by Katie Nugent November-23-2023 in Healthcare Law
The Personal Injuries Guidelines commenced on 24 April 2021 and apply to personal injuries actions which issued after that time. Under the guidelines, each injury is valued separately, and this can cause some difficulty in cases involving multiple injuries where if each injury was valued individually, it could lead to overcompensation as a whole. In Agnieszka Zaganczyk v John Pettit Wexford Unlimited Company and C & M Delaney Limited 2023 IECA 223, the court considered the correct approach to be taken in the assessment of damages for personal injuries where multiple injuries are concerned and how any ‘uplift’ ought to be applied.
The key considerations for the court were the need for consistency in comparison with other awards and proportionality. The Court of Appeal reduced the High Court award for general damages following a ‘reality check’ finding that the High Court award was ‘disproportionate to a degree that renders it an error of law.’
Background
Following an explosion of a gas oven at her workplace, the plaintiff suffered burn injuries to the left side of her face, neck, ear and left hand/arm. She also went on to develop psychiatric injuries. The claim proceeded as an assessment of damages in the High Court and medical reports and special damages were agreed by the parties.
High Court
In turning his attention to the guidelines, the trial judge said that he was clear that the plaintiff’s post-traumatic stress disorder (PTSD) was the plaintiff’s most significant injury, and he concluded that the PTSD was at the lower end of the serious category and felt that a figure of €45,000 was appropriate. The plaintiff’s difficulties with alcohol and depression were treated separately and a figure of €20,000 was awarded for same, treating it at the lower end of moderate. In respect of the burns and scarring, a figure of €20,000 was deemed appropriate.
The trial judge then reflected on the entire figure awarded of €90,000 and was satisfied that it did represent a fair, reasonable and proportionate award.
Court of Appeal
The defendants appealed on the grounds that the award was excessive by virtue of the trial judge’s misapplication of the Personal Injuries Guidelines. The defendants claimed that the judge was wrong to classify the plaintiff’s PTSD as falling within the ‘serious’ category and secondly that he was wrong to separately award two different sums for psychiatric injury which led to the plaintiff being overcompensated.
The defendants contended that the judge also awarded too much in respect of the scars which he had referred to as ‘not very serious’ but he failed to identify which bracket of the guidelines most closely reflected those injuries and what factors he relied on in reaching his assessment.
Mr Justice Noonan noted that the provisions in the introduction to the guidelines set out an approach to assessing damages in multiple injuries cases based on identifying the most significant injury and the bracket into which it falls into and uplifting the award to take account of lesser injuries. It was further stated that ‘it is of the upmost importance that the overall award of damages made in a case involving multiple injuries should be proportionate and just when considered in light of the severity of other injuries which attract an equivalent award under the guidelines.’
Mr Justice Noonan, stressed the importance of proportionality when making an award for general damages. He considered his judgment in Meehan v Shawcove Limited [2022] IECA 208 (a case which pre-dated the introduction of the guidelines ) where he had stated that “proportionality in this context means that the award of damages must be proportionate to the maximum that may be awarded in the most serious cases, €500,000 [now €550,000 under the guidelines] and must also be proportionate in the context of other awards of damages for greater, lesser or similar injuries.” In that case, Mr Justice Noonan went on to say that ‘the concern identified by the Guidelines is that if one were to separately take each injury and value it individually, there would be a risk of overcompensation.’
In light of the above, Mr Justice Noonan had stated that ‘the court must strive to take a holistic view of the plaintiff and endeavour to place the plaintiff’s particular constellation of injuries and their cumulative effect on the plaintiff within the spectrum in a way that is proportionate both to the maximum and awards made to other plaintiffs.’
Mr Justice Noonan noted that the approach for the uplift provided in the guidelines was considered in some detail in McHugh v Ferol [2023] IEHC 132 where it was stated by Murphy J that ‘..it appears that a fair and transparent means of assessing what the uplift should be in any given case is to categorise each of the additional injuries according to the bracket that it would fall into were that the main injury and then discount the award to allow for the temporal overlap of the injuries.’ Mr Justice Noonan felt that this approach had much to commend it.
Mr Justice Noonan emphasized that ‘whatever mathematical approach is adopted, it is important not to lose sight of the global impact of all the injuries on the particular plaintiff concerned.’ He noted that the plaintiff is entitled to be compensated for all the suffering they have endured but that consideration of how the overall award compares with other individual categories in the guidelines could provide a helpful ‘reality check’ and ensure the requisite proportionality has been achieved.
Decision
The Court of Appeal found that the trial judge erred in treating the plaintiff’s PTSD as falling into the serious category. It noted that the parties had agreed that it had fallen into the ‘moderate’ category and there was no evidence of any significant disability for the foreseeable future. It was also stated that a cumulative award for psychiatric injury in this case of €65,000 clearly offends the doctrine of proportionality. Mr Justice Noonan noted that it was ‘out of kilter’ with the award in Lipinski v Whelan (A minor) [2022] IEHC 452 but also with other awards under the guidelines themselves.
In respect of the scarring, the Court of Appeal found that it was unsatisfactory that there was nothing to indicate how the trial judge applied the ‘uplift’ principles to the assessment of this figure. However, in circumstances where the amount did fall within the relevant range and where the judge had the benefit of viewing the plaintiff’s scar, the Court of Appeal declined to interfere with same.
Arising out of the above, the Court of Appeal substituted an award of €60,000 for general damages.
Comment
The decision provides some guidance on the need for consistency and proportionality between awards and the Court of Appeal indicated that a helpful ‘reality check’ in terms of proportionality would involve consideration of how the overall award compared with other categories in the guidelines.
More recently, the Court of Appeal also considered a challenge to a PIAB award for failure to provide reasons when assessing damages under the guidelines. In Wolfe v PIAB and Mater Misericordiae Hospital [2023] IECA 245, it was argued that the PIAB assessment did not set out how the dominant injury was identified and what uplift, if any, applied in respect of any lesser injuries. Arising out of this decision, PIAB will be required to provide more information in relation to how lesser injuries are compensated where a dominant injury has been identified so that the plaintiff can determine the amount for the lesser injury or the amount which relates to ‘an uplift.’
The Judicial Council Act 2019 provides for a review of the Personal Injuries Guidelines within 3 years of the first guidelines being adopted by the Council and at least once thereafter every 3 year period beginning on the completion of the first review. Therefore, the guidelines are due for review in early 2024 and it is expected that these recent Court of Appeal decisions will be considered by the Personal Injuries Guidelines Committee as part of their overall review.
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About the Author
Katie Nugent
Katie is an Associate on the Healthcare team at Hayes solicitors.
She specialises in the defence of medical and dental claims taken against both public hospitals and private clinicians. Prior to joining Hayes solicitors, Katie worked for four years in the area of insurance defence litigation with a particular focus on personal injury claims. She also trained in general practice with a particular focus on plaintiff personal injury claims.