, which in itself was the cause of distress especially as the Applicant and his wife were anxious to start a family.
11. In February, 2011 the Applicant was certified fit to return to light duties. He applied for and was successful in being assigned to the position of Detective Garda. He was hopeful that his symptoms would gradually improve, especially once he had returned to work. However, his hopes were not to be realised. He continued to suffer from muscle spasms and had developed problems with his gall bladder as well as a left sided hernia. Mr. Regan was hopeful that further surgery, carried out in October 2011, to deal with these difficulties, would prove beneficial. The hernia was repaired and the gall bladder removed. Once again there was an initially positive response to these procedures until the Applicant began to mobilise post-operatively, the muscle spasms returned in a way which he described as being “worse than ever”.
12. In early 2012 he re-attended Mr Regan with a view to ascertaining whether there were other surgical options to deal with the ongoing problems. He was advised that muscle tissue could be removed but that that procedure would likely be associated with other problems. His evidence was that he felt Mr. Regan’s preferred treatment option was pain management.
13. The failure of the surgery carried out in late 2011 had devastating psychological consequences for the Applicant, not the least of which was that he never again obtained a fitness certificate to return to work. Ultimately he felt obliged to seek a discharge from the force on the grounds of ill health. His application in that regard was supported by the Chief Medical Officer and by Dr. Patrick Devitt.
14. Because of his fear of bodily intrusion by any implements, which developed after the assault, pain-killing injections – which the Applicant receives three to four times per year – are administered under general anaesthetic. The relief derived from these varies in effect and length, generally lasting from one to three months. However, the Applicant is never completely pain-free and, in addition to the symptoms in his back and abdomen, he continues to experience the muscle spasms. It is likely that this symptom profile will persist indefinitely.
15. The Applicant’s assailant was successfully prosecuted and jailed for the assault. In 2013 he was advised that his assailant was about to be released from prison and would most likely return to live in the Westport/Castlebar area. The Applicant was very venerable and became very frightened and stressed by this news. He did not want to live in the same locality as his assailant. Consequently, he and his wife moved to be close to her family in Letterkenny, Co. Donegal.
16. Apart from pain-killing medication, including injection therapy, the Applicant also continues to receive counselling and antidepressant medication to help him deal with his ongoing psychological sequelae. In this regard his evidence was that he foresees no end to these problems or any future for himself. Although he can drive short journeys and can go down to the local shops, generally he has become socially withdrawn, remaining most of the time at home; this being the only place where he feels secure and safe. As far as he was concerned, the particular course of cognitive behavioural therapy which he had attended to help him deal with the assault and its consequences vocationally only made matters worse.
17. The Applicant’s subjective reporting of his injuries and the consequences of those for him both physically and psychologically were corroborated by his physicians. Unfortunately for him their prognosis for this comparatively young man is bleak indeed.
18. In the course of the proceedings, the parties reached agreement in relation to a number of heads of damage claimed, namely:
(i) Loss of medial and travelling expenses to date;
(ii) loss of earnings to date; and,
(iii) loss of future medical expenses, medication and travelling costs.
However, apart from the assessment of general compensation, the Applicant’s claim for future loss of earnings and other pecuniary benefits remained in issue, as did the appropriate multiplier to be applied to that claim.
19. The essential difference of opinion between Dr. Connolly and Mr. Murphy on the one hand, and Dr. Devitt on the other, concerns the Applicant’s capacity to recover to a point where he would at least be able to engage in some form of employment. In essence, Dr. Devitt’s view was that, especially once the litigation had been resolved and with a continuation of appropriate treatment, the Applicant would gradually improve to a point where he would be able to engage in worthwhile employment of a clerical/administrative nature involving the use of a computer in a non-stressful work environment, whereas Mr Murphy and Dr. Connolly thought that scenario highly unlikely.
20. The Applicant was vocationally assessed on behalf of the Respondent by Mr. Roger Leonard and on his own behalf by Ms Paula Smith. Her report is dated the 25th of May 2015. Mr. Leonard had that report as well as the medical reports prepared on behalf of the Applicant and Respondent when compiling his own report of the 27th of January, 2016. Based on the views of Dr Devitt, and on his own assessment, Mr. Leonard set out in detail several rates of pay for clerical/administrative work which would reflect the potential earnings available to the Applicant in the event of his being able to access that or similar work in the future.
21. Having carried out the assessment and having regard to the other expert reports available, he expressed the opinion that it was very difficult at that point in time to be optimistic in relation to the Applicant’s final vocational outcome. In his view it would be necessary for the Applicant to increase his involvement in activities outside of the home so that he could begin to participate in a regime such as a vocational training course; that would be a first step in a return-to-work programme. Significantly, he added that he did not think that the Applicant had the ability to do that at the time of his assessment.
22. On the basis of her assessment and the expert medical reports available to her, Paula Smith expressed the opinion that the Applicant was unlikely to be capable of returning to the labour force unless his continuing physical and psychological difficulties resolved or improved to a point which would make that possible. Her view was that if those difficulties were to persist into the future then she would be very pessimistic as to the likelihood of the Applicant ever being able to secure open employment.
23. Dr. Connolly, who also gave evidence at the hearing, expressed the opinion that the prognosis for the Applicant’s post-traumatic stress disorder was very poor. He described the Applicant’s psychological condition as severe and as having profound effects on his mood and personality. In his view the Applicant had a very poor perception of himself and his abilities, moreover, his anxiety and depression continued to be fed by the persistence of the symptomology associated with the physical injuries.
24. Whilst the Applicant had obtained some benefit from counselling in 2011, Dr Connolly’s evidence was that that had to be seen in context. He had managed to get back to work – albeit on light duties – he was hopeful of further improvement and had a medically supported expectation that the October 2011 surgery would be successful. Unfortunately it wasn’t and although he accepted that a particular form of cognitive behavioural therapy might have some role to play in the future, it was his evidence that that would be marginal and he would not be recommending it to his patient.
25. Although the Applicant himself expressed the hope that he would get some closure once the litigation had come to an end, Dr Connolly stressed the significance of the broad agreement between all of the physicians in relation to the seriousness of his physical injuries and the impact that these were likely to have on his psychological sequelae. In Dr Connolly’s view, this was the central matter which had to be borne in mind when the Applicant’s vocational future was being considered. Proceeding thus it was highly unlikely that the Applicant would ever reach the point where he would be capable of re-entering the work force at any meaningful level, if at all.
26. Dr. Devitt, who also gave evidence and was largely in agreement with Dr. Connolly as to diagnoses, differed from him in relation to prognosis. He had hoped that the Applicant would have made more progress as a result of the cognitive behavioural therapy undertaken in 2013. He had been involved in arranging that programme and also in supporting the application to retire from the police force on grounds of ill health. In his opinion the conclusion of litigation and the severing of his relationship with his former employers would afford the Applicant a new opportunity to rebuild his life.
27. Cognitively, the Applicant was intact and it had not been seriously suggested otherwise on his behalf. He thought that Ms Smith and Dr. Connolly were too pessimistic and that, though progress would be slow, ultimately felt that the Applicant would reach a point where he would be able for employment of an administrative type in a non-stressful work environment. Accordingly, he thought that every effort should be made to encourage the Applicant to try and achieve that objective. Moreover, it was his opinion that a different form of cognitive behavioural therapy concentrating on wellbeing and functioning rather than coping with duties as a police officer, did have a clinically significant role to play in rehabilitation.
28. Dr. Devitt accepted that any improvement would be slow and that much would depend on the Applicant’s perception of pain. Although confined to light duties, he had supported the Applicant’s decision to retire from the Gardai on grounds of ill health particularly because there was, in his view, a connection between his role in the Gardai and the profoundly negative and ongoing consequences of the assault. His evidence was that the impact of severing his connection with the Gardai would not be felt by the Applicant until after the litigation had concluded. Whilst he accepted that the Applicant was living a life which was essentially centred on his home and that, for all intents and purposes, he had become socially withdrawn, his opinion was that if the Applicant was given appropriate psychological support and assistance aimed at dealing with that aspect of his life then there was room to be more optimistic concerning the future; the Applicant was an intelligent man and, objectively, it was quite clear that he was still able to function albeit at a much reduced level.
29. In that regard, Dr Devitt accepted that the Applicant’s ability to function would be affected by the level of medication being taken by him. As to that, however, it was his view was that a reduction in the level of medication might well benefit the Applicant in dealing with his psychological problems and would consequently help him achieve a better level of functioning.
Submissions
30. It was submitted on behalf of the Applicant that in relation to the assessment of general compensation, his injuries, both psychological and physical, were permanent and serious and that the degree of seriousness, together with the absence of any dispute as to the permanency of the injuries, was such as to inform the Court in making an award of general damages at the very highest level. Counsel for the Applicant relied on and referred to a number of authorities: Bennett v Cullen [2014] IEHC 574. Mansfield v the Minister for Finance and others [2014] IEHC 603, Murtagh v the Minister for Defence [2008] IEHC 292, Purcell v Long [2015] IEHC 385, Flynn v Long [2015] IEHC 401, Doherty (A person of Unsound mind not so found) v Quigley [2011] IEHC 361 and Nolan v Wirenski [2016] IECA 56.
31. Whilst it was accepted by counsel on behalf of the Respondent that the Applicant had suffered significant physical and psychological injuries as a result of the assault, it was submitted that these, when taken together, were nowhere near what could be considered the “top end” of the scale of general damages which could be awarded for personal injuries and in this regard he relied on and referred the Court to: Kearney v McQuillan [2012] IESC 43, Payne v Nugent [2015] IECA 268 and Nolan v Wirenski, supra. The attention of the Court was drawn by counsel for the Respondent to the fact that all of the medical witnesses considered the Applicant to have full cognitive function and to be a very intelligent man. Accepting that he had suffered and would suffer from physical and psychological sequelae it was, nevertheless, clear that he possessed the full use of his body: he was able to mobilise generally, live independently, could drive a car, had married and had started a family. It was submitted that the Applicant had travelled to and stayed in Dublin independently and that the way and manner in which he had acquitted himself in court was indicative of a man who, whilst seriously injured, was nowhere near as incapacitated as would be required of a very seriously or catastrophically injured plaintiff deserving of an award of compensation in the region of the highest level for general damages appropriate to personal injury cases of that kind.
