by Áine Gleeson May-11-2016 in Healthcare Law
A recent Appeal Court decision almost halved a “wholly disproportionate” personal injury award.
The case of Nolan v. Wirenski [2016] IECA 56 came before Judge Barr in the High Court in July 2014 and resulted in a total award of €120,000. The personal injury claim arose from a road traffic accident in September 2010 where the plaintiff, Mrs Nolan, was the passenger in a car driven by her husband. The plaintiff claimed to have suffered significant injuries to her right shoulder, hand and thumb which resulted in approximately 60 sessions of physiotherapy and, at the time of the hearing - some four years post-accident - she still required daily pain killing medication. Judge Barr accepted her evidence that she was unable to lift her right arm above shoulder level and had difficulty finding a comfortable sleeping position. Ultimately, he found that the plaintiff was restricted in her ability to perform certain activities and was satisfied that it was unlikely that she would return to her pre-accident status.
In making his award, Judge Barr relied on that fact that the plaintiff remained symptomatic four years after the accident. The plaintiff was awarded €90,000 in damages for pain and suffering up to the date of the trial and a further €30,000 in respect of pain and suffering into the future.
The defendant appealed and the case came before The Court of Appeal in February 2016 when Judges Ryan, Irvine and Peart were sitting. The court found that the sum awarded by the trial judge was wholly disproportionate to the plaintiff’s injuries and significantly reduced the award to €65,000, consisting of €50,000 in respect of damages for pain and suffering up to the date of the hearing and €15,000 for pain and suffering in to the future.
Significant, not substantial
In reference to the assessment of damages in personal injuries cases, Justice Irvine noted that “it is important that minor injuries attract appropriately modest damages, middling injuries moderate damages and more severe injuries damages of a level which are clearly distinguishable in terms of quantum from those that fall into the other lesser categories. In this regard, just because a judge describes an injury as significant this does not mean that the damages must be substantial”.
The plaintiff’s credibility came under question before the Court of Appeal. First, the plaintiff withdrew her claim for past and future care of approximately €350,000 on the morning of the appeal hearing without explanation. Second, the defendant was in possession of video evidence. The Appeal Court was given the opportunity of viewing video footage which was adduced from a private investigator on behalf of the defendant. The footage showed the plaintiff carrying out seemingly painless tasks, raising her right arm above her head and waving at family, both actions which conflicted with her evidence to the trial judge.
In conclusion, the court found that “the trial judge accepted that the plaintiff had suffered a significant injury and awarded her a total sum of €120,000 in respect of pain and suffering (€90,000 to date and €30,000 into the future). In all the circumstances that sum was wholly disproportionate to her injuries. Although they might have been characterised as significant in so far as they reflected a departure from the state of health which she had enjoyed prior to the accident, they are undoubtedly at the lower end of the scale ranging from the minor to the most severe. For my part I am satisfied that the award was disproportionate and excessive to the point that it should be set aside”.
Read the full judgment here.
Back to Full NewsShare this article:
About the Author
Áine Gleeson
Áine is an associate solicitor in the Property and Private Client team at Hayes solicitors. She has over 12 years’ experience acting for corporate, private and public sector clients on all aspects of commercial conveyancing transactions, including site acquisitions, development of lands, property sales and purchases, and commercial leases.