by Robbie Slattery November-04-2020 in Litigation & Dispute Resolution

Following a recent judgment of the Court of Appeal emphasising the need for regard to the Book of Quantum in assessing personal injuries awards (discussed here), the Court of Appeal has once more reduced the sum of damages awarded to a plaintiff on a similar basis.


Background

In Leidig v O’Neill1 the plaintiff was injured in August 2015 when a motorbike which he was riding was struck by the defendant’s car. He fractured the scaphoid bone in his wrist and ultimately required surgery as it failed to heal naturally. This required fixation using a screw and he was in a cast for 8 weeks following the surgery. His treatment concluded in September 2017 but at the date of trial he continued to have residual complaints. He had an operation scar of 5cm although that was well healed and non-tender. Expert evidence was to the effect that it is not unusual for someone who suffered this type of injury to complain of some ongoing symptoms and that whilst one would expect those symptoms to gradually improve he would most likely always have some pain. Indeed, the defendant’s own medical expert believed that the plaintiff had likely suffered loss of about 5% function to his hand.


High Court Judgment

The High Court Judge explicitly referred to and had regard to the Book of Quantum in assessing damages and found that the plaintiff’s injury fell within the ‘severe and permanent condition’ category and was “at the top end of that scale”. The High Court awarded a total of €155,000 in general damages, comprising €70,000 for pain and suffering to date, €40,000 for loss of job opportunity, €15,000 for loss of hobbies and €30,000 for pain and suffering into the future.


Court of Appeal Decision

The Court of Appeal granted an appeal against this decision on the basis that it amounted to an error of law. It emphasised that an award of damages must be proportionate in the context of the cap for general damages2 for the most serious injuries and in the context of past awards by the courts for comparable injuries. If the Book of Quantum is relevant to the injury in question the Court is obliged to have regard to its provisions.

In terms of wrist injuries, the Book of Quantum gave guides of the range of damages appropriate depending on the seriousness of the injury suffered, ranging between ‘minor’, ‘moderate’, ‘moderately severe’ and ‘severe and permanent conditions’. Accordingly, the High Court Judge had placed the injury in the most serious possible category in assessing damages at €155,000.

The Court of Appeal made the following specific findings in overturning that decision:-

  • The plaintiff’s injury was not a ‘severe and permanent condition’. That category is illustrated in the Book of Quantum by examples such as incomplete union of the bones which may lead to a fusion being required. In this case, although the injury took a protracted course the plaintiff ultimately achieved a good outcome without the need for such serious intervention. The injury was to the plaintiff’s non-dominant wrist and the Court of Appeal did not believe “on any realistic assessment that this could be categorised as a severe and permanent condition”.

  • Whilst the High Court did consider the Book of Quantum, Court of Appeal disagreed with the manner in which it should be applied to the facts of the case. The figures in the Book of Quantum encompass the entirety of the range of damages which might apply. Further, it was not appropriate to award €70,000 damages for past pain and €30,000 for future pain in circumstances where the absolute upper amount set out in the Book of Quantum is €78,000. In other words, the valuations given in the Book of Quantum include both past and future pain.

  • It is not permissible to award damages for ‘loss of hobbies’ as any such loss is encompassed within the damages for pain and suffering3.

  • The plaintiff’s injury should properly be characterised as falling within the ‘moderately severe’ category and, as a result, damages for pain and suffering should be reduced to a total sum of €65,000 for past and future pain.


Analysis

This decision underlines the fact that not only must a Court have regard to the Book of Quantum in assessing damages it must also apply the Book of Quantum in a specific way. For each injury dealt with in the Book of Quantum, four categories of seriousness are listed with the appropriate level of damages different for each. This decision suggests that only the very most serious of injuries should be found to come within the ‘severe and permanent condition’ range, which brings the highest valuation. This decision brings welcome clarity to the manner in which the Book of Quantum should be applied.

For further information on this topic, please contact Robbie Slattery rslattery@hayes-solicitors.ie at Hayes solicitors. 

1 [2020] IECA 296. The judgment is available here 
2 See Morrissey v HSE [2020] IESC 6.
3 See also Shannon v Shannon [2016] IECA 93.

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About the Author

Robbie Slattery
Robbie Slattery

Robbie is a partner in the Commercial & Business team at Hayes solicitors. Robbie advises on items such as shareholder agreements, share purchase agreements, joint ventures, business sales and business purchases. Robbie also advises on commercial litigation with a particular focus on high value, multi-party litigation, for corporate clients, State entities, charities and private individuals, both on the Plaintiff and Defence side.