Decision on general damages/compensation
32. The general and special compensation awarded under the Garda Siochanna (Compensation) Acts 1941 and 1945 (the Acts) is equivalent to general and special damages awarded in a personal injury action arising as a result of a wrong. The term ‘compensation’ rather than ‘damages’ is appropriate and employed in the Acts because the Minister, although liable to satisfy the judgment of the Court under statute, is neither a wrongdoer nor a party vicariously liable for the wrongful acts giving rise to the proceedings. Whether or not it is ‘compensation’ or ‘damages’ with which the Court is concerned, the assessment of the amount of the award in either case is governed by the same legal principles. See Murphy v. The Minister for Public Expenditure and Reform [2015] IEHC 868.
33. Having regard to the submissions made on behalf of the Applicant in relation to the level at which the Court should assess general compensation consideration must be had to the so called “cap” on general damages. This was considered and pronounced upon in Sinnott v. Quinsworth [1984] ILRM 525 and is a matter which has been revisited in many subsequent cases up to and including Nolan v Wirenski [2016] IECA 56. These authorities must be viewed in the context and with regard to the particular circumstances applicable to each case.
34. From these cases some general principles applicable to the approach of the Court to the assessment of general damages in very serious or catastrophic injury cases can be ascertained. In Yun v MIBI and Tao [2009] IEHC 318, Quirke J. in a case where catastrophic injuries had been suffered enunciated these as follows :
(i) “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.
(ii) When applying or viewing the ‘cap’ on general damages the court should take into account the factors and principles identified by the Supreme Court in Sinnott v Quinsworth [1984] ILRM 523 and in MN v. SM [2005] IESC 17 including ‘contemporary standards and money values’.
(iii) 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.
(iv) 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 compensational consequence for the injured person.
(v) 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.”
35. The legal objective in the assessment by the Court of general compensation or damages is to determine a figure which is fair, reasonable and proportionate to the injuries suffered. In Sinnott, O’Higgins C.J. expressed the view that a limit on what might be awarded should be sought and recognised having regard to the facts of each case and the social conditions obtaining in society including ordinary living standards and the level of incomes. It follows that the ‘cap’ to be placed in an appropriate case on an award of general compensation or damages is to be ascertained against a background of the economic circumstances, including ordinary living standards and the value of money in society at the time when the assessment is made.
30. The well known phrase “moving with the times” could hardly be more apposite in this context and is well illustrated by the approach taken by the Court in Yun v. MIBI and Anor (supra) when deciding in 2008 on the real value of the ‘cap’ set in 1984 and how the economic circumstances prevailing and likely to prevail at the time of the assessment should be reflected in arriving at the net real value.
31. Having made an upward adjustment by increasing the equivalent value in 2008 of the 1984 ‘cap’ of £150,000, from €400,000 to €500,000, Quirke J. then made a downward adjustment which had the effect of reducing the equivalent value of the 1984 ‘cap’ to €450,000. This was necessary in order to take into account the anticipated reduction in wealth and living standards in the State which had commenced in early 2008 and which were expected to continue for a further period in excess of five years.
32. The social and economic circumstances prevailing were significantly less than auspicious at the time when the cases of Yun v. MIBI and Kearney v. McQuillan were decided. Had it not been for external assistance, I think it reasonably well-accepted by economists of all hues that for all practical purposes the State would have been bankrupt. If the official pronouncements of the Department of Finance, the Revenue, and the OECD are to be considered reliable commentators of current economic circumstances and the state of the economy in general, a significant recovery is underway: the State is enjoying the highest economic growth rate in the EU, unemployment and emigration levels have fallen dramatically, property values are recovering and there is a clamour for the restoration of pay to pre recession levels.
33. It would seem to me to follow that these factors, if maintained, must necessarily impact the present ‘cap’ on general damages of €450,000, determined as it was at a time when very different economic and social factors prevailed and therefore warranting a review of that figure to take the changes in those factors which have occurred since into account. On the face of it, an adjustment upwards would seem warranted.
34. In a case where such considerations arise it is the economic and social factors prevailing and most likely to prevail at the time when the assessment is being made by the Court which will inform the relevant ‘cap’ to be applied to the level of general damages or compensation rather than the ‘cap’ determined 5 or 10 years earlier if at that time the economic and social circumstances considered and taken into account by the Court were markedly different. However, as that argument was not advanced on this application I will make no further comment upon it.
35. For the sake of clarity, however, I consider it appropriate to observe that absent significant claims in respect of pecuniary losses into the future, such as claims for future medical treatment, care, accommodation, aids, appliances and loss of earnings, the Court is not constrained by the so called ‘cap’ applicable to cases involving such claims; though this does not mean that the figure representing the ‘cap’ cannot be taken into account in a general way when an assessment of appropriate general damages or compensation is being made in a non ‘cap’ case. See Gough v Neary [2003] 3 IR 92 at 132.
36. In such a case an award of general damages or compensation may not only exceed but exceed substantially the ‘cap’ applicable to an award of general damages in a case where substantial future loss claims are made. See B. v C. [2011] IEHC 88 where Clarke J. awarded €700,000 in respect of injuries which, whilst very serious, were less than catastrophic and where the case did not involve a claim for substantial future medical treatment or care costs.
37. I am satisfied that that situation nor those circumstances arise in this case since the Applicant has advanced very significant pecuniary claims by way of special compensation both to date and into the future. In this regard the parties have agreed special pecuniary losses to date, to include medical expenses and loss of earnings, in the sum of €100,000. Agreement has also been reached on future special pecuniary loss in respect of medical expenses, medication and travelling expenses in the sum of €200,000. However, a substantial claim in respect of future loss of earnings and other pecuniary benefits falls to be determined by the Court. When these claims are taken together I am quite satisfied that this is a case to which the generally accepted ‘cap’, currently considered to be €450,000 in respect of general compensation, applies; as to that see Nolan v Wirenski [2016] IECA 56.
Conclusion on general compensation.
38. As far as the Applicant’s physical injuries are concerned, these were life-threatening necessitating a series of significant operations. The Applicant has been left with cosmetically disfiguring operation scars in addition to the scarring left by the knife entry wound; he had a distressing temporary colostomy; he developed a hernia and had his gall bladder and spleen removed, the consequences of the latter exposing him to a lifelong increased risk of serious infection for which he will always need to take prophylactic medication. The Applicant continues to be symptomatic with back and abdominal and left flank pain with associated intermittent involuntary spasms in that area. He derives temporary relief from intercostal injections administered three to four times a year and is likely to require ongoing interventional treatment to help control his multifactorial symptomology for the foreseeable future. Even on the most optimistic view of the future he will be left with permanent injuries.
39. The Applicant also developed significant post traumatic stress disorder symptoms; he became depressed, and was rendered emotionally and psychologically fragile. One of the consequences of the medication received was the development of erectile dysfunction which requires but does respond to medical treatment. In addition to daily antibiotics, the Applicant is on a concoction of medications to help him deal with his physical pain and psychological sequelae. He requires and benefits from psychological intervention and antidepressant medication and is likely to do so for the foreseeable future.
40. Whilst there was little or no controversy between the parties in relation to the seriousness and the consequences of what are permanent injuries, I am satisfied in relation to the issue concerning his psychological sequelae that the conclusion of the litigation and the severing of his connection with the police force are likely to have a beneficial effect on him. In this regard I prefer the evidence of Dr. Devitt who was involved in the Applicant’s treatment, was sympathetic to him, and supported his application to retire. I think it pertinent to observe that I was impressed by the Applicant’s presentation in court, by the way in which he acquitted himself when giving evidence and by his own hopes and aspirations including a belief that the conclusion of these proceedings would likely bring closure and enable him to get on with his life, though recognising as I do that he will continue to require long-term appropriate psychological intervention, support and medication in addition to medication and treatment for his ongoing physical injuries.
41. For all of these reasons, upon the findings made and having regard to the principles of Tort law applicable to the assessment of general compensation under the Acts, it is the view of the Court that a fair and reasonable sum to compensate the Applicant for pain and suffering to date commensurate with his injuries is €250,000 and in respect of future pain and suffering the sum of €150,000, making it an aggregate sum of €400,000.
Claim for future loss of earnings and loss of future pecuniary benefits.
42. Retired Superintendent William Keaveney gave evidence that he was the Applicant’s superintendent in the period from 2001 to 2002. The Applicant made a serious impression on him as somebody who was likely to progress in his career. He discharged his duties in a very efficient manner, displayed initiative and was well disposed towards assisting other members of the force. It was partly due to these attributes that he was selected as a duty guard for students as well as being the officer designated to assist other members of the force who had experienced trauma.
43. With specific regard to the Applicant’s promotional prospects, Mr. Keaveney gave evidence that the Applicant had taken and passed his Sergeants exams and had successfully completed the interviews for that rank in 2006/2007. He impressed as an excellent candidate; he had no doubt but that the Applicant would by now have secured the rank of Sergeant. In support of that view, he referred to the appointment of Garda Malone as a Sergeant. He was a contemporary of the Applicant who sat and passed his exams and interviews at the same time. Insofar as any further promotion was concerned, he was confident that the Applicant would have been able to sit his Inspector’s exams and thought it reasonable that he would achieve the rank of Inspector by 2020.
44. As has already been referred to earlier in this judgment, the Applicant was vocationally assessed by Mr. Roger Leonard and Ms Paula Smith. Their reports have been admitted into evidence and have been considered by the Court.
