October-17-2018 in Healthcare Law, Litigation & Dispute Resolution
A recent High Court1 case reiterated and applied the binding principles laid down by the Court of Appeal and by the Supreme Court which must be applied in calculating the appropriate level of general damages for any personal injury. The case concerned a claim by a Garda for compensation in respect of a soft tissue injury to his hand. Counsel for the applicant in reliance on the Book of Quantum suggested an award of circa €21,700. The court ultimately concluded that the appropriate amount of compensation was €5,000. While this case related to the Garda Compensation Scheme, the judgment is expressly stated as referring to all personal injury cases.
It was determined that in assessing damages, the court is obliged to be 'fair' to both parties and that any award must be 'proportionate' within the scheme of awards for personal injury damages and further that any such award must be objectively 'reasonable' in light of the common good and social conditions2.
Fairness
The level of award must be fair to the plaintiff and the defendant. Whilst the amount must be fair to the plaintiff in terms of the injury suffered, it must also be fair to the party funding it, in this case, the State. The fact that the State or any defendant has considerable resources does not mean that it should be treated differently to any other defendant in a personal injuries action.
Proportionality
There is a requirement for personal injury awards to be proportionate to the 'cap' on general damages which is currently €450,000 for pain and suffering for the most catastrophic injuries. The court noted that there are four types of injuries: - modest injuries, middle ranking injuries, serious injuries and catastrophic injuries. The court when applying the 'proportionate principle' to modest and middle ranking injuries is obliged by Court of Appeal dicta to avoid the 'concertina type effect' whereby high awards for modest injuries drive up awards payable for middle ranking injuries. The court must ensure that there is a significant difference between awards for each category, as failing to do so, risks an injustice on more seriously injured plaintiffs. In applying this principle, the court must place the injured person at the appropriate place on the scale.
Objectively Reasonable
Awards must be reasonable in light of the common good and social conditions. The court is to apply the 'average earnings principle' whereby the value of pain and suffering must be related to average earnings. This requires the court to assess how long an average person has to work to make up the notional award.
Other points to note
The court must be mindful of the recent downwards 'recalibration' by the Court of Appeal of awards of general damages for personal injuries3; the present Book of Quantum having been published in 2016 and relating to awards for 2013-2014.
The court must apply common sense and a degree of scepticism to claims made by plaintiffs regarding the extent and effect of the injuries in support of their claims for damages/compensation. This is not because of presumed dishonesty on the part of the plaintiff, but rather in light of 'human nature'.
While the mechanics of calculating general damages for personal injuries remain an inexact science, the helpful principles set out in this important judgment provide some greater clarity in how they are to be determined.
For further information please contact Deirdre Nally, solicitor in the healthcare team at Hayes solicitors at dnally@hayes-solicitors.ie.