45. It is the Applicant’s case that he would have retired from the Gardai at age 60 and that, as is commonly the case with members of the force on retirement he would have sought employment to supplement his pension until he was 68 years old. In her report of the 7th of December 2015, Paula Smith listed a number of different types of occupations traditionally secured by retiring Gardai producing incomes ranging from €25,000 to €35,000 gross per annum. In an earlier report dated the 29th of May 2015, Ms. Smith set out the findings of her assessment of the Applicant and expressed the opinion that it was unlikely that he would be able to return to the labour force in any capacity.
46. Mr. Leonard, referring to the views of Dr. Patrick Devitt in his report of June 2014, details rates of pay for clerical/administrative workers which would reflect the potential earnings available to the Applicant should he be able to access that or similar work. He went on to observe, however, and for reasons given that based on his assessment of progress to date it was very difficult to be optimistic that the Applicant would achieve a return to the workforce. In the first instance, it would be necessary for the Applicant to increase his involvement in activities outside the home so that he could begin to participate in a regime such as a vocational training course and which would be a first step in a return-to-work programme. However, it did not appear to Mr. Leonard that the Applicant had the ability to do that at the time of assessment.
Decision on future employability.
47. Considering all of the medical and vocational evidence available to the Court there is not, in my view, any basis to support a finding that the Applicant would ultimately be able to secure employment as a project administrator or office manager since it is unlikely that the Applicant would be able to cope with the stresses normally associated with such positions furthermore a serious question mark arises in relation to capacity even in relation to the most basic of employments referred to by the vocational consultants.
49. Whilst I prefer the evidence of Dr. Devitt concerning the prospects for some recovery by the Applicant in relation to his psychological sequelae, his opinion that the Applicant had a reasonable prospect of returning to the workforce, albeit in a limited capacity must, in my view, be read in conjunction with the vocational evidence.
48. Mr Leonard was aware of Dr. Devitt’s opinion at the time when he wrote his report. Nevertheless, and having regard to the other reports available to him at the time, including that of Paula Smith, and considering his own assessment of the Applicant, his view of the Applicant’s presentation was one of a person with very significant physical and mental health difficulties; he was not optimistic about the Applicant’s ability to participate in a vocational training programme nor was he optimistic in relation to final vocational outcome.
Conclusion on employability
49. It seems to me, although differently expressed, that there is no significant difference of opinion between Ms Smith and Mr. Leonard in terms of the Applicant’s future vocational outcome. When all of the physical and psychological factors are taken into account – and in this regard a holistic approach is apposite – it is the view of the Court that such improvement as may likely occur in relation to the Applicant’s injuries is not such as would result in his being able to secure and retain a stress-free basic employment resulting in any meaningful income.
50. In this context, it is also considered appropriate to observe that the Applicant is in receipt of a supplementary pension of €13,519 per annum which is awarded on the basis that the Applicant is unable to work. Were the Applicant to secure paid employment any income received would directly impact upon this allowance which would reduce proportionately to the income received up to the current maximum limit payable.
51. Pensions, including supplementary pensions, are deductible in valuing future loss of earnings in applications under the Garda Síochána Compensation Acts. Even if the Applicant managed to return to some sort of stress-free basic employment on my view of the evidence the Court would not be warranted in coming to the conclusion that, as a matter of probability, the type of employment he might secure and retain would be such that, having regard to the amount of his supplementary pension, it would impact on his claim for future loss of earnings.
Decision on promotion
52. I accept the evidence of retired Superintendent Kearney that the Applicant would, as a matter of probability, have been promoted to the rank of Sergeant. In this regard I consider it significant that he had already sat and passed his Sergeant’s exams and had satisfied interview criteria for appointment as a Sergeant. I am fortified in that finding by the appointment to the rank of Sergeant of a contemporary of the Applicant, Garda Malone.
53. It was submitted on behalf of the Respondent that, whatever about promotion to the rank of Sergeant, the suggestion that the Applicant would have become an Inspector by 2020 or any date is simply a leap too far. I accept that submission. Although retired Superintendent Kearney was confident that the Applicant would have been able to sit and pass his Inspector’s exams and that it was reasonable to infer that the Applicant would be appointed to the rank of Inspector in or about 2020, that proposition is subject to such uncertainties and imponderables as to render it highly speculative. Accordingly, the Court cannot find as a matter of probability that the Applicant would be promoted to the rank of Inspector had he not been injured and had been able to remain in the Gardai.
54. Actuarial evidence was given on behalf of the Applicant and the Respondent and the reports prepared by the actuaries were admitted into evidence. Although somewhat different approaches were taken, the actuaries were in the final result broadly in agreement concerning the relevant assumptions made.
55. Proceeding on the assumption that the Applicant would have been promoted to the rank of Sergeant by December 2015, he will suffer an ongoing net annual loss of income in the sum of €17,337; this being the difference between his Garda pension and the salary he would receive as a Sergeant to age 60 (after all deductions). The capital value of that loss without any Reddy v Bates contingencies (Reddy v Bates [1983] 1 I.R., see infra) deduction calculated on a 1% actuarial rate of interest is €360,306, and at 2.5% is €332,334.
56. In relation to the claim for loss of earnings and pension benefits between the age of 60 and 68, the evidence of the Applicant’s vocational consultant was that the current levels of income achievable from the kind of occupation commonly secured by retiring members of An Garda Síochána were €35,000, €40,000 and €45,000, respectively. Assuming a retirement pension applicable to the rank of Sergeant in the sum of €22,060, the Applicant’s actuary calculated the capital loss applicable to these sums on a 1% actuarial rate of interest as being €73,902, €89,925 and €105,631, respectively. Applying a 2.5% actuarial rate of interest the equivalent figures were €60,794, €73,975 and €86,887.
57. It was accepted that the Applicant would suffer no loss of pension from age 68 had he remained a Detective Garda. However, a loss would arise had the Applicant been promoted to the rank of Sergeant and, in this regard, the capital value of the loss of pension from age 68 for life on a 1% actuarial rate of interest was given at €19,075 and at the 2.5% rate at €13,085.
58. The Applicant received a net lump sum of €10,574.82 on his discharge from the force in June 2015. Accepting that he would have been promoted to the rank of Sergeant by December 2015, the capital value of the future gratuity loss on a 1% actuarial rate of interest was given at €72,047 and at a 2.5% rate of interest at €59,154.
59. There was an issue between the parties in relation to overtime payment. Evidence was given on behalf of the Applicant by Mr. Walsh of Browne, Murphy & Hughes, chartered and certified accountants. He prepared a report dated the 23rd November, 2015, which was admitted. The amount allowable for future annual overtime by the Respondent was €1,888.86. The actual overtime earned by the Applicant in the two years prior to the assault was €8,682 and €11,942, respectively. For the purposes of the claim, Mr. Walsh gave evidence that the appropriate average annual overtime which ought reasonably to be allowed was €9,000 per annum. On his evidence this was reasonable not just by reference to the overtime actually earned by the Applicant in the two years prior to the date of the assault, but also by reference to actual overtime earnings in 2015 for a comparable Garda in Swinford of €15,448, and a comparable Garda in Castlebar of €10,569. If anything, the suggested average rate of €9,000 per annum was not only reasonable but conservative.
60. On my view of the evidence this contention was not seriously challenged. It was relied upon by Mr. Brendan Lynch in the preparation of his report and in his evidence. Noting that no allowance was made by the actuaries for Reddy v Bates contingencies and subject to what follows in this judgment, I accept, in so far as it goes, the actuarial and accountancy evidence of Mr. Lynch and Mr. Walsh.
Actuarial rate of interest.
61. It was submitted on behalf of the Applicant that the actuarial rate of interest, being the real rate of return appropriate to the Applicant’s claim in respect of his future loss of earnings and pecuniary benefits, should be 1%. As against that, the Respondents argued that the Court should apply a real rate of return of 3% in line with the decision in Boyne v. Dublin Bus [2006] IEHC 209 or, alternatively, 2.5% in line with the decision in McEneaney v. Monaghan County Council [2001] IEHC 114.
62. The question of the appropriate real rate of return in respect of the future costs of medical treatment, aids, appliances and future care recently fell for consideration by this Court in Gill Russell (a Minor) v. HSE [2014] IEHC 590 and subsequently by the Court of Appeal in the same case, [2015] IECA 236.
63. It was submitted on behalf of the Respondents that there was some confusion concerning the actual ratio decidendi in that case. However, albeit that his view was obiter, counsel for the Respondent drew the attention of the Court to the view of Cross J. at para. 2.47 of his judgment in relation to the appropriate multiplier to be applied in respect of a claim for future loss of earnings where he stated that “…were I to be deciding on an appropriate multiplier for a Plaintiff, such as in the Boyne case, who required investment of a sum for loss of earnings, and I am not so deciding, then it is very likely that a 3% real rate of return or the equivalent would be appropriate.”
64. Whilst observing that the view of Cross J. was obiter and, similarly, that the Court of Appeal did not decide the question in relation to a claim for future loss of earnings and pecuniary benefits, that Court itself expressed an opinion in relation to the obiter view of Cross J. on the appropriate multiplier at para. 89 in the following terms:
“89. For the purposes of clarity it is perhaps of importance for this court to state that we do not accept the albeit obiter view expressed by the High Court judge in the present case insofar as he indicated that a plaintiff with a claim for future pecuniary loss confined to loss of earnings might possibly be treated as less risk averse than a plaintiff who has a claim for the cost of future care. There appear to be a number of arguments against such a proposition. It would seem to admit of the adoption of a potentially higher real rate of return in the loss of earnings claim on the assumption that the plaintiff can necessarily absorb a greater risk when investing their award to secure their future income. While of course there may be the rare case where a particular plaintiff may not need their earnings to survive on a day-to-day basis and might thus be in a position to take risks in terms of the investment of their award, most plaintiffs do not fall into that category. A plaintiff who will never be in a position to work again and is dependant upon the investment of his lump sum for their own support and that of his family may be entitled be treated similarly in terms of the investment risk he should have to absorb to the plaintiff who needs to cover the cost of their future nursing care on an annual basis.”
65. It is accepted by the Applicant that in Russell the Court of Appeal did not decide, in the circumstances of a Plaintiff who would never be in a position to work again and who was dependent on the investment of the lump sum for their own support and that of their family, that in relation to the appropriate multiplier, the Plaintiff should be treated in the same way as a Plaintiff who needed to cover the cost of future nursing care. It was submitted that, though obiter, the view that was expressed should nevertheless guide this Court in the determination of that question which falls for consideration in this case, especially as the permanence and seriousness of the Applicant’s injuries are such that he was unlikely to be ever able to return to the workforce in the future.
66. While contending that the decision of the Court of Appeal in Russell was not an authority for the proposition being advanced on behalf of the Applicant, the Respondent sought to cast the view of the Court in respect of the obiter dicta of Cross J. as being ‘one which did not necessarily commend itself to that Court’. The wording of the judgment of the Court is, however, more trenchantly and definitively expressed. The Court considered it important to state for the purposes of clarity that it did not accept the view of the learned trial judge, albeit obiter, in relation to the approach to be taken in relation to a claim for future loss of earnings.
67. In Wells v. Wells [1999] 1 AC 345 the principle question which fell for consideration by the House of Lords was the correct method of calculating lump sum damages for the loss of future earnings and the cost of future care. There were two cases heard by the Court at the same time and in respect of which the same question fell for consideration. In allowing the appeals it was held by the House of Lords that the purpose of an award of damages in tort was to make good to the injured Plaintiff, so far as money can do so, the loss that he had suffered as a result of the wrong done to him; that in awarding damages in the form of a lump sum the Court had to calculate as best it could the sum that would be adequate, by drawing down both capital and income, to apply periodical sums equal to the Plaintiff’s estimated loss over the period during which that loss was likely to continue; that the injured Plaintiff was not in the same position as an ordinary prudent investor and was entitled to the greater security and certainty achieved by investment in index-linked government securities, in respect of which the current net discount rate was 3%.
68. Insofar as that decision was persuasive authority for the proposition that, in determining the likely real rate of return which an injured Plaintiff might obtain on the investment of his lump sum in respect of his future care and treatment costs, he was not to be treated as an ordinary “prudent investor” but was, instead, entitled to have his lump sum award calculated on the basis that he was entitled to a lump sum that was sufficient to enable him to participate in as risk-free an investment as was available to meet the totality of his future losses over his remaining life expectancy, Wells was unanimously approved and followed by the Court of Appeal . At para. 84 of the judgment the Court stated:
“84. Quite correctly, in the view of this Court, Cross J. determined that the assessment of the real rate of return is to be made on the assumption that the plaintiff should be entitled to invest his award in as risk free an investment strategy as is available and which will likely meet his future care needs. In particular, we agree with his conclusion that the plaintiff is not to be treated as an ordinary prudent investor for the purposes of calculating the likely return on the investment of his lump sum. In adopting this approach, the High Court judge appropriately adopted the reasoning of the House of Lords in Wells , thus rejecting the approach earlier taken by the Court of Appeal in the same cases and which approach appears to have informed, to some extent, the decision of Finnegan P. in Boyne . The Court of Appeal in Wells and Finnegan P. in Boyne had concluded that in calculating the plaintiff’s lump sum award for future pecuniary loss the court was entitled to proceed on the presumption that the plaintiff would invest his award as an ordinary prudent investor.
85. Having considered the authorities on this issue and in particular the decision of the House of Lords in Wells , this Court is satisfied that it would be fundamentally flawed reasoning for a court to assume that the same investment policy would be prudent for all investors. The catastrophically injured plaintiff who needs to replace their lost income or to provide for their future care is simply not in the same position as the ordinary investor who has an income and has surplus funds to invest. The latter is clearly in a position to absorb greater risk. They are not dependant on such monies to meet their basic day to day requirements and indeed may not need to access these surplus funds for many years. Accordingly, they might prudently be in a position to invest in equities given their ability, should the market fall, to hold onto their investment and wait until the market recovers before selling. Even if they end up losing on their investment the outcome is not catastrophic. However, most injured plaintiffs enjoy no such comfort. Almost inevitably they are dependant upon their award of damages to meet their needs as they arise on a day to day basis. Accordingly, this Court is satisfied that the High Court judge was correct when he concluded that the plaintiff was entitled to have his damages calculated on the basis that he should be entitled to pursue the most risk averse investment reasonably available to meet his needs.”
69. Where the Court is required to calculate damages for future pecuniary loss, the law requires that the Plaintiff is to be provided with compensation on a 100% basis. Having done so, if there is an apportionment on liability, that apportionment will then be applied to the sum so calculated. Having concluded that the calculation by the Court of the discount rate was to be made on the basis of the assumed entitlement of a Plaintiff to invest the award in as risk-free an investment as was available and suitable to meet the Plaintiff’s future needs, the Court in Russell was satisfied that the trial judge was entitled on the evidence to conclude that the appropriate discount rate to be used for the purposes of calculating all of the Plaintiff’s outstanding claims for future pecuniary loss was 1.5%, and that the rate applicable to the Plaintiff’s claim for future care should be reduced by 0.5% to 1% to take account of the extent to which wage inflation was likely to exceed the CPI (consumer price index) over the course of the Plaintiff’s lifetime. In this regard the Court was also satisfied that the trial judge’s conclusion that the Plaintiff’s lump sum should be calculated by a reference to index-linked government stock (ILGS), was well founded.
70. It was stressed by the Court that the discount rate only applied to claims for future pecuniary loss and did not herald any change in the approach of the courts to compensate the Plaintiff for pain and suffering caused by the injury resulting from the wrong. In this regard the Court stated at p.161 of the judgment that:
“The alteration of the rate is, we believe, necessary to enable the Plaintiff meet his future needs without him having to take unnecessary risks with the fund provided to achieve that end. To expect and indeed oblige a Plaintiff, by the manner in which the Court approaches the calculation of their lump sum, to take such risks is, in the unanimous view of this court, both unjust and unacceptable.”
71. Counsel for the Respondent submitted that this Court should follow the decisions in Boyne and McEneany particularly as the determination of the real rate of return in Boyne was concerned with the Plaintiff’s claim for future loss of earnings. In McEneany O’Sullivan J. accepted that, in calculating the real rate of return, the Court should take into account that a Plaintiff was entitled to avoid what he described as “non-negligible risk”. Although he concluded that that would be achieved by a reference to a mixed portfolio including a substantial percentage of equities, it is clear that he did so against the backdrop of the non-availability of pan-European ILGS as well as the Plaintiff’s evidence as to how, in such circumstances, the real rate of the return might be calculated.
72. Rejecting the defendant’s criticism of the High Court judge for his failure to adopt the approach of Finnegan P. in Boyne, the Court of Appeal in Russell stated that whilst it was correct that in calculating the lump sum, the Court was entitled to assume that the Plaintiff would invest it prudently “…he was wrong to approach the selection of the multiplier on the basis that the plaintiff would likely adopt an investment strategy akin to that appropriate for an ordinary prudent investor rather than that which would be considered prudent for a plaintiff dependant upon their annuity to sustain their future welfare.”
73. Although Boyne was not authority for the proposition that a 3% real rate of return should be assumed in every case of future pecuniary loss, the Court of Appeal observed that the courts had adopted what was described as a “one size fits all” approach for the purposes of determining a multiplier to be used when calculating all classes of future pecuniary loss. It is clear that since the decision in Russell, the approach of the Court to the selection of the multiplier in the decisions of Boyne and of McEneany and the consequential application of a 3% or 2.5% actuarial rate of interest no longer pertains.
74. A question remains, however, as to whether a claim for future loss of earnings is subject to the same reasoning and approach by the Court as was applied to the determination of the real rate of return in relation to a claim for future medical care and treatment. That question did not fall to be determined in Russell. However, it was a significant aspect of the claim made by the Plaintiff in Wells. As to that Lord Hutton at P. 403 stated:
“Unlike the great majority of persons who invest their capital, it is vital for the plaintiff’s status that they receive constant and costly nursing care for the remainder of their lives and that they should be able to pay for it, and any fall in income or depreciation in the capital value of their investments will affect them much more severely than persons in better health who depend on their investments for support.
Moreover, a plaintiff who claims damages for loss of future earnings should, in my opinion, not be placed in the same position as a person who relies on capital for his future support. Such a plaintiff, but for the injuries which have taken away his earning capacity, would have been better protected against inflation by the rise in his wages in future years than the person who has to rely on a sound investment policy to protect him in the years ahead. In Livingstone v. Rawyards Coal Company, 5 App. Cas 25, 39, Lord Blackburn stated:
‘where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.’
I consider that an award assessed by reference to the index-linked return on ILGS will give protection against inflation closer to the protection which would have been given by the rise in the plaintiff’s wages, and will give better effect to the principle stated by Lord Blackburn, than will an award assessed by reference to the return on equities.”
75. The decision in Wells is not binding on this Court but is persuasive authority: it persuaded and was adopted by the Court of Appeal in relation to the questions which fell for consideration and determination by it and, in my view, it is also persuasive authority on the same question insofar as that relates to the calculation of the lump sum which should be awarded to the Applicant in relation to his claim for future loss of earnings and like pecuniary benefits. Accordingly, I adopt the foregoing extract from the judgment of Lord Hutton as a correct statement of the law in this regard.
76. The Court considers that this conclusion is further supported by the unanimous view of the Court of Appeal in Russell, though obiter, that it did not accept the view of the learned trial judge that different considerations in relation to the actuarial rate of interest would apply in relation to a claim for future loss of earnings than to a claim for future care.
Conclusion.
77. For all of these reasons, I cannot accept the submissions of the Respondent in relation to the appropriate actuarial interest rate to be applied in relation to the Applicant’s claim for future loss of earnings and other pecuniary benefits which have not been agreed. In all but one respect I accept the submissions made on behalf of the Applicant in this regard.
78. It was submitted on behalf of the Applicant that the appropriate real rate of return to be applied in relation to the calculation of the lump sum in respect of the Applicant’s claim for future loss of earnings and pecuniary benefits should be reduced from 1.5% to 1% because, in essence, the Applicant’s claim was one in respect of future loss of earnings and that, therefore, the discounted rate must be reduced further to take account of the increases that would otherwise accrue to the Applicant through wage inflation above the general rate of inflation.
79. The answer to that submission is to be found in the adopted extract from the judgment of Lord Hutton in Wells and in the judgment of the Court of Appeal in Russell. Although the Court held that the trial judge was entitled to adjust the real rate of return by 0.5% to take account of wage inflation in the care sector over a specified period, it went on to state that:
“156. The court notes that the trial judge, having concluded that a real rate of return based upon investment in a portfolio of ILGS should be set at 1.5%, reduced that rate to 1% to take account of future wage inflation, a factor only relevant to the computation of the cost of future care. However, from his judgment and order it appears that he then proceeded to use the 1% rate for the purpose of calculating certain categories of pecuniary loss of a non care nature. No submissions were addressed to this issue. Given that a rate of 1% was considered appropriate solely by reason of the potential impact of wage inflation, the use of 1% rather than 1.5% to calculate any category of pecuniary loss other than future care would appear inappropriate.”
80. It must be recalled that the head of claim in respect of which the 0.5% discount was made in Russell related to the wages of the carers who would be needed to look after the Plaintiff during his lifetime and not in respect of a claim for loss of earnings by the Plaintiff. Moreover, there was evidence that wage rates in the health sector were likely to outstrip general inflation. As Lord Hutton stated in Wells, the assessment of an award in respect of a claim for future loss of earnings by reference to the index-linked return on the ILGS would give protection against inflation closer to the protection which would have been given by the rise in the Plaintiff’s earnings.
81. Following these authorities, I cannot accept the Applicant’s submissions in regard to this issue; accordingly, the Court finds that the appropriate real rate of return to be applied in the assessment of the award to be made to the Applicant in respect of his claim for future loss of earnings and pecuniary benefits is 1.5%. It follows that the multipliers in respect of each €1 per week loss of earnings and other pecuniary benefits on a 1.5% actuarial rate of interest will need to be ascertained and applied in respect of that claim before the final order of the Court is made. I shall discuss with counsel how best to proceed with that aspect of the claim.
Reddy v. Bates contingencies.
82. It was submitted on behalf of the Respondent that although the Applicant was undoubtedly in secure employment as a member of the police force some deduction ought nevertheless be made by the Court in respect of life’s uncertainties and exigencies in order to modify the certainties employed by actuarial calculations based as they are on the assumption that events will progress to a particular date without any disruption or interruption.
83. Particularly during periods in an economic cycle where there are significant rises in unemployment, emigration and a reduction in incomes and associated pecuniary benefits otherwise enjoyed, it cannot be assumed that the ordinary uncertainties and exigencies of life will not apply to what are considered relatively secure and permanent employments such as those in the public service. The pay reductions across the public service and even redundancies during the recent recession give the lie to that proposition.
84. Indeed the serious consequences of the assault giving rise to these proceedings and resulting in the Applicant’s retirement from the police force is an example of but one of the events which can occur and which has in fact occurred in this case. It serves to illustrate the uncertainty attaching to an assumption that the Applicant would have served full time until retirement at age 60.
85. However, having regard to the relative security of employment in the public service when compared to the private sector and to the ordinary uncertainties and exigencies of life that go with the living of it, the Court considers that a fair and reasonable deduction to be applied to this head of claim for Reddy v Bates contingencies to age 60 is 20%.
86. As to the Applicant’s claim for future loss of earnings from age 60 to 68, I accept that, as a matter of probability, the Applicant would most likely have applied for and secured employment in one of the sectors identified by Ms. Smith and regularly obtained by retiring members of the force. While I accept the evidence that there are members of the force who retire and do not take up further employment I am also satisfied on the evidence that situation is more the exception than the rule. The Court also accepts the Applicant’s evidence and finds that it was his intention once he retired from the force at the age of 60 to seek out alternative employment.
87. However, with regard to this aspect of the Applicant’s claim there is, nevertheless, a significant element of speculation in relation to the type and terms of employment that he might have secured. Furthermore even if he secured such employment it seems to me that there would have to be a significantly larger deduction in respect of that claim to take account of Reddy v Bates contingencies given his age and the uncertainties associated with such employments in the private sector.
88. Accordingly, the Court considers that in the circumstances of this case the most reasonable approach to take in relation to this aspect of the Applicant’s claim is to award the Applicant an additional sum to compensate him for the loss of opportunity to pursue such employment in the future which the Court measures in the sum of €45,000.
89. This sum will be added to the sum of €400,000 general compensation already assessed by the Court together with the sum of € 300,000 agreed in respect of special pecuniary losses. In addition to these amounts will be added the sums to be calculated in respect of future loss of earnings and other pecuniary benefits to age 60 on the multiplier appropriate to an actuarial rate of interest of 1.5%, but subject to a deduction of 20% for Reddy v Bates contingencies. I will discuss with counsel the final form of the orders to be made.
Woods v Tyrell
[2016] IEHC 355.JUDGMENT of Mr. Justice Cross delivered on the 24th day of June, 2016
1. The plaintiff is a pleasant secondary school teacher who was born on 8th July, 1969 who was involved in a road traffic accident while jogging on the public highway with a friend on the Ballynacarragy to Mullingar Road.
2. The plaintiff set out jogging two abreast with a friend on the morning which started bright and crisp, it had been cold and frosty that January and she encountered pockets of fog. The plaintiff was on the inside and was facing oncoming traffic when a tractor and trailer being driven by a friend passed her going in the same direction on the far side of the road and then she saw the defendant’s van which almost immediately went onto the grass margin and the plaintiff felt her line of escape was cut off, did not know what to do but went on to the grass margin hoping that the van would go back on to the highway but unfortunately the van continued on the grass margin and the plaintiff was struck with the mirror of the van and suffered quite significant injuries.
Liability
3. The defendant accepts that some liability must attach to him but pleads that the accident was in the main caused, or contributed to, by reason of the negligence of the plaintiff in her jogging two abreast (though she was on the inside) on the highway on a foggy morning rather than being on the grass margin which the defendant alleges caused the defendant driver to react by going on to the margin to avoid another vehicle following the tractor and being driven by a Mr. Keegan. In this vehicle Mrs. Keegan was a passenger.
4. The engineer, Mr. Glynn of Denis Woods and Associates, gave evidence. He examined the locus on the 31st January, 2013 just over a week over the accident in which he could clearly see tire marks of the defendant’s van on the grass margin. The total width of the road was 6.7m, the carriageway being 3.1m on the plaintiff’s side with a margin of 0.2m. The carriageway was slightly wider on the other side, i.e. 3.2m with 0.02m hard margin.
5. Mr. Glynn gave uncontested evidence as to the duties of drivers and indeed of pedestrians and stated that the width of the defendant’s vehicle was 1.63m. Two persons running reasonably close together would take up approximately 1m.
6. The plaintiff stated that as she was running she saw the tractor pass her by and then she saw the defendant’s van. She gave a distance to Mr. Glynn that the vehicle would have been when she first saw it as about 50m or 60m away but when she gave evidence in court she estimated the distance at approximately the length of court number two, a considerable distance less.
7. The defendant’s counsel make the point that if she was 50m to 60m away that the van travelled some distance on its carriageway before it turned into the grass.
8. The plaintiff however states that when she first saw the van shortly afterwards it moved onto the grass cutting off her escape line.
9. The defendant himself did not give evidence but statements from Mr. and Mrs. Keegan who were travelling behind the tractor travelling in the same direction but on the other side of the road as the plaintiff were read into evidence by agreement in the absence of Mr. and Mrs. Keegan.
10. The Keegans essentially say that there was “dense fog”, that they were going slowly, that they were keeping a distance behind the tractor and trailer when Mrs. Keegan noticed the plaintiff and her friend, who was wearing a grey jacket, on the side of the road and “when they were level with the joggers I saw a blue van coming in the opposite direction”. Mr. Keegan does not think that the van was travelling fast. Mrs. Keegan before she saw the van remarked apparently that an accident was likely and the Keegans saw the accident in the driver’s door mirror.
11. I accept that the morning became somewhat foggy. I have photographs taken by the plaintiff’s friend at some time after the incident when the ambulance was still on the locus and you would describe the weather there not as dense fog but as misty or somewhat foggy.
12. The plaintiff has also been criticised for not having a high visibility jacket and while she did not have a high visibility jacket her clothing at the time was shown to me and there is no doubt that it was bright. In any event the defendant does not make the case that he did not see the plaintiff until late in the day. As indicated the defendant’s driver has not given evidence at all but I believe that the defendant and her friend were there to be seen.
13. The accident was clearly caused by the defendant’s driver miscalculating. Had he continued along the road even had the plaintiff not stepped into the grass margin, which I believe she would have done so, there was sufficient room for the defendant’s vehicle to pass by the plaintiff and her friend still jogging at the side of the road even if the other carriageway was taken up by the Keegans’ vehicle.
14. It does seem to me that from the Keegans’ evidence that the Keegans’ vehicle had clearly passed by the locus of the accident and the right hand carriageway was available to the defendant’s driver but in any event had it not been available the left hand carriageway would have been available even had the plaintiff continued jogging on the highway.
15. Unfortunately the defendant’s action in driving his vehicle onto the grass margin is indicative of either that he was not keeping a sufficient lookout until the last minute or that he was driving at an excessive speed or in any event that he entirely miscalculated the situation thinking that he should drive onto the grass margin thus clearly cutting the plaintiff off from her natural line of escape on to the grass margin.
16. I find that had the defendant continued on the roadway the plaintiff would have gone on to the grass margin and no accident would have occurred.
17. The weather conditions were not as foggy as the Keegans believed, it may be that they had just emerged from a pocket of denser fog. The fact that the Keegans did not see the plaintiff on the far side of the road until shortly before the impact is of course of no relevance as the Keegans had no business to be looking on to the right hand side of the road in the first place.
18. The plaintiff is, as has been admitted entitled to succeed against the defendant, I do not find any contributory negligence against the plaintiff, she was entitled to be on the public highway, there was not excessive traffic, a tractor and trailer passing by with another car behind it is not excessive traffic. As soon as the plaintiff saw the defendant’s motor vehicle coming against him, it moved onto the grass margin and accordingly, she is not to be faulted for being on the public highway and her natural line of escape onto the grass margin was denied by the actions of the defendant. Accordingly, the plaintiff is entitled to succeed against the defendant in full.
Damages
19. By sensible, if late agreement between the parties, special damages have been agreed in the sum of €14,000.
General Damages
20. It is trite law to say that the purpose of general damages is to place a plaintiff in the same position as he or she had been before the commission of the tort. In relation to general damages for pain and suffering, of course, this is an imprecise exercise. If a person has lost an eye in an accident caused by the negligence of the defendant, it is impossible to place that person in the position that they were prior to the accident.
21. An award of money is, of course, all that the courts can do, and is “notional or theoretical compensation to take the place of that which is not possible, namely actual compensation” – see Rushton v. National Coal Board [1953] 1 Q.B. 495 at 502.
22. A judge in a personal injury action must place himself or herself in the position of a jury and to provide reasonable compensation for the pain and suffering the plaintiff has endured and will likely to be endured in the future. The process of assessment must be rational, bearing in mind that the particular effect of an identical or nearly identical injury will vary considerably between different persons.
23. In M.N. v. S.M. [2005] 4 IR 461, Denham J. (as she then was) held that there were a number of relevant factors when considering the assessments of the level of general damages:-
(a) An award of damages must be proportionate;
(b) it must be fair to the plaintiff and to the defendant;
(c) it should be proportionate to social conditions, bearing in mind the common good; and
(d) it should also be proportionate with the legal scheme of awards made for other personal injuries.
24. As was eloquently made clear in the judgment of the Court of Appeal in Gill Russell v. HSE, there is no place in our jurisprudence for a public policy approach to damages.
25. Accordingly, while any award for compensation cannot restore to a plaintiff a lost eye or limb, or heal a chronic pain, an award of general damages will provide the basis by which a plaintiff can compensate himself or herself for what they have lost. Such award of general damages may finance vacations, which would otherwise not be affordable, a new kitchen or bathroom for the home or indeed a better home in the first place, or possibly may allow a plaintiff to indulge a passion for motor cars to provide for regular purchases. A plaintiff may use his general damages to give himself or herself the security of knowing that his family are provided for or that his children are given a third level education. The list is, of course, endless and shows that an injured plaintiff can utilise his compensation to provide himself degrees of happiness in other fields which would not otherwise be possible.
26. In assessing general damages, a judge must always remind himself or herself of the warning that would have been given to juries of old that they must fair to the plaintiff and fair to the defendant and must not allow emotions to take hold and, in effect, he must assess damages bearing in mind the principles outlined in the Supreme Court in M.N. v. S.M. (above).
27. In a number of recent decisions, the Court of Appeal has emphasised the entirely clear proposition that modest claims should get modest damages, moderate claims should get moderate damages, and serious injuries should get, in effect, serious damages.
28. This case is not, of course, a issue of catastrophic damages but in a number of recent decisions the Court of Appeal has referred to the “cap” on general damages and it has been suggested that the “cap” should, in some sense, be a yardstick for other cases involving less damages and accordingly, the position of the “cap” must be examined.
29. In the case of catastrophic injuries, an important development was the decision of the Supreme Court in Sinnott v. Quinnsworth [1984] ILRM 523, the plaintiff, in that case, was as a result of an accident quadriplegic and totally dependent for his care on others.
30. The plaintiff in that case was awarded £800,000, by a jury for general damages and appropriate damages for future care and future expenses.
31. In Sinnott, O’Higgins C.J. referred to the Supreme Court judgment in the case of Reddy v. Bates[1983] 1 I.R. 141 at 148:-
“…the fact that a plaintiff has been awarded what is considered to be sufficient damages to cover all her prospective losses, to provide for all her bodily needs, and to enable her to live in comparative comfort (having due regard to her disabilities), should be reflected in the amount of general damages to be awarded.”
32. Reddy v. Bates is, of course, also authority that in a case where damages are to be assessed under several headings, a court should consider the total sum of the award to ascertain whether it is in all the circumstances fair and reasonable.
33. In Sinnott, the Supreme Court fixed what has been referred to subsequently as a “cap” and general damages at £150,000. Over the time, this “cap”, as was anticipated by the Supreme Court in Sinnott has been altered.
34. The ratio of the cap was stated by O’Higgins C.J. in the following terms:-
“In my view a limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which obtain in our society. In a case such as this (my emphasis added) regard must be held to the fact that every single penny of monetary loss or expense which the plaintiff has been put through in the past or will be put to in the future has been provided for and will be paid to him in capital sums calculated on an actuarial basis. These sums will cover all his loss of earnings, past and future, all hospital and other expenses in relation to past and future and the cost of the special care which his dependence requires and will require for the rest of his life…”
35. It is clear, therefore that the cap only applies “in a case such as this” i.e. when a person who has been catastrophically injured has all his or her future needs and cares as well as his past expenses paid for. It is fair to say that as litigation has developed, plaintiffs who are catastrophically injured have under the headings of special damages today a considerably greater array of needs catered for than even was the case at the time of Sinnott. Specially adapted motor vehicles, special adapted motorised wheelchairs, cost of carers, cost of holiday with a number of carers, cost of adaptation or purchase of new accommodation etc. It follows that for a catastrophically injured plaintiff whose daily needs are going to be provided by special damages, the role of general damages to provide for the range of items I touched on above is not as extensive as in an ordinary case.
36. The most recent and indeed comprehensive review of the “cap” as considered in Sinnott v. Quinnsworth was set out by the decision of Quirke J. in Yun v. MIBI [2009] IEHC 318, which was referred to with by approval by MacMenamin J. in the Supreme Court in Carney v. McQuillan [2012] IESC 43.
37. Quirke J. set out the approach of the courts in the assessment of general damages in very serious or catastrophic cases as follows:-
“(i) 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.
(ii) 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 including ‘contemporary standards and money values’.
(iii) 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.
(iv) 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.
(v) 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.”
38. Quirke J. increased the equivalent value in 2008 of the 1984 cap of £150,000, from €400,000 which it then was to €500,000 and then made a downward adjustment due to the reduction in wealth and living standards in the State which had commenced in 2008 in the economic crash and which would be expected to continue for a further period and reduced accordingly the practical limit to €450,000.
39. Accordingly, the “cap” placed on general damages is not €450,000 but €500,000, as Barton J. stated in Mullen v. Minister for Public Expenditure and Reform [2015 No. 1728 P.] (decision 5th May, 2016) that the figure should now, after the comprehensive review in 2008 by Quirke J. clearly be €500,000. I have in a number of other decisions indicated that figure should be capped today given the economic recovery.
40. Accordingly, the role of the “cap” in general damages must be considered in the light of the fact that the determination in Sinnott was made after express reliance was placed upon the earlier decision of the Supreme Court in Reddy v. Bates, that the plaintiff had by the special damages been already compensated to cover all her prospective losses and “cap” was expressly stated to apply in “a case such as this”. In which:-
“every single penny of monetary loss and expenses which the plaintiff has been put in the past or will be put to in the future has been provided for and will be paid to him in capital sums calculated on an actuarial basis.”
41. It has been pointed out by the learned authors in McMahon and Binchy that the injuries suffered by the plaintiff in Sinnott though clearly catastrophic were not the most serious possible to imagine. But, in these catastrophic or very serious cases in which they are substantial sums of special damages for past and future care and aids and appliances and in which the loss of earnings are covered, the possible uses to which general damages will be put by such a plaintiff are not the same as in a case of a plaintiff who has suffered similar injuries but for one reason or another was not entitled to significant special damages.
42. The learned authors in McMahon and Binchy (4th Ed.) Law of Torts, para. 44.237 to 44.239 are somewhat critical of an approach that takes into account in general damages the fact that special damages have been awarded. However, given the purpose of general damages of personal injuries as I outlined above and the practical effect that full provision of the special damages will have on a plaintiff, I believe a rational distinction can be made and the “cap” can be justified in the cases as provided for in Sinnott.
43. Irvine J. in Shannon v. O’Sullivan, in effect, agrees with this criticism and states:-
“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.”
With respect to clear logic of that statement, it runs counter to the reasoning in Sinnott. I have in the previous paragraph 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.
44. Morris P. in Kealy v. Minister for Health (Unreported, High Court, 19th April, 1999) distinguished Sinnott on the basis, inter alia, that the Kealy case did not involve an award of very large sums for medical care, loss of earnings etc. and on the basis of Reddy v. Bates and indeed, Sinnott, that the court should have regard to the total sums when considering that the award was reasonable.
45. Similarly, Keane C.J. in Fitzgerald v. Treacy [2001] 4 I.R. 405, understood the Sinnott “cap” only applying in cases of catastrophic injuries where the plaintiff has received “very substantive damages to allow for nursing care, adaptation of a house the person was living in…etc.”
46. It is, I believe, from all the authorities that the “cap” and general damages is not the “price” in general damages intended to put the injured party into the position that he or she would have been had the tort not occurred but rather only occurs in those cases in which they are very substantial injuries with a high element of special damage which, in effect, takes care of all the general needs of a plaintiff.
47. Geoghegan J. in Gough v. Neary [2003] 3 IR 92 at 132, confirmed the view that the “cap” is not applicable if the special damages are low though the “cap” can be taken into account in a general way in assessing the appropriate general damages in a non-cap case.
48. 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.
49. As Barton J. stated in Mullen (above) at para. 35:-
“…absent significant claims in respect of pecuniary losses into the future, such as claims for future medical treatment, care, accommodation, aids, appliances and loss of earnings, the Court is not constrained by the so called upper limit or ‘cap’ applicable to cases involving such claims; though this does not mean that the figure representing the upper limit or ‘cap’ cannot be taken into account in a general way when an assessment of appropriate general damages or compensation is being made in a non ‘cap’ case. See Gough v. Neary [2003] 3 IR 92 at 132.
In such a case an award of general damages or compensation may not only exceed but exceed substantially the ‘cap’ applicable to an award of general damages in a case where substantial future loss claims are made. See B. v C. [2011] IEHC 88, where Clarke J. awarded €700,000 in respect of injuries which, whilst very serious, were less than catastrophic and where the case did not involve a claim for substantial future medical treatment or care costs.”
50. 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.M. 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.
51. Accordingly, the “cap” is not and never could be a measure by which other cases should have their damages reduced.
52. 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”.
53. With this in mind, I consider the recent decisions of the Court of Appeal in Payne v. Nugent [2015] IECA 268, Nolan v. Wirenski [2016] IECA 56, and Shannon v. O’Sullivan (Unreported, 18th March, 2016).
54. The decision of Payne v. Nugent does not refer to any authorities other than the role of an appellant court as set out by McCarthy J. in Hayes v. O’Grady [1992] ILRM and in that case, the court was apparently not referred to any of the authorities I have discussed above and Irvine J. referred to the “upper range” as being around €400,000. It is unfortunate that the Court of Appeal was not advised of the comprehensive judgment of Quirke J. in 2008.
55. The Court of Appeal concluded that the award of general damages in that case was not reasonable or proportionate.
56. In Nolan v. Wirenski, the Court of Appeal did refer to the “cap” of €450,000 as being:-
“…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.”
57. The court went on to state:-
“…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….”
58. In the case of Shannon v. O’Sullivan, the Court of Appeal restated the approach it adopted in Nolan and stated:-
“minor injuries should attract appropriately modest damages, middling injuries moderate damages, severe injuries significant damages and extreme or catastrophic injuries damages which are likely to fall somewhere in the region of €450,000.”
59. With respect, the above analysis with one caveat is entirely correct. The caveat is that if the Court of Appeal was suggesting that the general damages in the case of catastrophic injury are limited to €450,000 (or €500,000) that would be a misinterpretation with respect of the decisions of the Supreme Court in Sinnott and the other cases referred to above. The limit or “cap” only applies where there are significant special damages.
60. Accordingly, I am compelled to conclude that the reference in Shannon to “the region of €450,000” was not to suggest the “price” of catastrophic injury or the most serious injury is €450,000 or (€500,000) and the Court of Appeal in its determination was nearly setting out the very proper proposition that damages must be proportionate to the injuries.
61. I do not find that the remarks in the above cases by the Court of Appeal are to be taken, in any way, as to change the law clearly set out by the Supreme Court in Sinnott and the most that has been done, in my view, is to reiterate the proper principle as set out by Geoghegan J. in Gough v. Neary (above) and repeated by Barton J. In Mullen v. Minister for Public and Reform (above) that a court can take into account the “cap” in a “general way” in assessing the appropriate general damages in a “non-cap” case.
62. If there were to be a radical change in the law and the courts were to fix the amount of the “cap” as being the appropriate quantum for general damages of someone who has catastrophically injured and go on to assess the appropriate quantum of general damages in other cases measured by the price of the “cap” rather than the appropriate compensation for general damages in a catastrophic case then such a decision would run counter to the ratio of the Supreme Court in Sinnott and the subsequent decisions I have referred to above.
63. Furthermore, I believe such a radical departure in relation to general damages could only be interpreted as an exercise of public policy contrary to the express observations of Irvine J. in Russell (above) and in Shannon (above) and would require such alteration and departure from established authorities to be made expressly and without equivocation.
64. If established law is to be changed in such a manner it should be changed with “shouts of joy” and “trumpet blast”.
65. Adopting such considerations to this case and accepting entirely the observations of Irvine J. in Shannon (above) that:-
“…minor injuries should attract appropriately modest damages, middling injuries moderate damages, severe injuries significant damages…”.
I must approach this case on a proportional basis as outlined by Irvine J. above.
66. The plaintiff has sustained what is undoubtedly a significant injury, neither moderate nor very severe. I was furnished with medical reports on behalf of the plaintiff and on behalf of the defendant, neither party accepting necessarily the contents of the other parties’ reports. This tactic was adopted, as is frequently the case in personal injury litigation and from the good sense of the representatives of the parties. I have had a total of thirteen reports from a total of ten medical experts on behalf of the plaintiff and five reports from four experts on behalf of the defendant. It is clear that the defendant’s experts did not really contradict substantially what the plaintiff and her experts were saying and there was no suggestion that the plaintiff was, in any way, exaggerating her complaints and I found her to be pleasant and entirely truthful witness.
67. The plaintiff did suffer many and somewhat diffuse injuries to her right hand and wrist, right elbow, shoulder, an injury to her jaw with implications for her bite, trauma to her left neck and cervical spine, trauma to her sternum and left breast. She was also suffered psychological injuries, suffered from loss of balance or dizziness and dental pain.
68. The plaintiff was treated with a mixture of counselling and medications and courses in physiotherapy.
69. In relation to her symptoms, these as indicated were various including disorientation sickness, gagging on rotation of her head on the left side and feelings of being off balance and difficulty of holding her head and occasional tinnitus. A balance test indicated reduced balance function in both ears.
70. In relation to her jaw, she has been diagnosed with a chronic inflammation in her left tempormandibular joint and persistent low grade discomfort of her muscles of her face. Some progress was made in this regard. The defendant’s experts accept that the plaintiff’s imbalance was caused by the accident and the blow to the left side of her head likely to have caused concussion in her ear and the defendant’s Oral Surgeon, Mr Brady, accepts that her ongoing jaw and facial complaints are likely to be consistent with having sustained direct trauma to her jaw and he also relates continuing discomfort therein to the plaintiff’s significant anxiety problems which will be discussed below.
71. The plaintiff’s wrist was immobilised in a cast. Her wrist symptoms improved somewhat over time and her residual complaints in relation to any muscular or orthopaedic problems are centred on her neck and nausea and that she sometimes becomes unwell, she gags as if to vomit. The wrist and hand area was initially thought to have been fractured and then that was ruled out. However, the ultimate conclusion is that she had a flake fracture of her right wrist and the pain here, though it has improved, was significant at first.
72. In relation to her neck, Mr. O’Connor found a reduction of range of motion of cervical spine with a 50% reduction in lateral rotation to the left which results in the nausea and dizziness referred to and Mr. O’Connor is of the view that the plaintiff is unlikely to further improve.
73. The plaintiff’s Neurosurgeon, Mr. Nagari, states the plaintiff had a “very severe” musculoskeletal type of injury as a result of the impact which has alleged hyperextension/flexion type of injury leading to “significant soft tissue musculoskeletal pain”. The plaintiff has rejected the possibility of injections as Mr. Nagari felt there was only a 50% that these might be of assistance.
74. Of great concern to the plaintiff is that she developed syrinx. Mr. Nagari is of the view that there is a 40 – 50% chance that there is a direct relationship to the injury and is of the view that it is unlikely that this will cause her problems in the next few years but that there is a “20 – 30% chance that in the next ten years that it will expand”.
75. The plaintiff is very concerned about this but as the plaintiff’s doctors do not place the relationship of the syrinx to the accident being above 50%, I will have to out rule that as a symptom to be attributable to the accident.
76. I do find, however, that one of the most significant aspects of the plaintiff’s injuries was the psychological problems that she endured.
77. It is clear, as I note from the defendant’s Psychiatrist, Dr. Sinian, that the plaintiff would have been a “vulnerable person” in relation to these problems that she had untreated depression in her late teens after a large dose of steroids to cure her asthmatic condition. She also had a bout of depression in 2002/2003, after that up to the accident she was well. Dr. Sinian agrees that the plaintiff did suffer as a result of the shock of the accident and in particular, the fact that she felt that she was nearly killed in it, symptoms of “Post Traumatic Stress Disorder with anxiety being a prominent feature of it”.
78. Her own psychiatrist, Dr. Paul McQuaid, states that the plaintiff conforms to the criteria of:-
“(i) Chronic Post Traumatic Adjustment Disorder with associated anxiety and mood features. She is quite troubled and sad; and
(ii) Persistent Neurological Disorder.
79. I have observed the plaintiff giving evidence and on a number of occasions she was clearly distressed by recounting the accident and indeed, her injuries. In this she is supported by doctors on both sides.
80. Prior to the accident, the plaintiff was a very active lady who engaged in triathlons and used to engage in a number of 5km runs and numerous other demanding physical sports. However, since the accident the plaintiff has been unable to participate in her triathlons or 5km runs but she does walk most days some 8km into a local town and keeps herself fit. The plaintiff is a secondary school teacher. She was not working at the time of the accident and was endeavouring to get back into part time work. She is now and has been for a year or two working reasonable full time and there is no case for loss of earnings.
81. The plaintiff has travelled extensively both before and after the accident and some of her treatments were in India.
82. Accordingly, I assess the plaintiff as being someone who has suffered a significant injury with ongoing problems which has had an affect on her life and is likely to persist. However, the plaintiff has managed, despite her psychological difficulties to not have the injury dominate her life and whereas I think the plaintiff will continue to be vulnerable. One is hopeful that once the trauma of litigation is passed that there will be some easing of the psychological symptoms.
83. And whereas none of the individual symptoms have caused significant debilitation to the plaintiff, the combination of all the different symptoms as outlined in the medical reports of both the plaintiff and of the defendant as such that the plaintiff’s past injuries must be regarded as significant and it is likely that a number of them will persist indefinitely into the future.
Damages
84. Special damages which are essentially medication and medical expenses have been agreed in the sum of €14,000.
85. The general damages to date for pain and suffering to date, I assess at €80,000. the general damages into the future, I assess at €40,000.
86. The total of the said general and special damages amount to €134,000, which I believe in all the circumstances is fair and reasonable.
87. I have not found the PIAB Book of Quantum to be of any assistance to me in this case.
Payne v Nugent
[2015] IECA 268
Judgment of the Court (ex tempore) delivered on the 10th day of November 2015 by Ms. Justice Irvine]
1. This is an appeal against the decision and judgment of High Court (Cross J.) dated 15th January 2015. The proceedings before him on that date concerned a personal injuries claim brought by the plaintiff in respect of a road traffic accident which occurred on 19th December 2012 at Sundrive Road, Dublin. On that occasion the plaintiff was travelling as a back seat passenger in the car which was rear ended by the defendant’s motor vehicle.
2. The trial judge having heard the evidence over two days assessed general damages for pain and suffering to date in the sum of €45,000, pain and suffering into the future in the sum of €20,000 and he then awarded agreed special damages of €2,985. It is against that award that the defendant appeals. The appeal made before the court today is a little different from that which was set out in the notice of appeal.
3. To summarise, Mr. Declan Doyle S.C on behalf of the defendant makes the fairly straightforward argument that the general damages awarded both in respect of pain and suffering to date and into the future were simply excessive and were not within the permissible range having regard to the evidence. In support of that submission he has drawn the court’s attention to a number of factors.
(i) The plaintiff’s medical condition was entirely managed by her general practitioner, Dr. Donoghue and her treatment, from an active perspective, had ended in March 2004 -fifteen months post accident.
(ii) Between March 2004 and the date of the trial the plaintiff did not receive any treatment for her back injury.
(iii) He refers to the fact that while the plaintiff also sustained a neck and shoulder injury this was one which, having regard to the evidence, had cleared within a period of seven months.
(iv) Insofar as the trial judge compensated the plaintiff for a psychological injury, the only evidence available to the court apart from that of the plaintiff, was that contained in the report of Dr. Cumiskey, consultant psychiatrist, who was retained by the plaintiff’s solicitor not to treat the plaintiff but merely to advise on her condition.
(v) Insofar as there was any ongoing symptomology at the date of trial, and he does not dispute that the plaintiff was still then symptomatic, he submits that taking all of the medical reports into account the plaintiff injuries were relatively minor given that she was not receiving any ongoing treatment
(vi) He concluded his submission by asserting that notwithstanding the plaintiff’s own evidence and taking into account all of her expert reports, the award made was well outside that which would be acceptable for a soft tissue injury.
4. In response to these submissions, Mr. Finbar Fox S.C on behalf of the plaintiff makes the following arguments. He states that the trial judge listened to the evidence given by the plaintiff and accepted her evidence that she had an ongoing chronic back complaint up to the date of the trial and that this had interfered with her quality of life. He referred the court to the fact that the transcript shows that her evidence in this regard was not seriously challenged.
5. In response to the emphasis that Mr. Doyle had placed on the fact that the plaintiff had not been referred to any medical experts for treatment and that all of the expert reports had been obtained by her solicitor, Mr. Fox submits that even though these were obtained by the plaintiff’s solicitor’s they were requisitioned to better explain to the court the extent of her injuries. In these circumstances the court was obliged to consider the content of the reports and to ignore their provenance. The reports were there to guide the court and it would be wrong for the court to dilute the diagnoses and conclusions contained therein just because they were from experts to whom the plaintiff had been referred by her general practitioner.
6. Mr. Fox submits that that the injuries sustained by the plaintiff were significant and that the award made by the trial judge for pain and suffering to date was well within the appropriate range. Likewise he maintains that the award for pain and suffering into the future was appropriate. Further, the later was proportionate to the award made for damages for pain and suffering to date and reflected the conclusions of the trial judge that the plaintiff was still symptomatic and would likely be symptomatic into the future.
7. The first matter to be considered is the role and jurisdiction of this court when engaged upon an appeal of this nature. As the parties are well aware, the oft quoted judgment of McCarthy J. in Hay .v. O’Grady [1992] ILRM sets out the principles which guide the court when exercising its appellate jurisdiction. I will just briefly refer to a number of the paragraphs from his judgment. He advised and cautioned as follows:-
1. Firstly, that an appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but also observes the manner in which it is given and the demeanour of those giving it. The arid pages of transcripts seldom reflect the atmosphere of the trail.
2. Secondly, if the findings of fact made by the trial judge are supported by credible evidence this court is bound by those findings however voluminous and apparently weighty the testimony against them may be given that truth is not, he advised, a monopoly of any majority.
3. Thirdly, insofar as inferences of fact are drawn by a judge at first instance, it is open to an appellate court to substitute its own inferences. However, he cautioned against such an approach where those inferences were drawn from the judge’s assessment of the oral evidence.
8. It is important in the context of the role of the appellate court on this appeal to mention one particularly important factor namely that the evidence before the trial judge, with the exception of the plaintiff’s own evidence, was all to be found in the medical reports which were produced by the parties and were given to the trial judge to be taken into account in coming to his conclusions.
9. To this extent, this court is in just as good a position as the trial judge to assess the weight to be attached to the evidence contained in those reports although remaining conscious of the fact, that while it has the transcript of the plantiff’s evidence, it it not have the benefit of hearing that evidence.
Judgment of Cross J.
10. I will refer to what are perhaps some of the more salient findings of the trial judge because, in assessing whether or not his award was within or outside the acceptable range, the court clearly is bound by his findings in so far as they are supported by the evidence.
11. I can summarise these in the following manner:-
(i) He said that there was very little conflict in the evidence.
(ii) He found the plaintiff to be a truthful witness who did not exaggerate.
(iii) He accepted that she was dazed as a result of the accident and that soon after she developed shoulder, neck and back pain.
(iv) He concluded that her shoulder rapidly cleared and that her neck throughout 2013, whilst troublesome, had, in effect, cleared before the trial even though he accepted her evidence she said that at times it had “its moments”.
(v) As to the plaintiff’s back, this had troubled her during 2013 and has caused her some sleep deprivation. He accepted the evidence in Dr. Thakore’s report that her back was fifty per cent better in 2014. However, that leaves open to this court a need to assess how severe the trial judge considered the plaintiff’s back problem was at the outset. That is a matter which is clearly relevant to any appraisal of the award made by the trial judge. Some guidance as to the severity of the plaintiff’s back problem from inception is to be found in the expert reports which this court has seen. From these it is clear that the plaintiff’s general practitioner initially prescribed some pain killers and anti inflammatories. Her own evidence was that she also used heat pads on her back in the initial phase and that she attended for two or three sessions of physiotherapy after which she carried out a home exercise programme. The only other medication she was prescribed was a trial of Lyrica which she took for a week in 2013 and for four weeks in 2014.
(vi) It should however be notes that the plaintiff was due to have an epidural injection in January 2014 but that was cancelled. Mr. McQuillan in his report said that it was to be re-scheduled shortly but it had not happened twelve months later.
12. Relevant to the assessment of the severity of the plaintiff’s back problem is, I believe, the fact that while she attended her general practitioner on a number of occasions during the first fifteen months up to 7th March 2014, there was no attendance thereafter. Every subsequent appointment was solely for the purpose of medical legal review. There was no medical intervention of any nature post March 2014 i.e fifteen months post accident.
13. It is clear from the judgment of the trial judge that apart from finding that the plaintiff had an ongoing back problem, the severity of which I have just discussed, he also accepted that she had developed an adjustment disorder and had suffered from low mood. Dr. Cumiskey, in her medical report advised that she first saw the plaintiff sixteen months after her accident and had diagnosed her as having developed a type of adjustment disorder of a moderate nature.
14. Based upon the combination of the physical and psychological injuries to which he referred, the trial judge went on to conclude that the plaintiff’s injuries, whilst significant, were not as severe as those suffered by many involved in accidents of a similar type. From that statement it is to be inferred that the judge, in terms of his assessment of the severity of the plaintiff’s injuries, was satisfied that they were certainly not in the upper range of injuries of a soft tissue nature with some psychological component.
15. Mr. Fox is correct however that it is not for the court to trim or tamper with the damages awarded by a judge at first instance unless it is satisfied that the award was significantly outside that which it might consider to be appropriate.
Decision.
16. Needless to say it is regrettable that people get injured due to the negligence of others given that an award of damages for pain and suffering cannot restore the victim to the physical or mental status they enjoyed prior to the infliction of their injuries. In this context it is important that compensation, when awarded by the court, in respect of pain and suffering should be reasonable and proportionate in all of the circumstances.
17. 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 sufering 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.
18. For my part I fear there is a real danger of injustice and unfairness being visited upon many of those who come to litigation seeking compensation if those who suffer modest injuries of the nature described in these proceedings are to receive damages of the nature awarded by the trial judge in this case. If modest injuries of this type are to attract damages of €65,000 the effect of such an approach must be to drive up the awards of those in receipt of the more significant middle ranking personal injuries claims such that there is a concertina type effect at the top of the scale of personal injuries. So for example the award of general damages to the person who loses a limb can be little different to the award made to the quadriplegic and that simply cannot be just or fair.
19. So for my part, while I accept that the damages awarded for pain and suffering must be reasonable having regard to the injuries sustained they must also be proportionate to the awards commonly made to victims in respect of injuries which are of significantly greater or lesser import. Modest injuries should attract moderate damages. Thus I regret to say I consider the award made by the trial judge in this case was unduly generous to the point that it has strayed outside the parameters which I would consider appropriate for the injuries concerned.
20. This being so I would propose a reduction in the award of the general damages for pain and suffering to date to €30,000. I would further propose that the award for damages for pain and suffering into the future, which on any view of the medical reports was considered likely to be very modest, would be confined to a sum of €5,000.
21. Accordingly I would allow the appeal and, having regard to the agreed special damages would substitute an award of €37,985 for that made in the High Court.